Mohammed and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2019] AATA 5601

Mohammed and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5601 (24 December 2019)
Division:GENERAL DIVISION
File Number: 2017/6799
Re:Safar Mohammad
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member R. Pintos-Lopez
Date:24 December 2019
Place:Melbourne

The Tribunal sets aside the decision under review and remits it to the respondent with the direction that the Applicant satisfies section 21(2)(h) of the Australian Citizenship Act.

..................[sgd]......................................................
Senior Member R. Pintos-Lopez
CITIZENSHIP – application for citizenship by conferral – where citizenship application refused – good character requirement – aggravated assault causing harm – decision set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Minister for Home Affairs v G [2019] FCAFC 79
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Lo and Minister for Immigration and Border Protection [2016] AATA 579
Re Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Zheng v Minister for Immigration and Citizenship [2011] AATA 304
Singh and Minister for Immigration and Border Protection [2019] AATA 1406
Singh v Minister for Immigration and Citizenship [2012] FCAFC 12
Secondary Materials
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
Department of Immigration and Citizenship (Cth), Australian Citizenship Instructions,
10 September 2016
REASONS FOR DECISION
Senior Member R. Pintos-Lopez
24 December 2019

The Applicant seeks review of a decision made by a delegate of the Respondent, the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (also referred to herein as the “Minister”) pursuant to s 24(1) of the Australian Citizenship Act 2007 (Cth) (the “Act”), dated 11 October 2017 to refuse to approve the Applicant becoming a citizen. The decision was made on the basis that the delegate was not satisfied that the Applicant was of "good character" as required by s 21(2)(h) and 24 of the Act.
For the reasons that follow, the Tribunal sets aside the reviewable decision.
BACKGROUND
The Applicant was born in Afghanistan in September 1987.
On 28 May 2012, the Applicant was granted a Class UF Provisional Resident subclass 309 visa which permitted him to travel and remain in Australia until he received notification of a decision in relation to a permanent visa application.
On 2 July 2013, the Applicant was arrested in relation to two counts of aggravated assault.
On 13 September 2013, the Applicant pleaded guilty to the charge of aggravated assault causing harm (with weapon) against child or spouse and sentenced to be of good behavior for 12 months with a $500 bond.
On 10 January 2014, the Applicant was notified of being granted a Partner (Migrant) (class BC) Partner (subclass 100) visa.
On 5 September 2016, the Applicant applied to become an Australian citizen. In response to the question: “Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?”, the Applicant answered “yes.” He wrote in response to a request to provide all relevant details:
Court date 13/09/2013 offence – Aggravated Assault Causing Harm (with Weapon) Against Child or Spouse. Convicted – Released on entering bond $500 to be of good behaviour for 12 months.
On 11 October 2017, the application was refused on the basis that the Applicant did not satisfy the requirement to be of good character under s 21(2)(h) of the Act.
On 13 November 2017, the Applicant made application for review of the decision. In the application, in response to the question why the Applicant claimed that the decision is wrong, the Applicant stated:
I'm living with my wife happily and after that there are no any criminal history. You can ask my wife and she will tell you i about my character.
RELEVANT FACTS
The Applicant’s offending
On 2 July 2013, the Applicant was arrested by South Australia police and charged with two offences:
(a)aggravated assault causing harm against police - no weapon,[1] allegedly committed on 27 June 2013; and
(b)aggravated assault causing harm (with weapon) against child or spouse, allegedly committed on 2 July 2013.
[1] The South Australian Police Apprehension Report describes the charge as aggravated assault causing harm against police – no weapon, however it names the Applicant’s wife as the victim and in the summary of evidence it describes an incident where the Applicant whipped his wife with a belt to her legs causing pain and bruising.
Following his arrest, the Applicant made an application for bail, which was refused.
On the same day, the police served the Applicant with an interim intervention order for domestic abuse.
On 3 July 2013, the Applicant appeared before the Berri Magistrates Court and was granted bail on an undertaking:
not assault, harass, threaten or intimidate his wife…during the term of this Bail Agreement
…
not approach or communicate, either directly or indirectly, with [her] whether in person or through any person or any other means.
