Nambiraj and Minister for Immigration and Border Protection (Citizenship) - [2018] AATA 463

Nambiraj and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 463 (9 March 2018)
Division:GENERAL DIVISION
File Number: 2017/3676
Re:Kajenthiran Nambiraj
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:9 March 2018
Place:Sydney

The decision under review, being the decision made on 5 June 2017 to refuse the applicant’s application for citizenship, is set aside.
In substitution, it is decided that the matter is remitted to the Minister for Immigration and Border Protection for reconsideration in accordance with these reasons for decision.
...........................[sgd].............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral - refusal of citizenship – various traffic offences - whether applicant is of good character – whether applicant has enduring moral qualities – application of Citizenship Policy – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth), s 21
CASES
Bowdler and Minister for Immigration and Border Protection [2018] AATA 347
Da Wei Zheng v Minister for Immigration and Citizenship [2011] AATA 304
Drake v Minister for Immigration and Ethnic Affairs [1979] 2 ALD 60
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 68 FCR
Mahmood and Minister for Immigration and Border Protection, [2017] AATA 2033
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 (6 November 1985)
Safar v Minister for Immigration and Border Protection [2015] AATA 503
Wang v Minister for Immigration and Border Protection [2014] AATA 89
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Chris Puplick AM, Senior Member
9 March 2018
NARRATIVE OF PROCEEDINGS

Mr Kajenthiran Nambiraj is a citizen of Sri Lanka who arrived in Australia by boat, illegally on 6 November 2009. He was granted the status of a permanent resident on 25 May 2011. It is accepted that he cannot return to Sri Lanka for genuine fear of persecution.
On 5 June 2015 Mr Nambiraj submitted an application for grant of citizenship by conferral. One of the conditions which needs to be met before such a conferral can be granted is that the applicant (Mr Nambiraj) has to demonstrate to the satisfaction of the decision maker that the applicant is a person of good character.
On 1 March 2017 the Minister’s delegate wrote to Mr Nambiraj to inform him that he (the delegate) had information before him which suggested that Mr Nambiraj may not be a person of good character. The delegate set out the grounds for potentially coming to that view and invited Mr Nambiraj to comment on them in reply. He did so by way of provision of a Statutory Declaration made on 27 March 2017.[1] This response included an expression of regret for his driving offences; an indication that he had changed his lifestyle and social environment and that he was anxious not to prejudice any application for his wife to be able to join him in Australia. On 5 June 2017 the Minister’s delegate refused Mr Nambiraj’s application on the grounds that he was not of good character, one of the requirements which must be met as outlined in s 21(2)(h)of the Australian Citizenship Act 2007 (Australian Citizenship Act). On the 23 June 2017 Mr Nambiraj submitted his application to the Tribunal for a review of that decision.
[1] Tribunal documents at 17.
The matter was heard before the Tribunal on 26 February 2018.
The Applicant was represented by Mr Foster (of counsel) and Mr Sinnarajah (solicitor). The Respondent was represented by Mr Eskerie (of the firm Sparke Helmore). Mr Nallainathan acted as Tamil language interpreter.
Counsel for Mr Nambiraj put to the Tribunal that the decision they were seeking was that the matter be remitted for reconsideration rather than that the Tribunal make a decision overturning or substituting for the original decision. The Respondent agreed that should the Tribunal view Mr Nambiraj’s application favourably, the preferred course of action would be remittal.
THE FUNDAMENTAL ISSUES
As will be evident from the discussion which follows, this application boils down to two central and salient issues both of which were relied upon by the Minister’s delegate in making their adverse decision:
·did Mr Nambiraj deliberately mislead the Department by concealing relevant and material facts from his citizenship application, and
·is Mr Nambiraj’s driving record of such a nature that, taken together with the above, it means that this Tribunal is not persuaded that he has established himself as a person of “good character” for the purposes of the Australian Citizenship Act?
VISAS AND CITIZENSHIP
In his opening submission to the Tribunal the Minister’s representative was at pains to point out the different regimes which exist between the granting of visas under the Migration Act 1958 and of citizenship by conferral under the Australian Citizenship Act.
