Mabiala and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 3040

Mabiala and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3040 (27 August 2024)
Division:GENERAL DIVISION
File Number:2022/3926
Re:Ludovic Mabiala
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Henderson
Date:27 August 2024
Place:Perth

The decision of a delegate of the Respondent dated 22 April 2022, to refuse the approval of the Applicant’s application for citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) is affirmed.
.............[sgd]...........................................................
Member Henderson
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied applicant was of good character – Australian Citizenship Act 2007 s 21(2)(h) – Applicant is a citizen of France – Applicant’s offences include minor traffic offences, driving without a licence, stealing, breach of bail undertaking, providing false information relating to identify and providing false vaccination records – Applicant provided false and misleading information on incoming passenger card and resident return visa application – History of family violence reports – Tribunal cannot satisfactorily ascertain Applicant is of good character – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24, 24(6)(a), 52(1)(b)
Crimes Act 1900 (NSW) ss 59(1)
CASES
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Boy19 v Minister for Immigration & Border Protection [2019] FCA 574
Elias v The Queen (2013) 248 CLR 483
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231 FCR 128
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kabamba v Administrative Appeals Tribunal [2024] FCA 514
McIntyre v R (2009) 198 A Crim R 549
Minister for Home Affairs v G and Another [2019] FCAFC 79
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 136; 39 ALR 649; 61 FLR 354
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; 42 ALR 209; 63 FLR 441
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; (2000) 62 ALD 673; (2000) 33 AAR 1
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 ; 56 ALD 349
The Queen v De Simoni (1981) 147 CLR 383
SECONDARY MATERIALS
Judicial Commission of NSW publicly available at FOR DECISION
Member Henderson
27 August 2024
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent dated 22 April 2022,[1] to refuse the Applicant’s application for citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).
[1] R1, p 1.
The basis for the refusal was that the delegate was not satisfied that the Applicant was of good character, for the purposes of s 21(2)(h) of the Act.[2]
[2] R1, p 2.
The application for review of the Reviewable Decision is made in accordance with

s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision under s 24 of the Act.
BACKGROUND
The Applicant is a 35-year-old citizen of France.[3] He first arrived in Australia on

21 January 2012 as a holder of a Working Holiday (Subclass 417) visa,[4] and on 1 May 2019 was granted a Partner (Subclass 801) visa.[5]
[3] R1, p 1.
[4] R1, p 1.
[5] R3, ST3.
On 4 June 2021, the Applicant applied to the Department of Home Affairs (the Department) for Australian citizenship by conferral.[6] In the course of the application, the Applicant was asked whether he had been convicted of, or found guilty of, any offences overseas or in Australia, including traffic offences. The Applicant answered yes and referred the Department to his police clearances from Australia and overseas, submitted with his application for citizenship.[7]
[6] R2, T4, pp 12-32.
[7] R2, T4, pp 37-40.
On 3 August 2021 the Department requested an updated Nationally Coordinated Criminal History Check to be issued by the Australian Criminal Intelligence Commission (ACIC).[8] On 31 August 2021 a ‘check results report’ was generated for the Applicant which indicated that he had been convicted of offences, and further that there were charges pending against him.[9]
[8] R2, T9, pp 77-78.
[9] R2, T9, pp 77-78.
On 8 October 2021 the Department wrote to the Applicant inviting his comment.[10] The Applicant did not dispute that there were pending charges.
[10] R2, T9, pp 73-76
On 2 November 2021 the application was refused on the basis that a prohibition in

s 24(6)(a) of the Act was engaged.[11] The applicant applied to the Tribunal for review of that decision on 5 November 2021.[12] On 13 December 2021 a further Nationally Coordinated Criminal History Check was requested by the Department, and on 6 January 2022 a further ‘check results report’ was generated showing that there were no longer pending charges.[13] On 18 January 2022 the Tribunal set aside the decision to refuse the citizenship application and remitted it to the Respondent with a direction that the prohibition in