A South Australian police force informant provided details of the Applicant’s offending.[2] The informant stated, as to the offence details, that the Applicant had assaulted his wife on 27 June 2013 and 2 July 2013 in circumstances of aggravation being that the victim was his spouse and that he used or threatened to use an offensive weapon to commit or in committing the offence.
[2] Dated 3 July 2013.
A document entitled “South Australian Police Department Police Apprehension Report” (with a run date of 8 May 2018) was in evidence before the Tribunal. The offence details and summary of evidence provides details in relation to the two alleged offences. In relation to the 27 June 2013 allegation, it stated that the Applicant assaulted his wife by whipping her with a belt to her legs causing pain and bruising. In relation to the offence of 2 July 2013, the report stated that the Applicant had assaulted his wife:
by stabbing her in the hand with a kitchen knife causing a laceration to her fingers.
The Applicant’s wife’s version of events is summarised in the report:
The victim states that on Thursday, 27th June 2013 she was at home with the accused when they have had an argument. The victim states that the accused grabbed a belt and whipped her legs with the belt buckle causing pain and bruising to her legs.
The victim states that on Tuesday, 2nd July 2013 she was at home with the accused when they have had an argument. The victim states that the accused grabbed a kitchen knife. The victim states that she was in fear of the accused so she tried to grab the knife causing a laceration to her fingers. The victim required medical treatment as a result of this injury.
The victim states she is in fear of the accused.
The report provided in relation to the Applicant’s version of events:
The accused stated that on the 27th June 2013 he and his wife beat each other. The accused stated that he may have hit her with a belt but not with the buckle. The accused stated that the victim beat him as well.
The accused stated that on the 2nd July 2013 he had an argument with his wife.
The accused stated he grabbed a knife and handed it to the victim's father beat him with. The accused states the victim tried to grab the knife and cut her hand.
On 13 September 2013, the Applicant pleaded guilty and was convicted of the offence of aggravated assault causing harm (with weapon) against child or spouse committed on 27 June 2013 and sentenced to be of good behavior 12 months with a $500 bond.[3] The charge of aggravated assault causing harm (with weapon) against child, allegedly committed on 2 July 2013, was dismissed.
[3] A document entitled “Check Results Report” (with a report run date of 27 June 2017) sets out, the Applicant’s disclosable court outcomes. The report provides that the Applicant was convicted in South Australia on 13 September 2013 of the offence of aggravated assault causing harm (with weapon) against child or spouse with the result that he was convicted to be on a good behaviour bond $500 for 12 months.
On 24 September 2013, the Berri Magistrates Court issued the Applicant with an intervention order in substitution for the interim intervention order that had been issued by South Australia police.
The evidence of offending and post-offending
On 3 August 2017, the Applicant declared a statutory declaration in the context of his application for citizenship where he corroborated the account of his involvement with the police and the Courts in 2013. The Applicant stated that there were a number of factors that he considered ought be taken into account:
during the period in which the crime was commoited [sp.], I was unfamiliar with Australian laws and regulation. Furthermore, due to cultural differences, I wasn't completely aware of the wrongness of the crime that I had commited [sp.]. Now I understand and am aware that it was wrong of me to commit such a inhumane crime.
Furthermore I have fulfilled all the obligations that were ordered by the court, see ss 2, 7 and 8. I believe that I am of good character and my application for the Australian citizenship should be approved for the following reasons;
A) I have never after that incident either threatened or assaulted my partner.
B) After that incident, I have not been convicted of another crime of similar nature as the one mentioned above, however, I was fined for either crossing or speeding. I don't remember exactly.
C)I love and respect my wife.
D) I am aware of the laws of Australia and I am aware that I am subjected to them.
E) I am living happily with my wife, we have had a beautiful daughter together who is turning three this November. Our second daughter is due this September.
F) As I mentioned in s 11(E) I have a daughter and I would never want her to suffer what her mother did.
G) I am ashamed that I had committed such a horrific act.
On 15 July 2018, the Applicant declared a statutory declaration. He stated in his declaration:
Taj and I have been living happily after the incident in 2013. If we were not happy or if she was not happy, she would not trust me to be the father of her daughters; she would have left me before we had our first daughter. Throughout the five years that have passed from that incident, each day, I try to be there for Taj and the kids because I want to prove to her that what happened was a mistake.