Under the former, the Minister is empowered to refuse the grant of a visa on a number of grounds, including that the Minister is not satisfied that the applicant is “of good character”. The onus lies with the Minister to make a negative finding.
Under the latter, the applicant is required to satisfy the Minister that he or she is of “good character”. The onus lies with the applicant to advance a positive case.
REFUSAL OF THE APPLICATION: CITIZENSHIP CRITERIA
Section 21(2) of the Australian Citizenship Act 2007 establishes criteria for the eligibility of citizenship. It enumerates from (a) to (h) a series of qualifications, each of which must be met to the satisfaction of the Minister.
It is conceded in this matter that Mr Nambiraj meets the criteria which are set out in sections 21(2)(a) to (g) and as result it is not necessary to enumerate them or to comment further upon them.[2]
[2] Decision Record dated 5 June 2017 at page 11 [T documents at p. 15]. This statement was confirmed by the Respondent’s representative in evidence on 26 February 2018.
The Minister however contends that the Applicant does not meet the qualification set out in section 21(2)(h) which requires that he be:
of good character at the time of the Minister’s decision on the application.
The whole of Mr Nambiraj’s application turns on meeting this qualification and failure to do so must necessarily be fatal to his application.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
The material produced in evidence to the Tribunal, comprises two sets of documents. The “T-Documents” consist primarily of two classes of material, the former relates to Mr Nambiraj’s formal application for citizenship (together with personal details of his birth certificate and marriage) and the latter to matters related to his driving record. There is also a letter of reference included from Reverend Dr John D Jegasothy. In the “Supplementary T-Documents” there are copies of the documents described in para [2] above, together with records produced under summons from the NSW Police and Roads and Maritime Services (RMS) relating to the Applicant’s police and driving records. Also included are documents related to the relevant statutes and policy directives applicable in this instance. Statement of Issues, Facts and Contentions were supplied by both parties.
RELEVANT BACKGROUND INFORMATION
There were several matters before the Tribunal which were agreed by the parties and which have some material bearing on the Tribunal’s subsequent considerations.
It was agreed that Mr Nambiraj had fled Sri Lanka after he and his family had suffered genuine persecution in that country’s civil war; that he had arrived in Australia illegally by boat, had subsequently become a permanent resident and was unable to return to Sri Lanka.
It was agreed that in 2015 Mr Nambiraj had travelled to India where he had married a lady described as “his school time sweetheart”[3]; had remained in India only one month (the length of his visa) and that he had subsequently returned to Australia and she to Sri Lanka, where she resides currently.
[3] T-document at p 22. Reference from Rev John D Jegasothy.
It was agreed that on 13 August 2017 Mr Nambiraj was the victim of a stabbing (actually a “glassing” attack) in his own home and that as a result he sustained serious injuries which resulted in his hospitalisation until 31 August 2017. It is agreed that injuries suffered in this attack have left him with on-going medical issues, especially in relation to his ability to drive or have full utilisation of his right hand. He is currently not working and is in receipt of a Newstart allowance. On 1 September 2017, on discharge from hospital, Mr Nambiraj made a comprehensive statement to the Police about this incident[4] which was tendered in evidence before the Tribunal.
[4] Applicant’s Statement of Issues, Facts and Contentions.
THE CITIZENSHIP APPLICATION
Mr Nambiraj submitted an application for citizenship by conferral on 21 May 2015. On that application form he was required to give yes or no answers to a series of questions listed at item 35 of the form by marking the appropriate box.
Mr Nambiraj answered “yes” by marking the appropriate box, to the question:
Have you ever 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 residents application and any ‘spent’ convictions)?
In the elaboration of this answer which is required at the end of section 35, the following words are to be found in handwriting:
traffic offence – 2014 – fine, 6 mth bond.
A set of initials appear alongside this entry and Mr Nambiraj stated in evidence that this section of the form was completed, on his instructions by a third (unnamed) person.
In response to other questions in section 35, Mr Nambiraj responded by marking the “no” box. Those two questions were:
(e)Are you aware of any proceedings pending against you overseas or in Australia for an offence, including proceedings by way of appeal or review?