s 24(6)(a) of the Act did not apply.[14]
[11] R1, p 2.
[12] R1, p 2.
[13] R2, T12, pp 117-118.
[14] R2, T11, p 111.
On 31 January 2022, the Department invited the Applicant to comment on the offences linked to the Applicant’s ‘check results report’ dated 6 January 2022.[15] On 7 March 2022, the Applicant responded to the Department’s request with a statement.[16]
[15] R2, T12, pp 112-116.
[16] R2, T13, p 123.
On 22 April 2022, the Respondent’s delegate decided to refuse the application for citizenship (the Reviewable Decision) on the basis that the delegate was not satisfied that the Applicant was a person of good character.[17]
[17] R2, T15, p 139.
On 17 May 2022, the Applicant applied to the General Division of the Tribunal seeking review of the Reviewable Decision.[18]
[18] R2, T2, pp 4-10.
BARRIERS TO SATISFACTION OF GOOD CHARACTER
The Minister submits that there are five broad reasons why the Tribunal should not be satisfied that the Applicant is a person of good character:
(a)the Applicant has been convicted of multiple offences;
(b)the Applicant has been convicted of a serious violent offence;
(c)incident reports record the Applicant has committed acts of family violence against his ex-partner, some of which occurred in the presence of his infant children;
(d)the Applicant has been convicted of dishonesty offences; and
(e)overall, the Applicant’s behaviour indicates a longstanding disrespect and disregard for Australian laws.[19]
[19] R1, p 5.
The Minister says further that insufficient time has passed since the Applicant’s last offence for the Tribunal to be satisfied that he is a person of good character, noting that his last three convictions occurred after his application for citizenship.[20]
[20] R1 p5-6
GOOD CHARACTER ASSESSMENT: PRINCIPLES
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application.’[21]
[21] Australian Citizenship Act 2007 (Cth), s 21(2)(h).
Section 24 of the Act 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).
Accordingly, under s 24(1A) of the Act, 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’, that being the requirement of
s 21(2)(h) of the Act.
The expression ‘good character’ is not defined in the Act. There are no criteria contained in the Act by which the Minister is to consider what comprises good character, and it has been held that this is an indication that Parliament intended the term to be used in a broad way.[22] The words ‘good character’ are used in their ordinary sense.[23]
[22] Grass v Minister for Immigration and Border Protection[2015] FCAFC 44; (2015) 231 FCR 128 at [60].
[23] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431].
Matters that bear upon a person’s good character for the purposes of the Act are matters relevant to the obligations of citizenship as expressly or impliedly reflected in the Act, including its Preamble.[24]
[24] Boy19 v Minister for Immigration and Border Protection [2019] FCA 574 at [53].
The Preamble to the 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.
Guidance is set out in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship [Policy Statement], which came into force as of 27 November 2020 (the Policy).
As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[25]
[25]G at [57]-[62].
CPI 15(4) provides that an Applicant of good character would, among other things:
(a)respect and abide by the law in Australia and other countries;
(b)not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example intentionally providing false personal information or other material; and
(c)not be the subject of any verifiable information causing character doubts.
In Irving, the Full Court of the Federal Court of Australia considered the expression ‘good character’ in the context of a provision of the Migration Act 1958 empowering the Minister to refuse to grant a visa or entry permit in certain circumstances, including that the person is not of good character. Davies J opined that:
[t]he term “good character” is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: see Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5…criminal convictions or the absence of them and character references are likely to be an important source of primary information. … If persons speak well of the applicant, the decision-maker will take that into account.[26]
[26] Irving pp 424–425.
That said, it is clear that the assessment of good character entails considering and weighing the person’s enduring moral qualities and not the good standing, fame or repute of the person in the community.[27]
[27] Irving.
The relevant authorities and the Policy make it clear that:
(a)a person can fail to establish that they are of good character even if they have not been convicted of any criminal offences;[28] and
(b)dishonesty in migration and citizenship applications is indicative that a person is not of good character.[29]
[28] See for example, Chapter 11 of the Policy, at page 147 (extracted at [15] above) and decisions extracted at [19] and [20] above.
[29] For example, Beyan and Minister for Immigration and Border Protection [2015] AATA 256.
As to the state of satisfaction required:[30]
[54] Section 21(2)(h) requires the Minister to form a judgment as to whether he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite…Second, the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion….
[55] The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character…
(Emphasis added.)
[30]BOY19 v Minister for Immigration and Border Protection [2019] FCA 574.
EVIDENCE
The matter was heard in Perth on 10 April 2024. The Applicant was self-represented. The Respondent was represented by Ms Daphne Jones-Bolla of Sparke Helmore Lawyers. Both parties appeared in person.
The Tribunal received the following evidence:
(a)Applicant’s statutory declaration dated 13 July 2023 (A1);
(b)Email Re extraordinary licence dated 14 July 2023 (A2);
(c)Anthony Blanchet Statement Dated 21 April 2023 (A3);
(d)David Walmsley Statement dated 22 April 2023 (A4);
(e)Mulonda Ntale Statement dated 27 April 2023 (A5);
(f)Thomas Jones statement dated 26 April 2023 (A6);
(g)Applicant’s Form dated 17 May 2022 (A7);