I want to be there for them through everything because I do not know how my life will be without [my wife] and my little girls. Each day, coming home from work, it is there welcoming smiles and hugs that make me want to be a better man. On 15 July 2018, the Applicant’s wife, declared a statutory declaration in support of the Applicant. She stated that:
After the incident in 2013, Safar has changed completely. We have two children together; the eldest, Sehrish, is 3.5 years old and the youngest, Haniya, is 9 months old.
The Applicant’s wife provided details of the Applicant’s character as a husband and father:
He is a very family orientated man, I can always rely on him for anything. Throughout my pregnancies, he was always with me, taking care of me like any good husband will do. He truly loves me and the kids.
Throughout our six year marriage, he has been loyal to me, there has not been a day in which he has ever done something which made me doubt his commitment to our marriage.
The Applicant’s wife stated, in relation to the Applicant’s conviction:
People make mistakes, however, people do change once they have accepted they made a mistake. Safar made a mistake 5 years ago and he accepted his mistake, after that day, every day that passed, he tried to make it up to me, in fact even now, he is trying. When that incident happened, we did not have any children, if I did not see a ray of hope in Safar, I would have left him then. I would not have waited to get pregnant, I would have not trusted him to be the father to my children. However, I did and I know my decision was right because Safar the past few years has been my rock. He has proved on many occasions that despite the dark phase in our past, we have a bright future together.
The Applicant’s evidence at the hearing was consistent with his 2017 and 2018 statutory declarations. He gave further evidence of the steps he had taken towards reform. The Applicant was asked if he had sought help from a general practitioner, counsellor or men’s referral service in relation to his offending. He stated that he had spoken to his community elders and father-in-law and stated that they had given him advice in relation to adjusting to Australia.
The character references
On 4 August 2017, Hamida Musa Khan declared a statutory declaration stating that the Applicant’s wife had been an extremely close friend for nearly eight years and that he has known the Applicant for five years. He stated that the Applicant was a reputable citizen of his community and was well-known and known as a very caring man. He attested that the Applicant was loving and caring towards everyone including his wife. He stated that he was aware of the Applicant’s criminal history for domestic violence. Mr Khan stated further that:
I know that now he is no longer that man, he has changed and deeply cares about his wife. Taj is extremely happy and content with both her life and Safar.
On 6 August 2017, Mr Rahmatullah Hussaini, declared a statutory declaration and stated that, at that time, the Applicant had been a friend for four years. He stated that the Applicant had been a reputable member of the Afghan community who, among his group of fellow colleagues was well-known and respected. Mr Hussaini attested that the Applicant was of good character. He stated that the Applicant loved his wife and cared for her and was extremely ashamed of his criminal past, that is, being charged for domestic violence. He stated that the Applicant and his wife often come to his house for dinner or vice versa and that the Applicant’s wife was “extremely happy” with him.
On 27 May 2018, Zakir Hussian Rahimi prepared a letter in support of the Applicant’s application. He stated that the Applicant was a good and honest friend and that he had been working with the Applicant in the construction industry since 2017. Mr Rahimi stated that he and the Applicant were now working in a partnership. He stated that the Applicant had been honest and loyal to his work and is well to the people around him.
On 27 May 2018, Umeed Shafahi provided a letter in support of the Applicant. He stated that he had known the Applicant for more than six months and that the Applicant worked with him as a subcontractor. He stated that the Applicant was respectful to everyone in addition to being honest and trustworthy.
On 28 May 2018, Mr Jaweed Mohammadi prepared a letter as community religious leader for the Hazara Australian Community Association of Victoria in support of the Applicant. He stated that the Applicant is a hard worker and honest person with good behaviour in the community. Mr Mohammadi stated further:
Safer is one of our active community member, supporting his family very well, also he as a subcontractor worker in construction, supporting other community members to find job in construction site.