...
(g)Have you been charged with any offences overseas or in Australia that is currently awaiting legal action?
Mr Nambiraj agreed that he had marked the “no” boxes in each case himself.
It was demonstrated in evidence and confirmed in cross-examination that, in relation to the first question related to traffic offences, while Mr Nambiraj admitted that he had been convicted of at least one offence, he had failed to detail the other offences which were part of his convictions and driving record at the time.
It is also the case that Mr Nambiraj never received a “6 month bond” for any offence but I find it plausible that he may have confused this with the granting of a section 10A finding in relation to a matter of failing to provide another driver with details of his licence following a motor accident.[5]
[5] This is provided for under the Crimes (sentencing Procedure) Act 1999 (NSW) whereby a finding of guilty of the offence is made but no conviction recorded.
It was also demonstrated in evidence and confirmed by cross-examination that Mr Nambiraj was fully aware that at the time he completed his application form he had outstanding proceedings against him and charges pending in relation to those.
For the sake of completeness I should note that the Respondent pressed Mr Nambiraj on the way in which he had filled in an Incoming Passenger Declaration[6] by ticking the “no” box in response to the question “Do you have any criminal convictions?” when clearly he had. However I am satisfied that Mr Nambiraj did not understand this question about “criminal” convictions to relate to traffic offences (nor I think would many returning passengers); although his admission that he “did not read” the card was not reassuring.
[6] The date is obscure but appears to be 22 September 2015
THE DRIVING RECORD
Mr Nambiraj has a number of driving offences as set out on pages 16 and 17 of the Supplementary T-documents. They are as follows:
·7 April 2014 as a novice driver he was detected with a PCA of 0.015. This offence is proven if the driver is detected with a PCA in the range 0.00 to 0.019 and is described as being “the lowest type of drink-driving offence provided in the Roads Transport Act 2013.”[7]. He was fined $300 and disqualified from driving from 1 May 2014 for three months.
·9 August 2014 he was detected with a PCA of 0.082 at roadside in a Random Breath Test and 0.065 on subsequent testing. He was fined $440 and disqualified from driving from 4 September 2014 for twelve months.
·On the same date it appears that he had committed the offence of driving while disqualified. This appears to arise from the fact that while his disqualification period had expired on 31 July 2014 he had failed to apply for and receive a new driver’s license as required. His explanation was that he ”had not had time” to make such an application and that he had assumed that the disqualification period being over, he was entitled to drive again, was not seriously challenged and has some degree of plausibility.
·4 April 2015 he faced charges of failing to provide full details of his licence to another driver after a motor vehicle accident. He was convicted but given a s10A as explained above. Mr Nambiraj’s explanations for his failure to give full details were somewhat less than convincing but there is no evidence which directly refutes them.
·On the same date, he was charged with driving a motor vehicle while disqualified (arising from the 9 August incident), fined $1000 and his disqualification period was extended for a further two years beyond 4 September 2015. He thus became eligible to drive again only from 3 September 2017. His claims to have no further driving offences must be seen in the light of this timeline of eligibility.
[7] nsw.criminallegal.com.au/drink-driving/novice-range-drink-driving
The Respondent conceded at the outset of proceedings that Mr Nambiraj’s driving convictions were at the “lower” end of the range of seriousness, but that they were not to be ignored and that his two PCA convictions and his driving while disqualified were matters of legitimate community concern.
MR NAMBIRAJ’S RESPONSE
Mr Nambiraj assisted by an interpreter, although occasionally with some difficulties, was cross-examined in some detail and taken through many other matters by his own representatives.
In a number of respects Mr Nambiraj gave answers which were not always consistent and his recollections did not always accord with the documentary evidence. However I accept that some of the matters took place several years ago and memories may not always be accurate or complete. I also accept that he was suffering considerable emotional strain throughout this period.
For my purposes, two matters were of particular relevance.