(h)Refusal Notice dated 22 April 2022, with attachments A–E (A8);
(i)Terms of Agreement dated 14 January 2022 (A9);
(j)Statement of Facts, Issues & Contentions (R1);
(k)Section 37 T Documents labelled T1-T17, comprising pages 1 to 169 (R2);
(l)Supplementary T Documents, labelled ST1-ST3, comprising pages 1-33 (R3);
(m)Respondent’s Summons Bundle labelled No.1 to 8 (R4).;
(n)Hearing Certificate (R5); and
(o)Updated Check Results Report filed 9 April 2024 (R6).
The Tribunal heard oral evidence from the Applicant.
The Tribunal has also taken into account additional letters of support, including:
(a)Mr Anthony Blanchet, the Applicant’s friend and business partner; [31]
(b)Mr David Walmsley, the Applicants friend;[32]
(c)Ms Mulonda Ntale, the Applicants work colleague;[33] and
(d)Mr Thomas Jones, the Applicants work colleague.[34]
[31] A3.
[32] A4.
[33] A5.
[34] A6.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing.
CONSIDERATION
Violent offending
Assault
On 11 January 2019 the Applicant was charged with ‘Assault occasioning actual bodily harm’.[35] He pleaded guilty and a conviction was entered against him for which he received a $900 fine and a 12 month community correction order.
[35] R2, T9, p 78.
The Incident Report returned on subpoena records the offence as follows: [36]
About 1:25am on Friday the 11th of January 2019 the Accused attended…a Licensed Premise
…
The Victim can be seen talking to other members within the queue and ignores the Accused. Whilst the Victim is distracted, the Accused, who is standing behind the Victim, removes his bum bag and hands it to an unknown male person, believed to be a friend of the Accused. The Accused then turns around, faces the Victim's back and unleashes a series of punches to the back of the victim's head. Footage shows the Accused punching the Victim six times to the back of his head before Security intervenes and attempt to restrain the Accused.
[36] R4, SB4, p 53.
The Incident Report was created at 2.26am on the same night that the assault occurred.
The Applicant conceded during the hearing that he had punched the Victim repeatedly in the face. He had the following exchange with the Minister’s representative during cross examination:
And you punched him in the face?---Yes.
Where was the line?---Sorry?
Where was the line? Like, were you outside some building?---Was one of the clubs in Sydney.
A club in Sydney. How many times did you punch him?---Multiple times.
In the face?---Three or four times and we hang up. Keeping fighting on the floor, and then the police came and stopped the fight.
And multiple times. Is it three to four times?---Yes.
And you punched him in the face three to four times?---After the fight, I was – in alcohol. So I don’t have good memories, but I believe so.[37]
[37] Transcript p 26.
The Court Attendance Notice produced on subpoena indicates that the matter was listed before the New South Wales (NSW) Central Local Court at 9.30am on the same day that the assault occurred.[38] It also indicates that a copy of the Court Attendance Notice was served on the Applicant in person at the Sydney City Pac Police Station at 6.15am.[39]
[38] R4, SB7, p 82.
[39] R4, SB7, p 82.
The Facts Sheet produced by the NSW Police to the Central Law Court records that the Applicant took part in an Electronic Recorded Interview where ‘he made admission to assaulting the Victim’ and ‘stated that he cannot remember exactly what happened’.[40] The bail report records that the Applicant was declined police bail.[41] There is no indication that the Applicant conceded the details of the offence as pressed.
[40] R4, SB7, p 85.
[41] R4, SB7, p 83.
The Incident Report and Facts Sheet both record that the incident was video recorded.[42] There is no evidence that the recording was shown to the Court. There is reference to a victim statement which is not produced.[43] There are no sentencing remarks nor a transcript available to the Tribunal. It is not clear whether the Facts Sheet was read to the Applicant prior to his entering a plea of guilty or whether it was raised for the first time in respect of sentencing. It is not clear whether the Applicant was given an opportunity to raise issues with particular facts contained in the Facts Sheet.
[42] R4, SB4, p 53 and SB7, p 84.
[43] R4, SB7, p 85.
The Applicant was convicted on 11 January 2019, some nine hours after the incident occurred. He had spent those nine hours in police custody. If the Tribunal assumes that the Court’s record is correct and the NSW police reports are accurate then the Applicant had not had an opportunity to sleep for more than four hours (at most) between the incident and his plea of guilty. The Facts Sheet indicates the view of the police that the Applicant was ‘slightly affected by intoxicating liquor’[44] for at least part of that time.
[44] R4, SB7, p 85.
The Applicant’s version of events to the Tribunal is not consistent with the Facts Sheet. He emphatically denied striking the victim to the back of the head.[45]
[45] Transcript p 30.
The Tribunal is entitled to receive evidence of convictions and sentences and to treat as probative the factual matters upon which conviction and sentence are necessarily based.[46] Although the Tribunal has doubts about the circumstances in which the plea of guilty was accepted by the Court, it is well established in the authorities that it is ‘impermissible’ for this Tribunal to ‘impugn’ a conviction on which a decision under review is based.[47] The Tribunal must accept ‘at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based’ including ‘a finding as to the circumstances of the commission of the offence.’[48]
[46] Minister for Immigration & Multicultural Affairs v Ali[2000] FCA 1385; (2000) 106 FCR 313 [38] [39] [41] (Branson J); Kabambav Administrative Appeals Tribunal [2024] FCA 514 [27]-[30]
[47] Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 ; 56 ALD 349 (SRT) at [25] citing Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 136; 39 ALR 649; 61 FLR 354 ; Minister for Immigration and Ethnic Affairs v Gungor(1982) 4 ALD 575; 42 ALR 209; 63 FLR 441.
[48] SRT at [4].