On 9 June 2018, Dr Anita Nesarajah prepared a letter that stated:
This patient has been coming to our clinic since 27/02/2016. I know his wife Taj Iqbal and have been treating her for various illness since 11/08/2016. He has always been a very pleasant man who has been always looking after Taj and their 2 children. He has always been extremely supportive and kind to his family and I hope this will be favourable to his citizenship application.
The evidence before the Tribunal includes a document entitled “Good Character Letter from Community”, signed by four people in relation to the Applicant’s application for Australian citizenship. The character letter states that the Applicant is an account signatory in respect of a “community group” which consists of 35 families and as a joint bank account. The signatories stated that the Applicant’s position as treasurer is based upon reliability, honesty and accountability. The letter states further:
During the period till date we found Mr Safar Mohammad a clam, polite and honest individual. We have noticed he respects everyone with dignity inside and outside the community regardless of culture race and religion.
RELEVANT LAW
The requirements for Australian citizenship by conferral are provided in Part 2, Division 2 (Subdivision B) of the Act.[4]
[4] Part 2, Division 1 of the Act provides the circumstances where automatic citizenship may apply, including by birth, by adoption for abandoned children or by incorporation of Territory.
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. The additional subsections of s 21 of the Act provide seven situations in which a person may be eligible to become an Australian citizen each having a set of eligibility criteria which must be satisfied:
(a)General eligibility: s 21(2).
(b)Permanent or enduring physical or mental incapacity: s 21(3).
(c)Person aged 60 or over: s 21(4)(a)(i) or person with hearing, speech or sight impairment: s 21(4)(a)(ii).
(d)Person aged under 18 years: s 21(5).
(e)Person born to former Australian citizen: s 21(6).
(f)Person born in Papua: s 21(7).
(g)Statelessness: s 21(8).
The general eligibility criteria at s 21(2) of the Act are relevant and apply in this application.
Section 21(2) of the Act provides for general eligibility:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
(Emphasis added.)
Section 24 of the Act grants power to the Minister to make a decision in relation to a person who has made an application under s 21 of the Act:
(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.
Note: The Minister may cancel an approval: see section 25.
(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).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
(2A) If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in relation to the person, the decision under subsection (1) of this section must be made by the Minister personally.
(Emphasis added.)

Section 24(6) of the Act sets out circumstances where an application for Australian citizenship by conferral must not be approved if a person has committed an offence against an Australian law or where there are proceedings for an offence against an Australian law pending in relation to the person.
In Singh v Minister for Immigration and Citizenship [2012] FCAFC 12, the Full Court considered the operation of s 24 of the Act:
… First, the appellant’s assumption that he had an “entitlement” to citizenship is incorrect. Section s 21(5) provided only that a person under the age of 18 years was “eligible” to become an Australian citizen, not entitled to that status. We note also that, pursuant to s 20:
A person becomes an Australian citizen under this subdivision if:
(a) the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; …
In other words, the Act itself treated the entitlement to citizenship as being dependent upon a favourable exercise of the power conferred by s 24. Further, the word “must” was frequently used in Div 2 where it was intended that the Minister act in a particular way. See s 17(2), providing that approval “must” be given in the absence of disqualifying factors, and the subsequent subsections which provided that the Minister “must not” give approval. See also subss 24(1), (3) et seq. There were many other examples. There was no express requirement that the Minister “must” approve an application pursuant to s 21. Section 24(1) provided that the Minister must either approve or refuse to approve a person’s application for citizenship. Subsection 24(1A) provided that the Minister must not approve an application in certain circumstances. Subsection 24(2) provided that the Minister “may” refuse to approve such an application.
The appellant places great emphasis upon s 24(2). Such an approach places no weight upon the clear alternatives offered in s 24(1). Other, broader considerations, discussed below in connection with the matter raised in para 2(a) of the appellant’s outline, also militate against this approach. Brennan J said in Drake (No 2) at 642, concerning the relevant provision in that case, that the power was “either to deport or, reciprocally, not to deport”. The s 24 power should be similarly construed. We consider that s 24 conferred power upon the Minister to approve or disapprove, without any presumption for or against either alternative. Section 24(2) simply made it clear that entitlement to make an application did not imply entitlement to approval.[5]
[5] [54]-[56].