In relation to both the two PCA offences and the stabbing incident (see [19] above) Mr Nambiraj admitted that he had a problem with the consumption of alcohol, primarily beer. He attributed this in part to that fact that he suffered from depression as a result of his war-time experiences in Sri Lanka (attested to in a reference from Rev Dr John J Jegasothy as involving the death of his brother and displacement of his Tamil family in the civil war[8]), his separation from his wife and his keeping of what might be described as bad company.
[8] Tribunal documents at 20-22.
He stated in evidence that he has taken steps to address issues with his drinking that he has sought counselling. Rev Jegasothy confirms this, as does a reference from Rev Fr Pancras Jordan OP, a Catholic priest and Co-ordinator of Pax Christie Queensland[9]. I accept this evidence.
[9] Applicant’s Statement of Facts, Issues and Contentions. Letter dated 12 February 2018
I should note that, while Mr Nambiraj continues to adhere to his Hindu faith, he is a semi-regular participant in the affairs of the Catholic Church community in Queensland in an area where there are a number of Christian Tamil-speakers.
Again, in his evidence Mr Nambiraj agreed that he had failed to exercise any sense of self-respect and independence because, on each of the occasions where he was detected as driving while disqualified, he had done so because he had been pressured into driving by other people who wanted him to transport them either to the cinema or to their homes. In this respect Mr Nambiraj showed a lack of moral fortitude or character in terms of being easily persuaded to drive when he knew he should not.
In a number of instances Mr Nambiraj sought to shift the blame for his actions onto other people, at one point describing a situation in which he should have been responsible for his own actions as one in which other people were “seventy percent responsible”.
However in response to these situations, Mr Nambiraj, as soon as possible after his discharge from hospital in August 2017 following the stabbing incident, left Sydney and the company he was keeping and relocated to Queensland where he now resides. He says that he does not socialise much, generally avoids going out and that what socialisation he does is largely associated with the activities of the local church (see [37] above). There is no evidence before me to dispute or disbelieve this.
Since his relocation to Queensland Mr Nambiraj has not been able to work due to the injuries suffered in the stabbing incident, for which he is receiving on-going treatment. He is currently on Newstart Allowance. However it is accepted by both parties that once Mr Nambiraj was visa-approved to work in Australia he did so in full-time employment in a number of positions (with ShoeLess stores, Qantas catering and at Flemington Markets) up until his accident. He also told the Tribunal that in all of his employment situations he paid tax as required and this assertion was not challenged by the Respondent.
Mr Nambiraj has also completed the government-approved Traffic Offenders Rehabilitation Program.[10]
[10] Applicant Statement of Facts and Contentions (sic) attaching a copy of a Certificate to this effect.
Thus I feel safe in concluding that the influences related to Mr Nambiraj’s unacceptable driving behaviour, namely a problem with drinking and association with bad company have been recognised by him and are being addressed.
In doing so I specifically reject the submission of the Respondent that “there is little evidence of any steps taken by the applicant to rehabilitate himself.”[11]
[11] Respondent Statement of Facts, Issues and Contentions at para 28
MATTERS OF GOOD CHARACTER
The Australian Citizenship Act at section 21 sets out the grounds upon which a person’s eligibility for citizenship is to be assessed. As noted in [13] above, the Respondent concedes that Mr Nambiraj’s application has been rejected because he allegedly fails one of the eight criteria, although meeting the other seven[12].
[12] Tribunal documents at 15.
The criteria “failed” is that of being “of good character at the time of the Minister’s decision on the application.” (section 21(2)(h)).
The Act contains no definition of what constitutes “good character” but in making its determination the Tribunal is guided by judicial interpretation and by the Citizenship Policy published by the Department on 1 June 2016.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs, the Full Federal Court 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.[13]
[13] [1996] 68 FCR 422 at 431-432.
The Citizenship Policy (at p. 145) elaborates this by attaching to the phrase “enduring moral qualities” the further qualifications, namely:
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.

Policy however is not the same as law. As this Tribunal said in Aston:
Policy is not law. A statement of policy is not a prescription of binding criteria.[14]
[14] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 (6 November 1985) at 21.
Nevertheless I must give due and proper consideration and weight to the statement of government policy which has been issued to assist and guide in the determination of questions of good character.[15]
[15] Drake v Minister for Immigration and Ethnic Affairs[1979] 2 ALD 60 at pp 644-645.