The conviction was not based on findings of fact after an enquiry, but on a plea of guilty. The Tribunal must accept that the elements of the offence were met. For the reasons that follow, the Tribunal does not accept that the Facts Sheet was relied upon by the Court in sentencing and, in the absence of any express evidence that it was accepted and relied upon, the Tribunal disregards it.
The Applicant was charged with assault pursuant to section s 59(1) of the Crimes Act 1900 (NSW).[49] The Tribunal has accessed the legislation as of 11 January 2019 and it reads as follows:
59 Assault occasioning actual bodily harm
(1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.
[49] R4, SB7, pp 80 and 83.
The Crimes Act does not contain a definition of assault or actual bodily harm. The Tribunal has drawn upon the NSW Criminal Trial Courts Bench Book for the elements of this offence, which contains the following helpful information:
An assault is any act — and not a mere omission to act — by which a person intentionally — or recklessly — causes another to apprehend immediate and unlawful violence: R v Burstow; R v Ireland [1998] 1 AC 147. Thus it is the fear which is the gist of assault.
Battery is the actual infliction of unlawful force on another. But the word “assault” has come to describe both offences: see DPP v JWH (unrep NSWSC, 17 Oct 1997).
Barwick CJ in The Queen v Phillips (1971) 45 ALJR 467 at 472 described an assault in the common law sense of the word as follows: “Such an assault necessarily involves the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted: nor is such physical contact, if it occurs, an element of the assault.” [50]
[50] Judicial Commission of NSW publicly available at at [5-5010].
The Bench Book suggests the following four elements of an assault in simple terms for a direction where physical force is applied:
1. A striking, touching or application of force by the accused to another person
(the complainant).
2. That such conduct of the accused was without the consent of the complainant.
3. That such conduct was intentional or reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight as a result of what he or she was about to do, but yet took the risk that that might happen.
4. That such conduct be without lawful excuse.[51]
[51] Judicial Commission of NSW publicly available at at [5-5030].
The Tribunal accepts that the fact of the conviction means that those four elements are proved.
The Crimes Act 1900 creates an escalating statutory scheme for assault and wounding offences. The principle that a court cannot take into account, as an aggravating factor, a circumstance that would warrant conviction for a more serious offence (The Queen v De Simoni (1981) 147 CLR 383 at 389 quoted in Elias v The Queen (2013) 248 CLR 483 at fn 65) is an important consideration when sentencing for offences of personal violence — both in terms of the nature of the injury inflicted and the intention or mental element with which the offence is committed.[52]
[52] Bench Book at [50-030].
Typical examples of injuries that are capable of amounting to actual bodily harm include scratches and bruises.[53]
[53] McIntyre v R (2009) 198 A Crim R 549 at [44].
Importantly, the Bench Book states:
The degree of violence used or ferocity of the attack is a material consideration on sentence: R v Bloomfield (1998) 44 NSWLR 734 at 740; R v Zhang [2004] NSWCCA 358 at [18]. This is so even if the consequences of the attack on the victim are minimal: R v Kirkland [2005] NSWCCA 130 at [33] per Hunt AJA.[54]
[54] Bench Book at [50-030].
As the Minister points out, if the facts contained in the Facts Sheet are accepted then the Applicant demonstrated extraordinarily violent and dangerous behaviour, striking a man six times to the back of his head.[55] That level of violence is not reflected in the sentence, however. The maximum sentence for assault causing actual bodily harm is five years; the Applicant received a $900 fine and a community services order.[56] The Court accepted that the Applicant’s offending was at the lower end of the scale. That speaks strongly against the Court having accepted the Facts Sheet in its entirety.
[55] R4, SB7, p 85.
[56] R4, SB7, p 79.
The Tribunal gives weight to the Applicant’s conviction for assault causing actual bodily harm but gives no weight to the associated Fact Sheet. It is inconsistent with both the Applicant’s evidence and the sentence passed by the Court.
However, as the Minister points out, the Applicant’s own evidence to the Tribunal was that he hit the victim multiple times because he was angry and frustrated.[57] He did not advance a defence of self-defence. The offence that the Applicant describes, and which he agrees he pleaded guilty to, is at the less serious end of the criminal offending scale, but it still has very serious character implications. The Tribunal considers that, as a general rule, a person of good character confronted with a disagreement in line at a nightclub would walk away, not start throwing punches (whether to the back of the head or otherwise). This is so irrespective of the quantity of alcohol involved and/or the personal stress experienced by the parties to the disagreement.
[57] Transcript, pp 11 and 23.
It is an isolated conviction for assault, to which the Applicant pleaded guilty at the first opportunity. It occurred more than five years ago. The Tribunal has taken those matters into account and considered the evidence of the Applicant’s more recent conduct.
Incident reports on the Western Australia (WA) Police file.
The Minister says that the Tribunal should have regard to incident reports contained in the summonsed material from the police file.
2012
The first report is dated 2012 and records an occasion on which the Applicant was asked to leave rental premises and allegedly became ‘agitated and aggressive’, throwing a frying pan at the complainant’s car and causing damage.[58] The Applicant recalled being asked to leave the accommodation and said
I remember my friend we were working – going to work, coming home, and keeping the house really quiet and tidy and then one day she just flipped and asked us to leave. But we didn’t throw anything at her car. I remember we argued – like we needed more time to stay, at least a week notice. There was an argument about, but she didn’t…we left that night, on the spot.’[59]
[58] R4, SB8, p 113.
[59] Transcript, p 60.
He was asked on cross-examination why he thought his landlady had changed their mind and asked them to go and he replied ‘I think she was just not mentally stable’.[60]
[60] Transcript, p 60.
The Tribunal gives little weight to this reported incident. The available report is entirely from the complainant’s perspective and there are no witness statements available. The police do not appear to have pursued the matter. There were no charges laid. The landlady’s reported reason for asking them to go was that ‘they were not adhering to her house rules’.[61] It is not clear whether her conduct in requiring them to leave immediately was justified, or whether the Applicant’s frustration at being thrown out of his rental accommodation at 8.40pm[62] with no time to make any alternative arrangements was warranted. The Applicant denies throwing an object at the complainant’s car and causing damage[63] and there is no indication on the police files that this is a matter that was pursued in either the criminal or civil courts.
[61] R4, SB8, p 113.
[62] R4, SB8, p 113.
[63] Transcript, p 59.
2016
The Minister has drawn the Tribunal’s attention to subsequent incident reports purportedly recording domestic violence behaviour by the Applicant against his wife, Ms Getachew. The first report is in April 2016, after the birth of their son but whilst he was still in the Intensive Care Unit (ICU).[64] It records ‘nil previous recorded DV history involving both parties’[65] and Ms Getachew’s assertion that ‘this was the first time something like this had happened’.[66]
[64] R4, SB8, p 115.
[65] R4, SB8, p 117.
[66] R4, SB8, p 115.
During cross-examination the Applicant was asked whether there had been any restraining orders issued protecting his partner from him. He responded that his wife ‘called the cops on me many times’.[67] He was asked why and he answered:
We have, like, argument and things like that. And she – she knows women in Australia have a lot of rights, so she play a little bit with that – a little bit too much, and that kind of thing.[68]
[67] Transcript, p 60.
[68] Transcript, p 60.
He explained further that:
We have an argument, she knows if she called the cops, the cops would ask me to leave the house for 24 hours or something, and she has done it many times.[69]
[69] Transcript, p 60.
After further questioning, the Applicant told the Tribunal that his wife ‘played the system in her advantage’.[70] He said, ‘sometimes there’s no need to call the cops or things like that, and she will still do it.’[71] He said that the benefit that she gained was ‘just to see me struggling last minute, leaving the house, or things like that’.[72]
[70] Transcript, p 61.
[71] Transcript, p 61.
[72] Transcript, p 62.
To a limited extent, his view accords with that of the Western Australia Police Force as recorded in the incident reports. The incident report dated 7 April 2016 reports an argument in the course of which the Applicant is accused of throwing a Sprite bottle which hit his wife in the head. It includes the following comment:
Victim does not wish to pursue any assault charges, only called police to prove to her husband that he cannot do these things and get away with it.[73]
[73] R4, SB8, p 115.
The Applicant denied that a Sprite bottle hit his wife in the head.[74]
[74] Transcript, p 63.
The Applicant’s wife next called the police on 12 May 2016.[75] The incident report indicates that her complaint was of being ‘physically restrained’[76] by the Applicant. On attendance, the Applicant’s wife reportedly conceded that there was no physical contact, but that the Applicant had stood in the doorway to prevent her leaving.[77] The report includes the following note:
The victim told police that she had called them as she wanted to make a point to the POI that she was not alone and that police would take her side and mediate in their arguments. The victim was reminded that police aren’t there to take sides and that just because a police order was being issued did not mean that the police thought the victim was in the right in the argument.[78]
[75] R4, SB8, p 119.
[76] R4, SB8, p 119.
[77] R4, SB8, p 119.
[78] R4, SB8, p 119.
The Applicant was asked in cross-examination whether he prevented his wife from leaving the house by standing in the doorway and he said ‘maybe, yes’.[79] Their infant son was home at the time.
[79] Transcript, p 62.
The next incident report is dated 14 November 2016, and contains the following account:
GETACHEW stated that she was in their car with her partner, Ludovic MABIALA and their 1 year old son Menelik MABIALA. They had a verbal argument where GETACHEW said something rude to MABIALA who has then used an open hand to assault GETACHEW to the mouth causing no injury. GETACHEW then called the police where he tried to grab the phone from her. GETACHEW hung up the call and the arBgument (sic) continued. MABIALA then used an open hand to assault GETACHEW three more times before he left (possibly) to a friends house.[80]
[80] R4, SB8, p 123.
The Applicant was asked about this incident during cross-examination and he asserted that:
I never touch her, I never put my hand on her or things like that, because she will call the police straight away, as she’s been doing it, and I think she would tell them, like, hit her. So I never – I never touch her. And she knows her rights, so she knows if I touch her, like, I will be in trouble. Though she will be – she will use that against me.[81]
[81] Transcript, p 63.
The Applicant was asked whether he tried to grab the phone from her to prevent his wife calling the police and he said:
We may have a quick argument like that, but I know myself, I’ll let you go quickly.[82]
[82] Transcript, p 64.
He subsequently asserted that he had not tried to grab the phone.[83]
[83] Transcript, p 64.
The three reports demonstrate escalating behaviour following the premature birth of the Applicant’s first child. The first report is of an argument in which a bottle was thrown, with no allegation that it was intended to injure the complainant. The second report is of an argument in which the Applicant admits that he prevented his wife from leaving. The third is of an argument in which the Applicant is alleged to have used his open hand to assault his wife without injury and is alleged to have grabbed a phone to prevent her calling the police. The Applicant says that his wife is ‘playing’ with the rights of women in Australia, using the police to see him ‘struggling’. The second and third reports, however, are of behaviour that the Applicant admits and they do represent a genuine violation of Australian rights.
The Applicant gave evidence that while his son was still on oxygen his wife had left him for five or six months. He described this period during the hearing in the following terms:
I think ‘15 or ‘16 she randomly left. A couple of month no news. I don’t know if she was still here with my son. She hasn’t left alone, she left with my son. I don’t know if she was in Perth or she went back to the family in Melbourne. I have no news and I didn’t know where she is. She wasn’t calling me for like four, five months, and she randomly (indistinct) up, ‘I’m sorry, I’m back.’ And that’s okay, I took her back and tried to work it out....[84]
[84] Transcript, p 71.
The Tribunal asked the Applicant whether he had contacted the police during this period, and he replied:
No, I didn’t, because I didn’t want to make her in trouble. I was thinking she will come back, she will come back any time, any day, but she didn’t. I was in touch through her family, and that’s after maybe a month or two. That’s when I found out she went into refuge. I don’t know why, because we have everything we need at home. That’s why I said you should like (indistinct) me. I don’t understand why she does that, but she was my wife and I’m there to support her. I’m not going to call the police on her, the cops on her, and then - then she run away with the kids and she’ll get in trouble and things like that. So I work it out with her family and that’s where they told me she was, she went to refuge, but I don’t know why.[85]
[85] Transcript, p 72.
The first incident report relating to family violence is in April 2016 and states that the Applicant’s son is still in the ICU.[86] The second one is just over one month later in May 2016.[87] The third occurs on 14 November 2016,[88] and there is no mention in the report that the wife and child have recently returned from a refuge. The next police contact appears to occur in March 2017.[89] For the first time the police describe them as ‘ex partners’ who ‘have a child together’.[90] It appears, then, that the period in which the Applicant’s wife left him to go to a shelter occurred in November 2016, immediately off the back of the escalating reports of increasingly controlling behaviour by the Applicant. It is rational behaviour by a woman frightened by the Applicant’s conduct as reported.
[86] R4, SB8, p 115.
[87] R4, SB8, p 119.
[88] R4, SB8, p 123.
[89] R4, SB8, p 134.
[90] R4, SB8, p 135.
The Applicant says that his wife lied about him to the police, claiming violence where there was none.[91] He says that her subsequent behaviour in disappearing for five months to live alone, without his financial support, with an infant premature child with ongoing health issues is wholly irrational, and he has no idea why she would do it.[92] He said that he didn’t call the police when she disappeared with his infant son because he didn’t want her to get in trouble, even though it was ‘a month or two’ before he was in touch with her family and found out she was in a shelter.[93]
[91] Transcript, p 63.
[92] Transcript, p 72.
[93] Transcript, p 72.
The Tribunal is not persuaded by the Applicant’s account of what occurred, and considers that the first three incident reports, followed by Ms Getachew’s retreat to a refuge, cast doubt on the Applicant’s character which the Applicant has not overcome with his implausible explanation.
2021-2022
The Applicant was next taken to an incident report 17 September 2021 reflecting that the Applicant telephoned the police to report concerns that Ms Getachew was going to leave his two children (then aged six and three months) alone.[94]
[94] R4, SB8, p 126.
The incident report states that the police arrived at the house an hour after the report was made and saw the two children asleep in the living room. It reports that the police knocked loudly multiple times, and then contacted Ms Getachew, who came home directly.[95]
[95] R4, SB8, p 126.
Ms Getachew reportedly told the police that she and the Applicant had had an argument about child support whilst they were both present at the house, and that she had departed the house and left the children in his care.[96] The Applicant conceded during cross-examination that this was correct. He had the following exchange with the Tribunal:
Mr Mabialia, did you sneak off the premises so that the police would think that the children were home alone?
--- No, that’s not what I did. I did to show to the police – to the department of immigration – the things she would do to me. So the issue is that place where she lives, I don’t live there. And then hers have the record. She’d been calling the cops on me many times. And then when I came visiting them, we had had an argument and then she was threatening to leave the house. And I told her you can’t leave, because you’re the one that live in this house, with the kids, so you’ve got to stay. And I told her if you do that, I’ll call the cops on you, because you’ll leave the kids alone, because I don’t live here fulltime, so you have to stay. And then she left, and that’s why I called the cops.[97]
[96] R4, SB8, p 126.
[97] Transcript, p 66.
The Applicant subsequently admitted that when the police arrived, he was outside. He said: ‘I sneak out so they can see she left the house’.[98] He remained on the property outside ‘watching all the situation’.[99]
[98] Transcript, p 67.
[99] Transcript, p 67.
The Applicant then had the following further exchange with the Tribunal:
When I asked you a minute ago if you had snuck off so the police would think the children were there alone, you told me no?
---No, I said yes.[100]
[100] Transcript, p 67.
The Applicant’s earlier evidence had, in fact, been an unequivocal ‘no’, followed by a complex justification of his conduct.[101]
[101] Transcript, pp 65-67.
The Applicant admits that he made the threat of a police report against Ms Getachew in order to try and force her to stay in the house during an argument with him. That is consistent with his previous reported conduct in 2016 when he admits that he physically prevented her leaving their home during an argument. The Applicant shows no insight whatsoever into his controlling behaviour over the mother of his children. Irrespective of how frustrated he became during the argument, and irrespective of what his wife may or may not have done to provoke him, she has the right to walk away from the argument. He has no right to block her path or threaten her with an unwarranted police report to prevent her.
On 6 May 2022 Ms Getachew again called the WA Police.[102] The record of her call indicates that she wanted to report being in a domestic violence relationship but that she was waiting until Monday so that she could make sure she could speak to locksmiths and housing if needed in case an incident occurred after her report. She asked that the police not attend her home because of her kids, neighbours or her partner seeing it and making things worse. She said that her partner, whom she identified as the Applicant, was at her house and that she would attend the police station on Monday to give a statement.[103] The subsequent record reflects that she did not attend as foreshadowed. [104] This call was not for the purpose of having the police remove the Applicant from her home – she specifically asked the police not to attend and not to speak to the Applicant.
[102] R4, SB8, p 154.
[103] R4, SB8, p 154.
[104] R4, SB8, pp 155-156.

On 4 June 2022 Ms Getachew contacted the police and said that she was separated from the Applicant, that he had asked her for a divorce which she was happy with, but that he was refusing to leave her house so she had left with the children and was ‘too scared to return’.[105] This occurred on their daughter’s birthday.[106] The Applicant’s evidence during the hearing was that he believed he was there for the daughter’s birthday, that he didn’t recall why they had an argument, that he had been asked to leave and may have refused but didn’t clearly recall – ‘it wasn’t like a big incident’.[107] The Applicant admitted that shortly afterwards he sent Ms Getachew a text message that said ‘just fucking sign the divorce papers’.[108] He did not lead any evidence as to why he wanted his wife’s signature on the divorce papers in a jurisdiction where there is no legal obligation for a joint application for divorce to be made.
[105] R4, SB8, p 156.
[106] Transcript p 77.
[107] Transcript p 77.
[108] Transcript p 79.
It is a matter of concern that the Applicant, who has been living separately from his wife since 2020 but staying on her couch from time to time,[109] has been asked to leave a house that he is a visitor in and feels comfortable simply refusing, so that the occupier of the home has to leave with her two small children in order to escape his company. The Applicant does himself no favours by minimalizing this conduct as a forgettable small incident.
[109] Transcript p 78.
The Tribunal considers that a person of good character would not behave as the Applicant admits to behaving in the period 2021-June 2022, especially in the presence of infant children, irrespective of the provocation offered. A person of good character walks away from escalating arguments in the presence of infant children and allows others to do the same. A person of good character leaves another person’s home when asked to do so, even if they want to stay because it’s their daughter’s birthday. A person of good character does not report a fake child abandonment to the WA police and then hide nearby to watch what happens. A person of good character does not send text messages that say ‘just fucking sign the divorce papers’ in circumstances where there is no need for the recipient to sign anything nor any obvious benefit to them signing anything. The Tribunal considers that the evidence admitted and adduced by the Applicant should be given very significant weight in the overall assessment of his character, and it speaks strongly against a finding that he is a person of good character.
Other police reports before the Tribunal
As to the balance of the police reports contained in R4, detailing other complaints by Ms Getachew, the Tribunal thinks it more likely than not that the Applicant did behave as he is reported to have behaved. The deterioration of the relationship as reported to the police is consistent with the Applicant’s admitted and adduced evidence, and results in a rational and plausible narrative. The Applicant’s narrative, in contrast, makes little sense.
The Applicant says that his wife has lied about him to the police, claiming violence where there was none.[110] He says that her subsequent behaviour in disappearing for five months to live alone, without his financial support, with an infant premature child with ongoing health issues is wholly irrational, and he has no idea why she would do it.[111] He said that he didn’t call the police when she disappeared with his infant son because he didn’t want her to get in trouble, even though it was ‘a month or two’ before he was in touch with her family and found out she was in a shelter.[112] He said that he had been hit by his wife on multiple times but did not call the police on any of those occasions.[113] He told the Tribunal that this was because he didn’t want to put her in a difficult situation because she had been raped by a family member in the past and was just relieving her stress by hitting him.[114] However, he admits that he manufactured a fake report of her abandoning their children, hiding in the garden to get her into trouble, simply because she wanted to walk away from their argument.[115] He says that he had a key to her house which she never asked him to return, but assured the Tribunal that he would have left her home any time he was asked to.[116] He then admitted that he may not have left on his daughter’s birthday when asked to, because it was his daughter’s birthday and he wanted to stay a little bit longer.[117]
[110] Transcript, p 65.
[111] Transcript, p 65.
[112] Transcript, p 65.
[113] Transcript, p 65.
[114] Transcript, p 64.
[115] Transcript, p 66.
[116] Transcript, p 76.
[117] Transcript, p 77.
When taken holistically, the Applicant’s account is not a plausible narrative and the Tribunal does not accept it as fact. The Tribunal is also mindful of the fact that on at least one occasion during his evidence the Applicant changed a ‘no’ into a ‘yes’ and then frankly denied that he had done so, as recounted above. The Tribunal finds that the Applicant is not an honest nor a forthright historian.
Traffic Offences
The Applicant’s record shows a very significant number of fines for minor offences starting in 2012.[118] In 2012 he received fines for failing to produce a ticket when leaving public transport and failing to carry or produce an overseas driving licence and English translation.[119] In 2013 he was fined for parking offences, including parking in front of an expired meter, stopping in a taxi zone/loading zone, stopping in a no-stopping area, denying access to a private drive, failing to display a valid permit and failing to display an unexpired parking ticket.[120] He received fines for a total of eight parking offences in 2013, 11 parking offences in 2014, nine parking offences in 2015, a staggering 23 parking offences in 2016, two parking offences in 2017, four in 2018, and three in 2021.[121] He has also received multiple fines for littering, multiple fines for failing to apply for a vehicle licence, and multiple fines for failing to return plates.[122] The list does not include the more serious offences dealt with separately below.
[118] R4, SB5, p 56.
[119] R4, SB5, p 56.
[120] R4, SB5, pp 56-57.
[121] R4, SB5, pp 56-60.
[122] R4, SB5, pp 56-61.
The Applicant initially lost his licence as a result of the above fines being unpaid.[123] His evidence is that he currently still has outstanding fines in the amount of about $36,000 dating back to 2013.[124] In July 2016 his driver’s licence was disqualified for three months.[125] The Applicant confirmed during the hearing what is evident from the subpoenaed documents; that he was disqualified again in May of 2017 for nine months, in June of 2018 for nine months and in September 2021 for two years and seven months which was extended such that he is disqualified from driving until 2025.[126]
[123] R4, SB8, p 92.
[124] R4, SB5, p 61.
[125] R4, SB8, p 92.
[126] Transcript, p 17.
The Applicant has nine convictions of ‘No Authority to Drive’ resulting in further fines, repeated suspension of his licence and ultimately disqualification for nine months.[127] His evidence was that he sometimes drove without realising that his licence had been administratively cancelled for non-payment of his fines, but that there were instances where he did know he didn’t have a licence and continued to drive anyway.[128]
[127] R4, SB8, pp 92-93.
[128] Transcript, p 17.
The Tribunal does not consider driving without a licence to be a trivial offence. It is a strict liability offence – failing to be aware that it had been administratively cancelled does not excuse the Applicant’s behaviour; it is his responsibility to be aware of the grounds for cancellation and take care that they do not arise. In any event, the situation would not have arisen if he had not repeatedly incurred parking offence fines that he was unwilling or unable to pay.
The penalties imposed by the Court were significant, including impounding his vehicle. He cannot have failed to appreciate that the authorities took his offending seriously.The Applicant also knew or ought to have known that there are serious insurance implications for driving without a licence and that this might have catastrophic financial consequences for himself, his dependent children, and any other parties involved in the event that he caused an accident by driving when he was not licenced to do so. Neither the serious penalties nor the financial risk to himself and others appears to have been sufficient to deter the Applicant.
The Applicant’s record also reflects 13 infringements for speeding, including two offences where his speed exceeded the speed limit between 20-29 kilometres per hour.[129]
[129] R4, SB5, pp 56-61.
The Applicant says:
…I didn’t really plan to go speeding. Just sometimes you’re driving fast, and stuff like that. Think happens only once or twice over 12 years I’ve been here. And if I could mention something, I’ve never been caught drinking-driving, stuff like that…[130]
[130] Transcript, p 10.
The Tribunal considers speed in excess of 20 kilometres per hour above the legal limit a very serious offence, and one which put lives at risk. There have been significant public campaigns about the dangers of driving at an excessive speed and driving more than 20 kilometres per hour over the legal limit is unquestionably excessive. The Applicant has not adduced evidence of any circumstance that would justify taking such a risk; he suggests that in fact it was a careless accident.
The Tribunal considers that the Applicant’s ongoing failure to pay outstanding traffic fines and his disregard for the penalties imposed demonstrated by continuing to drive without a licence, both demonstrate a serious disregard for the law and for law enforcement. His flippant attitude to his speeding offences reinforces this impression and demonstrates a disregard for public safety. The Applicant’s traffic offences on their own cast real doubt on his character.
The Applicant has not been charged with any traffic offences in the last few years. However, he has not been permitted to drive in that time. The Tribunal accepts that the Applicant has finally ceased driving when he does not have a valid licence but notes that he has not had the opportunity to demonstrate any other improvements in his driving record, because his belated compliance with the obligation not to drive has kept him out of the driver’s seat.
Evidence of dishonesty
Stealing and breach of bail undertaking
In 2014 the Applicant was convicted of ‘stealing’ and ‘breach of bail undertaking’ resulting in fines of $750 and $250 respectively.[131] The offences occurred on 18 December 2012 at Myer in Perth.[132] Together with a co-accused he walked through the men’s clothing section, collected clothing, and then left the store ‘making no attempt to pay’.[133] He was detained by security staff.[134] He was charged and then released on bail after signing a bail undertaking which included an undertaking to appear at Perth Magistrates Court on 2 January 2013. He failed to appear on that date and a warrant for his arrest issued. He was arrested on 14 April 2014 and was charged with breach of a bail undertaking.[135] On 14 April 2014 he pleaded guilty to both offences and was convicted.[136]
[131] R4, SB6, pp 77-78.
[132] R4, SB6, pp 77-78.
[133] R4, SB8, p 95.
[134] R4, SB8, p 95.
[135] R4, SB8, p 97.
[136] R4, SB6, pp 77-78.
The Applicant’s explanation for the stealing offence was the subject of cross-examination, and the following exchange occurred:
Your explanation in respect of that stealing offence is that you stole because you did not have money. Is that accurate?---Yes.
How does stealing clothes from Myer’s to the value of almost $864 assist you with that?---Just be able to get more clothing.
You just wanted more clothing?---No. You have to remember I was backpacking at the time.
Yes?---I was running out of money and stuff like that.
And you just wanted some new clothes?---Yes.
It’s not to assist you with anything substantial, not to assist you in respect of, you know, some basic living like food or shelter. You just wanted some new clothes so you took them from Myer’s, didn’t you?---Yes, that’s true.[137]
[137] Transcript, p 50.
The offence occurred 12 years ago, and the offence of stealing does not appear to have been repeated in that time. However, the Tribunal notes the Applicant’s attempt to pass the theft off as being a matter of necessity at the time was disingenuous in light of his subsequent admission on cross examination that he just wanted some new clothes.
Giving false details
On 23 August 2021 the Applicant was pulled over by the police whilst driving without a licence and he gave a false name, Kevin Eugenta. He also gave Mr Eugenta’s date of birth.[138] He was, at the time, disqualified from holding or obtaining a licence.[139] He was convicted of this offence of ‘No authority to drive’ and ‘provided false or misleading personal details’ in relation to this incident on 24 September 2021. He admitted these offences during the hearing, and did not offer any explanation or facts contradicting the Statement of Material Facts put to him in cross-examination.[140]
[138] R4, SB8, pp 110-111.
[139] R4, SB8, p 111.
[140] Transcript, p52; R4, SB8, p111.
False vaccination records
On 23 March 2022 the Applicant attended Crown Casino in Perth during the period in which a Covid vaccination certificate was required for entry and presented a fake vaccination certificate in order to gain entry to the Casino. [141] It was reported to the police and the related incident report was put to the Applicant during the hearing.[142] The Applicant conceded during cross-examination that he understood that the vaccination certificate was fake at the time that he presented it.[143] His evidence to the Tribunal was that he was not going to the Casino that night for any particular reason; it was not a special occasion and he was alone.[144] He said that it was around three or four o’clock in the afternoon.[145] His evidence was that there was nothing preventing him getting vaccinated; it was a free choice on his part because not enough study had been done on the vaccine and it was ‘a little bit of rush’.[146]
[141] R4, SB8, p 152.
[142] Transcript, p47
[143] Transcript, pp 44-45.
[144] Transcript, p 47.
[145] Transcript, p 47.
[146] Transcript, p 48.
The Applicant’s conduct is compounded by his personal circumstances. The Applicant’s son was born on 22 July 2015. He was born at 24 weeks gestation and weighed only 714 grams.[147] The Applicant’s evidence was that his son was in intensive care for ‘about a year’.[148] The offence occurred when the Applicant’s son was six years old. Five months earlier the Applicant’s son had been hospitalised for a respiratory condition related to his underdeveloped lungs.[149] The Tribunal took the Applicant to his submission[150] and asked him about his son’s respiratory issues. The following exchange occurred:
[147] R2, T10, p 107.
[148] Transcript, p 85.
[149] R4, SB8, p 119; Transcript p 81; R2, T10, p 84.
[150] R2, T10, p 84.
MEMBER: …
And he was in hospital for respiratory problems. So it must – were they quite serious?---It was just – I think he – he had the flu or something. Maybe because he had already, like, a length problem, so be more affected than others. You know what I mean?
Okay. So relatively mild things for healthy people - - -?---Yes.
- - - have a disproportionate affect on his lungs?---Yes.
Is that what you’re saying?---Yes.
So this is five months, by my calculation, before you went to the casino and claimed to have been vaccinated for COVID when you hadn’t been?---Mm‑hm.
So that’s only five months between your son being in hospital for respiratory conditions and you going out unvaccinated, claiming to be vaccinated, and mingling in the general public, at a time when COVID was still a matter of public health concern. Is there anything you want to say to me about that?‑‑‑Mm. As we – as much information we had at the time about COVID, for me I believe I was the one at risk actually going there. Because, if someone got COVID or something, I may get it, and I’m not vaccinated, so maybe more complicated for me than for them. So that’s why I say, like, ‘If everyone is vaccinated, they’re mostly safe. But, me, I’m like less safer, because I’m not vaccinated’. I was seeing it more this way.
This is the part that I’m interested in. Because you were still seeing your son at this time?---Mm-hm.
So you were putting yourself at risk of contracting a condition that might have relatively mild affects for you but had potentially very serious consequences for your son?---Mm-hm…[151]
[151] Transcript, pp 80-81.
The Tribunal accepts that vaccination for Covid has not been required by law in Western Australia and does not find that the Applicant’s mere reluctance to be vaccinated is of itself grounds to find that he is not a person of good character. However, the Applicant lied about his vaccination status in order to access a public area which the general public understood to be accessible only to vaccinated persons. It was not a spur of the moment decision on his part; he prepared false proof of vaccination in advance. It significantly compounds the situation that the Applicant’s vulnerable six year old son, whose lungs are compromised, was exposed to a greater risk of contracting covid through the Applicant’s conduct.
Misleading information to the Australian government
On 26 June 2014 the Applicant entered Australia and completed an incoming passenger card. On that card he was asked whether he had any criminal convictions, and he answered ‘no’,[152] notwithstanding his convictions for breach of the Criminal Code two months earlier. During cross-examination he indicated that this was because his English ‘wasn’t that good at the time’ and he ‘wasn’t sure which one is, like, conviction, or this one is like a conviction that have to be in the record for these cards.’[153]
[152] R3, ST1, p 1.
[153] Transcript, p 37.
In July 2014 the Applicant applied for a student visa.[154] In the course of that application he was asked whether he had ever been convicted of an offence in any country, including a conviction which is now removed from the official records.[155] The Applicant answered ‘no’, notwithstanding that he had been convicted of stealing and breaching a bail undertaking a year earlier.[156] The Applicant stated during the hearing that he made the same mistake as he did on his incoming passenger card; he didn’t understand that he had criminal convictions, and he noted that no-one had told him he had made a mistake when he walked through the airport so he still didn’t know it was a mistake when he completed the application.[157]
[154] R3, ST2, p 2.
[155] R2, T2, p 6.
[156] R2, T2, p 6.
[157] Transcript, p 40.
The Applicant lodged a partner visa application in August of 2015.[158] In the course of that application he was asked whether he had ever been convicted of an offence in any country, including a conviction which is now removed from the official records.[159] The Applicant again answered ‘no’.[160] When asked about this during the hearing the Applicant indicated first that he didn’t understand that the question included offences in Australia, and secondly that he wasn’t sure what the convictions meant at the time that he answered the question.[161]
[158] R3, ST3, p 9.
[159] R3, ST3, p 28.
[160] R3, ST3, p 28.
[161] Transcript, p 36.
The Tribunal does not accept that the Applicant did not understand that he had criminal convictions and that they had to be declared.
The Applicant has also given misleading evidence to the Department with respect to his relationship with his wife. On 20 October 2021 the Applicant made a statement to the Department in support of his citizenship application. The statement included the following passage:
…I believe we were separated because it was difficult for her to deal with her pregnancy and all my visa application at the same time and looking after our finances because I didn’t have the rights to work at this time. Even if we are separated, I promised to her that I will always look after her and my kids this why we are still in good terms until today, we working together to rise (sic) our child in best way possible.[162]
[162] R2, T10, p 84.

This statement was 33 days after the Applicant’s fake report of child abandonment to the WA Police, at which time he hid in the garden whilst his children slept alone in their living room so that the Applicant could teach his wife a lesson for leaving during an argument about the quantum of child support.
The Applicant has given false and/or misleading answers in his evidence before the Tribunal as detailed above.
The Tribunal does not accept that any of the Applicant’s misinformation has been accidental. The Applicant has intentionally provided answers that serve his purpose at the time of answering with (at best) a careless disregard for the literal truth of his words. His attempts to explain his answers in a way that makes them sound correct after the fact is disingenuous and does nothing to improve the Tribunal’s assessment of his character.
Applicant’s evidence in support of his character
Applicant’s submissions
The Applicant made the following submissions in support of his claim that he is of good character for present purposes:[163]
(a)He has invested his hard work into his family business, the community and holds an appreciation and love for the country.
(b)He wants to live in the same country as his children.
(c)An amount of time has elapsed since his last offending.
[163] R2, T10, pp 84-85.
Applicant’s statements
The Tribunal has had regard to the Applicant’s statements which appear at R2, pages 84-85 and 123.
The October 2021 Statement sets out the Applicant’s explanation for some of his unlicenced driving offences. He says that there is a delay in transferring information between the Department of Transport and Baycorp, to whom debt collection has been outsourced.[164] The Tribunal accepts that it may well be the case that the Applicant has had administrative problems that have led to his licence being cancelled because of unpaid fines. The Applicant says:
I totally agree I should be more cautious and follow up more often with my driving licence status. Now I have checked with lawyer and I’m applying for an Extraordinary driving licence to avoid any future issues with my licence.[165]
[164] R2, T10, p 84.
[165] R2, T10, p 84.
The admission that the Applicant was in error for not checking his licence, at least after his first few experiences of its unexpected cancellation, is the start of character rehabilitation. The fact that the Applicant seems to have stopped driving without a licence at around the time of this statement is also a good sign that the Applicant has started to take some responsibility for his offending.
Importantly, the October 2021 Statement says:
I’m trying my best to be a good person with good moral and values, I have many more plan for Australia, for my kids and for the community. Its been 7 years the last time I left Australia to see my family oversea, I put all my energy and love into this country. That is why I want to be Australian citizen.[166]
[166] R2, T10, p 84.
Those sentiments do the Applicant credit and provide a valid reason for wanting to become an Australian citizen.
The Tribunal has also considered the Applicant’s ‘Formal Excuse Letter’, which includes the following passages:
I’m writing this letter to apologies (sic) and present my excuse for some behaviour I had in the past. I’m writing today to show you that I have grow up and today I’m more mature and taking all my responsibilities. I almost spend 10 years in Australia and I love this country.
Sometimes we can make mistake in life, I did have some bad behaviours in the past as you can see in my police clearance I sincerely apologies (sic)... I was younger and after a nights out… I end up into some troubles but as you can see in my French police clearance I never been charge for anything because this is not me and nobody is perfect and sometimes we can make mistake but I totally agree I should have behave myself and avoid to be in this kind of situation same with my driving licensing suspension everything been fixed with repayments and it is in place today.
I spend 10 years of my life in this beautiful country I had my kid here, my family, business and most of my friends are here in Australia.[167]
[167] R2, T10, p 85.
The Tribunal accepts that the Applicant experienced some remorse for the assault in NSW and his driving during licence suspension offences. The Applicant provided bank records supporting his assertion that he was making regular payments towards his fines at that time.[168]
[168] R2, T10, pp 102-106.
On 7 March 2022 the Applicant sent an email to the Tribunal in the context of his earlier application, which included the following statements:
I believe I just lost myself when I lied to the police officer using one of my friend name…
I was caught stealing because I was a backpacker at the time and was difficult to get jobs…
I didn’t understand properly the airplane form…
Can you please judge me on what I accomplish during this 10 years.
…
This visa process cost me a lot, my first child was born premature because I couldn’t work and my ex wife as to work until she was 6 month pregnant and almost lost a child for her to pay the bills. It took me up to 2 years to get into mining because of my visa status back then… I managed to get the best of myself with all this sacrifices I have done and build myself a good resume as leading hand rigger/scaffolder into the offshore industry and I also open up my own business, O’BURGER. This is when COVID-19 started to slow down the country with lot of restrictions and lockdowns and until now I’m still doing my part by working hard to keep the country running and stable…
I will sincerely always be grateful and loyal to Australia for everything this country gave me I’m already Australian in my heart, even if sometimes it was difficult for a black men (sic) while working FIFO. I will simply use the same words THE WEST AUSTRALIAN NEWS used saying the mining industry have this culture of sexism, bullying and systemic racism.
But this is not AUSTRALIA this is why I just kept and remember the best of this years spent over here by trying to help other people and also giving some free food to homeless people or helping charity…I have done a lot in perth with some big events or helping other businesses with free marketing, consulting and plenty more….[169]
[169] R2, T13, p 123.
Overall, the Applicant demonstrates a lack of insight into his conduct. The Tribunal accepts that there is still significant racism in Australia and that the Applicant has likely been a victim of racial profiling in respect of the number of times he was stopped by the police without any obvious cause over the years in a variety of different cars. The Tribunal further accepts that life can be very difficult for visitors to Australia who do not have a working visa at the time that they attempt to settle in Australia. Neither is an excuse, however, for the disregard for Australia’s laws that the Applicant has displayed over time. The Applicant’s suggestion that his visa situation is responsible for his son’s health is a further demonstration of his lack of insight. Many women work well into their third trimester without premature birth, and the Applicant’s son was not born premature because of his visa status.
The Tribunal notes the Applicant’s claims to have helped other business with free marketing and consulting. However, there is no other evidence before the Tribunal that the Applicant has done significant charity or pro bono work of any kind. The Tribunal accepts that the Applicant may have given homeless people food from time to time and made small charitable donations but does not accept that he has made a contribution on any larger scale. The Tribunal does give weight to the Applicant’s willingness to make small contributions, however.
The Tribunal has had regard to the Applicant’s son’s National Disability Insurance Scheme plan approval and supporting report, which unequivocally demonstrates some difficulties flowing from his premature birth.[170] That is something that the Tribunal has regard to in weighing up the Applicant’s conduct and the weight it should be given in a character assessment; the additional stress of a son with serious medical conditions may provoke a person to behave in an out of character way from time to time. The Applicant’s breakdown with his wife is undoubtedly attributable in some part to this stress. The Applicant shows a complete lack of empathy for his wife’s experience of the premature birth and early separation from her son, however. He variously describes her conduct as irrational, self-serving and manipulative. He gives no indication that he ever tried to obtain any assistance for her and shows no insight into how his own behaviour impacted her.
[170] R2, T10, p 110.
Character references
The Applicant provided the Department with character references in support of his application for citizenship.
The first is from Mr Jeremy McCall, dated 23 October 2021. It states that Mr McCall has known the Applicant for four years and has worked with him in the mining industry as his supervisor. It says that the Applicant ‘was always a honest and reliable worker’ with ‘a great attendance rate’ who ‘works well within the team’.[171]
[171] R2, T10, p 95.
The second reference is that of Mr Charles Pedersen, dated 26 October 2021. He says that he has known the applicant for five years and has been part of his scaffolding and rigging team. Mr Pedersen says that the Applicant ‘has always been kind and friendly to myself, my family and our other work mates.’ Mr Pedersen says further that the Applicant is ‘a very hard working and reliable team member in the work crews.’[172]
[172] R2, T10, p 98.
The Applicant has provided a certified translation of a National Criminal Record Registry check from the Ministry of Justice, French Republic, issued on 28 January 2021.[173] It shows nil convictions. The Applicant has also provided a Certificate of Registration of a Food Business dated 22 June 2020 for his restaurant, O’Burger,[174] the insurance certificate for the business,[175] and the front page of the lease for the business premises.[176]
[173] R2, T4, p 39.
[174] R2, T4, p 54.
[175] R2, T4, p 41.
[176] R2, T4, p 42.
The Minister concedes that the Applicant’s evidence indicates that he is hardworking, reliable at work, committed to his business and the people he employs.[177] The Minister says that the character references should not be given much weight, given that the deponents were not aware of the Applicant’s record, but concedes that they attest to his good work ethic.[178] The Tribunal is prepared to take them at their highest, however, because they are not inconsistent with any other evidence before the Tribunal. The Applicant has a strong work history and is a good work mate. Those are positive attributes that demonstrate good character.
[177] Transcript, p 99.
[178] Transcript, p 99.
However, the Applicant’s offending history detracts from the Applicant’s positive attributes to a very significant extent. The Applicant’s attitude to the various driving offences he committed were downplayed by him and he is apparently unwilling to appreciate that his behaviour put other road users at risk of serious harm.
The Applicant is prepared to act dishonestly and with limited candour in his dealings with government agencies when he perceives that it is to his advantage to do so. He lacks insight into this conduct. The Applicant’s engagements with his wife, and with the police in the course of dealing with his wife, weigh heavily against a finding that he is a man of good character, notwithstanding his references in a work context.
In respect of the current application for citizenship and on the evidence, the Tribunal is not satisfied that the Applicant is a person good character within the meaning of and as required by the legislation.
This does not mean that the Applicant is any way precluded from making a fresh application for citizenship in the future. It does not deprive the applicant of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a period of positive contribution to the Australian community.
CONCLUSION
For the reasons outlined above, the Tribunal cannot presently be affirmatively satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 22 April 2022 to refuse the Applicant’s application for citizenship by conferral, is affirmed.

I certify that the preceding one hundred and thirty seven (137) paragraphs are a true copy of the reasons for the decision herein of Member J Henderson

............[sgd]............................................................
Associate:
Dated: 27 August 2024

Date(s) of hearing: 10 April 2023

Advocate for the Applicant: Self-represented

Solicitors for the Respondent: Ms Daphne Jones-Bolla, Sparke Helmore

Date(s) of hearing:	10 April 2023
Advocate for the Applicant:	Self-represented
Solicitors for the Respondent:	Ms Daphne Jones-Bolla, Sparke Helmore