The expression “good character” is not defined in the Act but it has been considered by a number of authorities.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, Davies, Lee and R D Nicholson JJ, considered an appeal from an application for a business visitor (short stay) visa under s 501 of the Migration Act 1958 (Cth) on the basis that the decision maker was not satisfied that the appellant was of good character. Justice Davies stated:
The question whether a person is or is not of "good character" is primarily an issue of fact. It is not the function of this Court to form its own view of such a fact. Provided that the decision-maker has approached the issue correctly, has acted in accordance with the principles of procedural fairness, has taken into account all material factors, has disregarded immaterial factors and has reached a decision which was open on the material, which is to say that the decision made was not one which no reasonable decision-maker would have made, then this Court will not grant an order of review.
…
It should also be observed that the 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. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, "good character" refers to reputation and repute as such. It does not. But 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.[6]
(Emphasis added.)
[6] [8] and [9].
Further, Lee J stated:
Unless the terms of the Act and regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion. (See: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 117 FLR 455 per Miles CJ at 459-460; Plato Films Ltd v Speidel [1961] AC 1090 per Ld Radcliffe at 1128-1129, Ld Denning at 1138.) 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, (see: In Re Davis [1947] HCA 53; (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at 461). Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.[7]
(Emphasis added.)
[7] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [19].
In Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132, the Tribunal stated:
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.[8]
[8] [14].
The policy documents
The Minister refers to and relies upon certain policy documents in its submissions.[9]
[9] Including a policy document is entitled “Citizenship Policy” at chapter 11 and a policy document entitled “Citizenship Instructions” at chapter 10.
In Lo and Minister for Immigration and Border Protection [2016] AATA 579, the Tribunal stated in relation to citizenship policy documents:
The Department has developed policy in the form of the Citizenship Policy to support the Citizenship Act. …
Decision-makers should generally apply policy such as the Citizenship Policy unless there are cogent reasons not to, such as the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 645 per Brennan J.[10]
[10] [16]-[17].
In Minister for Home Affairs v G [2019] FCAFC 79, the Full Court stated in relation to executive policy:
It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created: see Drake (No 2) at 640 per Brennan J; NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at [24] per Gleeson CJ; Cummeragunga at [159] per Jacobson J...
…an executive policy relating to the exercise of a statutory discretion must leave the decision-maker “free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the [decision-maker] will make in the circumstances of a given case”: Drake (No 2) at 641. [11]
[11] [58]-[59].
In relation to s 24 of the Act, their Honours stated further:
First, the statute confers a broad and unfettered discretion in s 24(1) to approve or refuse to approve a person who has made an application under s 21 becoming an Australian citizen…
The breadth of the discretion in s 24(1) is not inimical to the adoption of an executive policy, even a detailed executive policy, to guide the exercise of the discretion… Moreover, the adoption of a policy in such a case promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike: see Plaintiff M64 at [54].[12]
[12] [64]-[65].
The Citizenship Policy referred to by the Respondent in this application, states:
The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.[13]
[13] Citizenship Policy, 1 June 2016, at 1.
Further, the Citizenship Policy states:
Citizenship Policy, which is part of the centralised departmental instructions system (CDIS), replaces the policy guidance previously provided in the form of the Australian Citizenship Instructions (the ACIs), which were last published on 26 February 2015. From 1 June 2016, the ACIs detail the citizenship operational instructions.
The structure of the Citizenship Policy differs from that used in the ACIs and additional policy clarification and updated policy guidance has been provided throughout.[14]
[14] Ibid.
The Citizenship Policy provides an overview of the legislative framework:
The Act, which came into effect on 1 July 2007, sets out the conditions under which Australian citizenship may be acquired or lost. The Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitional Act) provide for transitional matters in relation to applications under the old Act. The Australian Citizenship Regulations 2007 (the Regulations) prescribe matters permitted by the Act for carrying out or giving effect to the Act. There are also a number of legislative instruments, instruments of delegation, instruments of authorisation, and a determination made under the Act.
The Acts, the Regulations, instruments, determinations and procedural guidance are published and distributed separately from this policy document.
The Citizenship Policy document provides guidance on the purpose and interpretation of the Act and the Regulations. It also provides additional policy requirements within the framework of the Act.[15]
[15] Ibid, 18.
Chapter 11 of the Citizenship Policy provides:
The Act requires that Applicants aged 18 and over who seek to become Australian citizens must be of ‘good character’. Good character is not defined in the Act. The purpose of this chapter is to provide guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’.
It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are ‘satisfied’, on a reasoned basis that an Applicant is, or is not, of good character.[16]
[16] Ibid, 144.
In terms of the definition of “good character”, the Citizenship Policy states:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an Applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship (refer to What is good character).
Character considerations under the Migration and Citizenship Acts are not the same and it is possible that an Applicant could have passed the migration character test but still not be of good character under the Act (refer to Relationship between citizenship and migration legislation).[17]
[17] Ibid, 145.
The Policy then proceeds to consider the definition of “good character” by reference to various decisions including by reference to the decision in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, referred to above, and other decisions of the Tribunal including Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Zheng v Minister for Immigration and Citizenship [2011] AATA 304 and Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326.
The role of executive policy in the Tribunal’s decision-making has long been considered: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
In Singh and Minister for Immigration and Border Protection [2019] AATA 1406, I considered the role of the policy documents and stated:
The words of the Act are paramount, to be applied in the circumstances of the Tribunal exercising executive power. Material before the Tribunal, such as the Policy, which is intended to assist, is a matter to be taken into account, as the Tribunal considers necessary in the exercise of the power conferred upon it. Accordingly, I have considered and take the Policy into account in this decision.[18]
[18] [41].
APPLICATION
Section 21(2) of the Act provides that a “person is eligible to become an Australian citizen if the Minister is satisfied that the person”, among other things, “is of good character at the time of the Minister’s decision on the application.”
The issue for determination by the Tribunal, is whether it can be satisfied that the Applicant is a person of good character for the purposes of s 21(2)(h) of the Act.
The Respondent’s Statement of Facts, issues and Contentions, dated 22 June 2018, submits that the Applicant cannot be considered to be a person of good character because he has been convicted of a serious offence and insufficient time has passed for him to demonstrate that he is of good character.[19]
[19] [25].
The Respondent submits further that the Applicant:
has failed to demonstrate that he possesses the enduring moral characteristics appropriate for the grant of Australian citizenship. In particular, his violent behaviour to his spouse is inconsistent with what Australian society considers to be appropriate behaviour for the purposes of establishing good character and he needs to demonstrate a pattern of good behaviour over a more significant period before the Tribunal could be satisfied that he is of good character. Australian community standards in relation to domestic violence are transforming. They are reflected in a decision taken on 1 April 2016 by the Council of Australian Governments to "take urgent collective action to reduce violence against women and their children" and "challenge gender inequality and transform community attitudes and hold perpetrators to account for their actions.”[20]
[20] [30].
In summary, the Respondent submits that the Applicant’s offending:
is serious and that not enough time has passed since his last conviction for Mr Mohammad to have established a pattern of good behaviour to justify a conclusion by the Tribunal that he is now of good character. This is especially so in circumstances where Mr Mohammad has downplayed the seriousness of his conduct and attributed his conduct to his victim, different cultural practices and a poor understanding of Australian law in committing, and failing to accept responsibility for, his domestic violence offences, Mr Mohammad’s conduct is incompatible with what Australian society considers to be appropriate behaviour for the purposes of establishing good character.[21]
[21] [45].
The present application concerns an Applicant with one conviction for an offence in 2013. The allegation concerning an earlier offence is a relevant circumstance albeit that the allegation was dismissed.
As the authorities cited above provide, the matters that may bear on a determination of the Applicant’s good character include:
(a)the criminal conviction as a question of fact;
(b)the nature or seriousness of the offence and, in the words of Davies J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [9], “whether or not it reflected adversely upon the character of the Applicant”; and
(c)any evidence of the Applicant’s reform.
The Respondent’s position, as noted above, may be summarised as a submission that:
(a)the offence, as it concerns domestic violence, is inherently serious;
(b)the Applicant needs to demonstrate a pattern of good behaviour, which requires an adequate amount of time to elapse, which amount of time is not stated nor is there any particularity to the circumstances that would indicate reform; and
(c)that the Applicant has downplayed and not taken responsibility for his offending by referring to different cultural practices and his poor understanding of Australian law as well as attributing his conduct to his victim.
I accept the account of the offence provided by the Applicant’s wife that is described by an informant in the South Australian Police Department Police Apprehension Report. Taking into account the facts described in that account, the offending is serious. Domestic violence is serious by its very nature. There are a number of relevant circumstances to the Applicant’s offending, including that the assault upon the Applicant’s wife was in the context of a marital argument. Further, it is also relevant that the Applicant pleaded guilty without going to trial and that the second alleged offence was dismissed.
I do not accept the Respondent’s submission that the Applicant downplayed the seriousness of his offending by referring to the different cultural practices in Australia and Afghanistan. There is no evidence to refute the Applicant’s statement that he did not understand Australian law. To say this is not to furnish the Applicant with an excuse to his offence but it equally does not amount to an attempt to downplay the offending as submitted by the Respondent. I do not, however, accept the Applicant’s contention that he did not understand the wrongness of the crime. Notwithstanding, I accept the Applicant’s evidence of his remorse and shame. It is also relevant, that the Applicant fully disclosed his offence in his application for citizenship.
In the circumstances of the application, the wife’s evidence is to be given particular weight. She gave evidence that the Applicant has changed completely since the offending in 2013. She speaks highly of the Applicant as a husband and, since that time, as a father.
The Applicant’s offence occurred six years ago and it has been five years since he completed his good behaviour bond. There is no prescription as to the adequate amount of time that needs to elapse before the Applicant’s good character can be properly reassessed. Indeed, the mere effluxion of time cannot, by itself, be a determinative as the Respondent appears to submit. I accept that the incident was isolated; there is no evidence to the contrary. I also accept the evidence of the Applicant’s reform.
In terms of the character references, I have taken into account, as a question of the weight to be attributed to the matters referred to in those statements, their similar form and the natural bias exhibited in favour of the Applicant. Notwithstanding, I find that the numerous character references, insofar as they amount to a relevant circumstance, serve to show that the Applicant has significant community support and that members of his community hold him in high regard.[22]
[22] In relation to the Applicant’s references in support of his application, the Respondent submits in the Statement of Facts, Issues and Contentions, at [41], that the “Minister contends that little weight should be given to Mr Mohammad’s references Statutory declarations have been provided by two members of the Afghan—community; Rahmatutlah Hussaini and Hamida Musa Khan. Both referees state they have known Mr Mohammad for four and five years respectively and both acknowledge Mr Mohammad's domestic violence offences. However, while both references attest to Mr Mohammad's good character, they shed no light upon Mr Mohammad's character, nor do they explain why, notwithstanding his domestic violence offense, he is nevertheless a person of good character. Both references are very similar in wording. As noted in Chapter 11 of the Citizenship Policy, decision makers should give little weight to references which are identical, or very similar, in wording.”

On balance, and for the reasons set out above, I find that the evidence shows that the Applicant is of good character for the purposes of s 21(2)(h) and 24 of the Act.
CONCLUSION
On the basis of the evidence before the Tribunal, and taking into account the submissions made by the parties, I determine that the correct or preferable way in which to perform the duty under s 24(1) of the Act and to exercise the discretion in s 24(2) of the Act, in relation to the Applicant’s citizenship application is to set aside the reviewable decision.
I find that the Applicant is of “good character” for the purposes of s 21(2)(h) of the Act as a question of fact.
DECISION
The Tribunal sets aside the decision under review and remits it to the Respondent with the direction that the Applicant satisfies section 21(2)(h) of the Act.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Pintos-Lopez

.......................[sgd].................................................
Associate
Dated: 24 December 2019

Date of hearing:
17 September 2018

Advocate for the Applicant: Self-represented

Advocate for the Respondent:
Rachael Grivas

Solicitors for the Respondent: Clayton Utz

Date of hearing:	17 September 2018
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Rachael Grivas
Solicitors for the Respondent:	Clayton Utz