Page 147 of the Citizenship Policy lists 10 “characteristics of good character” which are to be expected in an applicant for citizenship. Critically in this case, one of those is:
·be truthful and not practice deception or fraud in their dealings with the Australian Government, or other government organisations, for example:
oproviding false personal information ….. during visa and citizenship applications
o……..
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
o…………..
ogiving false names or addresses to police.
Prima facie, Mr Nambiraj has failed to meet these criteria and this must, of necessity, count against his application. The Tribunal cannot simply ignore making either deliberately false or at the very least, misleading statements on a legal document as significant as a citizenship application.
ROAD SAFTEY – A COMMUNITY AND TRIBUNAL CONCERN
This Tribunal has, in recent decisions, demonstrated an increasing awareness of the disastrous impact on the Australian community of a rising road toll. Road safety is a matter of legitimate concern to all responsible citizens and to this Tribunal. I think that it is important to state that I take this matter seriously and will feel at liberty to make adverse findings against persons whose driving record is seriously offensive to community standards.
In Wang v Minister for Immigration and Border Protection the Tribunal remarked that the Applicant had:
…continued to disregard the laws whose purpose it is to protect users of the road. Those laws go to the essential safety of the community.[16]
[16] [2014] AATA 89 (28 January 2014) at [7].
In that case, the Tribunal went on, in remarks which I think have some application to Mr Nambiraj’s situation and presentation before the Tribunal:
In your evidence, you acknowledged the seriousness of that …. event in …., but you remained very focused on its effect on you and very focused on your employment and not as focused as I would have hoped on the effect of your conduct then and over the following ….. years on other people. Your focus was on your need for citizenship to assist you in relation to ….. and that is a reasonable thing, but you seemed less focused on the effect of your behaviour on the Australian community and on other road users.[17]
[17] At para 8
In Safar v Minister for Immigration and Border Protection, the Tribunal (quoting with approval, the above passage from Wang) stated:
[28] Even though each of Mr Safar’s offences may not be within the meaning of “serious offence“ under 10.5.2 of the Instructions[18], the pattern of behaviour and the number and kinds of his offences raise serious concerns. To my mind driving a motor vehicle while under the influence of alcohol is a serious matter. I would say the same about driving a motor vehicle at high speed while holding a provisional licence, driving at 112 km per hour in a 60 km per hour zone for example. One only has to consider the heavy road toll as reported in the media to understand the significant risk such behaviour poses to members of the Australian community.”[19]
[18] Since replaced by the Citizenship Policy document
[19] [2015] AATA 503.
In Da Wei Zheng v Minister for Immigration and Citizenship, Deputy President Forgie reflected on aspects of the character test when she said that one aspect of the test was a requirement to uphold and obey the laws of Australia which might be
measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character.[20]
[20] [2011] AATA 304 at [120]
Most recently in Mahmood and Minister for Immigration and Border Protection almost identical issues arose, namely a questionable driving record and the concealing of those details by the subject on his citizenship application form. In this instance the denial of citizenship based on these grounds was upheld.[21]
[21] Mahmood and Minister for Immigration and Border Protection, [2017] AATA 2033
In my own recent decision in Bowdler and Minister for Immigration and Border Protection I came to exactly the same conclusion based on exactly the same two criteria.[22]
[22] [2018] AATA 347.
MR NAMBIRAJ’S MARITAL STATUS AND POSITION
I have quoted the passage from Wang above because the phrase “Your focus was on your need for citizenship to assist you in relation to….” has resonance here.
In his response to the Delegate’s letter of 5 June raising concerns about matters held to be adverse to Mr Nambiraj’s citizenship application, he replied by submission of a Statutory Declaration dated 27 March 2017. In part that read:
My current Australian citizenship’s approval is of critical importance for my future sponsorship for a spouse visa application for my wife to join me in Australia.[23]
[23] T document at 17
Similarly, on his application to this Tribunal for review he stated one of his reasons for seeking such was:
My Australian citizenship is of critical importance for my wife to join me in Australia[24]
[24] T document at 4
The importance of his being reunited with his wife was mentioned in both of the testimonial letters from Revs Jegasothy and Jordan.[25]
[25] T document at 20 and Applicant Statement of Facts, Issues and Contentions respectively.
In response, the Minister in his Statement of Facts, Issues and Contentions contested Mr Nambiraj’s assertion that the grant of citizenship was central to his ability to sponsor his wife’s entry into Australia, advising the Tribunal:[26]
Finally, the question of whether the applicant needs Australian citizenship in order to sponsor a person for a partner’s visa is irrelevant to whether he passes the character test. In any event, contrary to the applicant’s assertions, there is no requirement for a person to be an Australian citizen in order to sponsor an applicant for a partner visa. Clause 309.211(2)[27] provides that a partner visa applicant meets the requirement of that subclause if they are the spouse or de facto partner of an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen. The applicant in the present matter is the holder of an Australian resident visa. Moreover, the applicant’s wife has applied for a Partner (Provisional) (subclass 309) / Partner (Migrant) (subclass 100) visa[28], and there is no suggestion that that application is invalid of that the applicant’s sponsorship has been refused.
[26] Respondent Statement of Facts, Issues and Contentions at para 30. Original footnotes omitted.
[27] Schedule 2, Migration Regulations 1994.
[28] A copy of which provided as a letter from the Minister’s department to the applicant’s wife dated 14 August 2017 and attached to the Applicant’s Statement of Facts, Issues and Contentions dated 22 September 2017.
Furthermore, during cross-examination the Respondent sought to challenge Mr Nambiraj on the issue of his actual desire to bring his wife to Australia citing some delays, characterised as excessive in such an application being lodged after their marriage and at one point suggesting that he was actually “reluctant” to sponsor his wife. I do not accept these characterisations.
On the face of it, I would have given considerable weight to this assertion on the part of the Minister regarding the question of whether citizenship is a necessary prerequisite for spousal sponsorship and perhaps offset it against the applicant’s obvious distress at being separated from his wife.
However, Mr Sinnarajah, on the applicant’s behalf, drew my attention to Ministerial Direction no 72 – order for considering and disposing of Family visa applications (the Direction). This was made by the Minister under s. 499 of the Migration Act commencing on 13 September 2016. I note that s. 4(3) of the Direction states “This Direction does not apply to the Administrative Appeals Tribunal”. That is however not relevant for these proceedings because the Tribunal is not considering a matter related to family visa applications but only to the grant of citizenship by conferral. However as the question of Mr Nambiraj’s marital status and the prospects for reunion with his wife was central to his application and to his responses to challenges by the Respondent in denying that application, I consider it appropriate to note and discuss this Direction and its practical operation.
This Direction :
4(1) … applies to delegates who consider visa applications for Family visas under section 47 of the Act, and perform functions or exercise powers under subsection 51(1) of the Act to consider and dispose of applications for Family visas, including in respect of matters remitted from the Administrative Appals Tribunal.
At section 5(3) it states:
This Direction directs delegates with respect to the performance of functions and exercise of powers under section 47 of the Act and section 51 of the Act, when determining the order for considering and disposing of Family visa applications.” (emphasis added)
Section 6 of the Direction defines “Family visa” to include both Partner (Migrant) (Class BC) and Partner (Provisional) (Class UF). These are the two classes of visa referred to in relation to Mr Nambiraj’s wife’s visa application in the Respondent’s advice to the Tribunal quoted above. Both Spouse (Migrant) and Spouse (Provisional) are also included in the definition.
At section 8 “Order for considering and disposing of Family visa applications” it states”
(1) Subject to subsection 9, paragraphs (a) to (g) set out the priority for considering and disposing of Family visa application, with paragraph (a) being the highest priority and paragraph (g) being the lowest priority.
Paragraph (g) in this list – the lowest priority – is as follows:
Applications in which the applicant’s sponsor (or proposed sponsor) is a person who entered Australia as an illegal Maritime Arrival and holds a permanent visa
It thus appears that, while the Respondent’s advice to the Tribunal is correct on its face – Mr Nambiraj does not need to be a citizen to sponsor his wife, it fails to paint the full picture. He may indeed sponsor his wife in his current status but that application will be dealt with as the lowest possible priority at the very end of what is no doubt a lengthy queue.
Consideration of this matter per se does not impact upon any decision the Tribunal has to make in relation to assessment of good character, but to the extent that it impacts upon Mr Nambiraj’s actions and behaviour and informs the Tribunal about his motivations, there appears no reason not to take it into account in that context.
Subsequent to the hearing, the Respondent was given the opportunity to comment on Mr Sinnarajah’s submission and interpretation. They chose not to.
CONCLUSIONS
Clearly Mr Nambiraj provided answers on his Citizenship Application Form which were inaccurate and misleading. The extent to which this was a deliberate and wilful attempt to mislead cannot be established with any absolute certainty.
Equally Mr Nambiraj’s driving record, although it falls at the “lower” range of unacceptability, is unsatisfactory and is marked by a willingness to disregard the law, especially under pressure from third parties. Both these matters weigh against the applicant.
In the other side of the balance I am persuaded that Mr Nambiraj has undertaken genuine steps to promote his own rehabilitation both in terms of dealing with alcohol issues and with severing his links with undesirable company.
I believe that he has started on a positive path with his relocation to Brisbane and his engagement with the Church there.
I have no doubt that his situation would improve further were he to be able to be reunited with his wife, provided she is otherwise eligible for sponsorship and meets other necessary tests/requirements, in a timely fashion. This reunification cannot take place in Sri Lanka and is thus only possible in Australia or in some third country of which neither Mr Nambiraj nor his wife is a citizen with full citizenship rights.
I have been drawn back to the two references supplied by Reverend Dr John D Jegasothy and Rev Fr Pancras Jordan both of which place considerable emphasis on the impact on Mr Nambiraj of the experiences he suffered as a result of the civil war conflict in Sri Lanka; his separation from his wife and his commitment to on-going counselling, especially in relation to his problems with alcohol consumption.[29]
[29] T document at 20 and Applicant’s Statement of Facts, Issues and Contentions respectively.
In doing so, I take note of the caution urged upon me by the Respondent at the hearing and that section of Chapter 11 of the Citizenship Policy under the heading “References”.[30] Nevertheless, even on the tests suggested within that section, I feel on safe ground in having regard to the references in question which I believe are genuine and suggestive of a way forward for Mr Nambiraj.
[30] Reproduced at Tribunal documents page 94
To this I would add concerns about Mr Nambiraj’s on-going employment situation and prospects related to the consequences of the stabbing incident and the on-going physical and psychological effects arising therefrom.
In the final balance, I have to take into account factors weighing against Mr Nambiraj, namely his failure to complete his citizenship form accurately and honestly and his not altogether satisfactory driving record. Factor weighing in his favour are that he has sought to address his alcohol and bad company issues by relocating to Queensland and trying to establish a new social environment; his contact and occasional work with the local Church authorities and his completion of the remedial driving programme.
My final conclusion in the matter is that the factors weighing in Mr Nambiraj’s favour are greater than those against and therefore I find, on balance and for the purposes of s 21 of the Citizenship Act that Mr Nambiraj is a person of good character.
I note that both parties advised me that should the Tribunal come to such a decision the preferred course of action which they advanced was that the matter should be remitted for reconsideration by the Department. I agree this is the correct and preferred decision to make in this instance.
DECISION
Under the provisions of section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) I set aside the decision under review and remit it with the direction that it be reconsidered in the light of the Tribunal’s findings above.

I certify that the preceding 88 (eighty -eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

............................[sgd]............................................
Associate
Dated: 9 March 2018

Date of hearing: 26 February 2018

Date final submissions received: 28 February 2018

Counsel for the Applicant: Mr G Foster

Solicitors for the Applicant: Mr s Sinnarajah

Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore

Date of hearing:	26 February 2018
Date final submissions received:	28 February 2018
Counsel for the Applicant:	Mr G Foster
Solicitors for the Applicant:	Mr s Sinnarajah
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore