NBCS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2023] AATA 4499

NBCS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 4499 (1 November 2023)
Division: GENERAL DIVISION
File Number(s): 2022/4226
Re:NBCS
APPLICANT

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

DECISION

Tribunal:Senior Member Dr Linda Kirk
Date:1 November 2023
Place:Sydney

The decision under review is set aside and remitted with a direction that the Applicant is of good character, satisfying paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
...................................[SGD].....................................
Senior Member Dr Linda Kirk

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – delegate not satisfied the Applicant was of good character – paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – CPI 15 – criminal offending – violent offending – enduring moral qualities – passage of time – decision under review set aside
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
CASES

Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
SECONDARY MATERIALS

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (26 February 2021)
REASONS FOR DECISION

Senior Member Dr Linda Kirk
1 November 2023

NBCS (‘the Applicant’) is a national of Vietnam who was born in 1975.[1] He first arrived in Australia on 8 December 2010 as the holder of a Business Short Stay (Subclass 456) visa.[2]
[1] Section 37 T-Documents, T2, 10.
[2] Ibid, T3, 17.
On 28 April 2021, the Applicant lodged an application for Australian Citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’).[3]
[3] Ibid, T5, 69-105.
On 6 April 2022, the Applicant was invited by the Department of Home Affairs (‘the Department’) to comment on adverse information relating to his application.[4] The adverse information included a police check recording the Applicant’s two criminal convictions.
[4] Ibid, T8, 134-136.
The Applicant did not provide a response to the Department’s invitation to comment letter.
On 18 May 2022, a delegate of the Respondent refused the Applicant’s citizenship application (‘the Reviewable Decision’).[5] The delegate was not satisfied that the Applicant was of good character at the time of the decision as required by section 21(2)(h) of the Act.
[5] Ibid, T3, 15-24; T7, 109-111.
On 26 May 2022, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[6]
[6] Ibid, T2, 3-14.
The review application was heard in Sydney on 18 September 2023. The Applicant attended the Tribunal hearing in person and was represented. The following persons gave oral evidence and were cross-examined at the hearing:
- the Applicant
- LPM, the Applicant’s nephew
- Thanh Vu
- Phuong Vo
The following documents were before the Tribunal:
·Respondent’s Statement of Facts, Issues and Contentions dated 6 June 2023 (‘RSFIC’);
·Section 37 T-Documents (T1 – T9, pp. 1 – 140);
·Applicant’s Statement of Facts, Issues and Contentions undated (‘ASFIC’);
·Applicant’s Statement dated 9 April 2022;
·Statement by Thanh Vu dated 26 April 2022;
·Statement by Edward Le dated 25 April 2022;
·Statement by Phuong Vo dated 25 April 2022;
·Statement by Edward Le (undated);
·Statement by Minh Phuc Le (undated);
·Statement by Phuong Vo dated 21 September 2022;
·Applicant’s Statement dated 6 November 2022;
·Statement by Thu Cuc Ta dated 18 July 2023;
·Statement by Viet Khoa Phung dated 23 July 2023; and
Applicant’s Passenger Card (undated).The Tribunal has reviewed the evidence before it and refers to the relevant materials below.

LEGISLATIVE FRAMEWORK

The ‘good character’ test

The issue before the Tribunal is whether it is satisfied that the Applicant is of ‘good character’ in accordance with section 21(2)(h) of the Act which provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
Citizenship Policy Statement and Revised Citizenship Procedural Instructions
The Australian Citizenship Policy Statement (‘Policy Statement’)[7] and the Revised Citizenship Procedural Instructions (‘CPIs’)[8] guide decision-makers exercising powers and discharging functions under the Act.
[7] Australian Citizenship Policy Statement issued 27 November 2020.
[8] Revised Citizenship Procedural Instructions reissued 26 February 2021 – current version dated 14 August 2022.
Relevant to this review application is Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (‘CPI 15’). Paragraph 1 of CPI 15 states that decision makers ‘should not apply policy inflexibly and should consider the merits of each individual case’.
Paragraph 3.1 of CPI 15, under the heading ‘Procedural Instruction’, states:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
·consider any character issues that arise on the facts of a case;
·consider all relevant information;
·guard against bias;
·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
·be mindful that a person who may not have been of good character can become a person of good character;
·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.
The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case. This Instruction provides guidance to decision-makers but it cannot fetter any statutory discretion conferred by the Act.
Paragraph 3.3 of CPI 15 explains the meaning of ‘good character’ with reference to the judgment of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[9]
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 the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion … A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
[9] Paragraph 4.3 citing Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at 431-432.
Paragraph 3.3 also provides guidance as to the meaning of the term ‘enduring moral qualities’:[10]
The phrase ‘enduring moral qualities’ encompasses the following concepts:
·   characteristics which have endured over a long period of time;
·   distinguishing right from wrong; and
·   behaving in an ethical manner, conforming to the rules and values of Australian society.
[10] Ibid.
It emphasises that in assessing good character it is necessary to view an applicant’s circumstances holistically:
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Paragraph 4 of CPI 15 provides the characteristics that are generally expected to be exhibited by a person of ‘good character’:
4. An applicant who is of good character
An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
o   intentionally providing false personal information (such as fraudulent work experience or qualification documents) or
o   other material deception during visa and citizenship applications;
o   evading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
o   knowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
o   concealing criminal convictions;
o   fraud against the Commonwealth such as tax fraud or Centrelink fraud;
o   giving false names and/or addresses to police;
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.
Paragraph 12 of CPI 15 sets out a framework for the consideration of any criminal offences:
12. Offences
12.1 Were offences disclosed if the applicant has a criminal record?
The current citizenship application, previous citizenship applications, visa applications and passenger card declarations may also be checked for an acknowledgement of criminal convictions.
Decision-makers can only act on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct. With convictions by overseas courts it may be necessary to take account of the independence of the judiciary in the particular country.
The necessity to act on the basis that the conviction is correct will apply regardless of whether the applicant maintains his or her innocence. If the conviction or sentence was appealed, the decision-maker should take the outcome of the appeal into account, not the original finding or sentence, except insofar as the original finding or sentence remains relevant (for example, particular views expressed by the trial judge may be referred to with approval by an appeal court).
If the applicant has a criminal history, further police checks and, if relevant, an overseas penal check may be necessary.
If the applicant has committed an offence, was it serious offence? For example:
·crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death);
·war crimes, crimes against humanity, genocide;
·crimes against children;
·drug trafficking (including importation and supply);
·people smuggling;
·fraud (including identity fraud);
·harassment or stalking;
·terrorist activity;
·extortion;
·illegal pornography, including child pornography;
·breaches of immigration law, including those that resulted in removal or deportation from Australia or another country;
·offences incurring prison sentences of 12 months or more.
Cases involving a finding of not guilty by reason of mental impairment should be discussed with CICH prior to a decision being made.
Minor offences may include:
·shoplifting;
·some traffic offences that have been included in a criminal record. An ‘on the spot’ fine would usually have little weight in a character assessment, unless the applicant has a history of such fines. This disregard for the law may be relevant to the assessment of character;
·offences that lead to a finding of guilt but no conviction or sentence. In each Australian jurisdiction there are sentencing arrangements for summary offences (heard by a judge alone) where there is discretion not to record a conviction. A judge may take into account whether the offending is trivial, the antecedents of the offender, whether the chance of rehabilitation is high or it is otherwise appropriate to not record a conviction. Refer to CPI 33 – Prohibitions on approval.
Paragraph 12.2 of CPI 15 provides guidance to decision-makers in considering criminal convictions recorded against an applicant:
12.2 Assessing the relative seriousness of the offence
Consider the length of the sentence. Longer sentences carry more weight on a person’s character.
Are there any ongoing obligations such as a good behaviour bond?
Note: Subsection 24(6) of the Act prohibits citizenship being approved in such circumstances. Refer to CPI 33 – Prohibitions on approval.
Carefully consider sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing. Decision-makers can obtain sentencing information by contacting the Criminal Registrar of the relevant court. Parole reports may also contain useful information (parole reports may be on the s501 visa cancellation file, should such a file exist). In some cases, victim impact statements may be relevant.
It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, outlaw motorcycle gangs or youth gangs.
Consider whether there were victims of the offence?
If so, were the victims children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant?
Is there a pattern of criminal behaviour?
A pattern of behaviour, even of repeated minor offences over an extended period, shows a disregard for the law and may support a finding that the applicant is not of good character. Decision-makers should consider whether the offending has become more serious or frequent over time.
Was the offence pre-meditated?
Sentencing remarks or court transcripts may provide insight into whether or not the judge was of the view that the offence was pre-meditated. That is, the person planned the offence. Pre-meditated offences would usually incur a heavier sentence, and therefore be given more weight in the assessment of character.
Paragraph 14 of CPI 15 provides a framework for decision-makers in weighing information:
14. Weighing information
In addition to the general principles of good decision-making set out in CPI 17 – Decision-making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:
·characterise the nature of any offence or behaviour
·is the offence serious or minor?
·did the offence harm other people?
·who were victims?
·is there a pattern of behaviour?
·was it a one off incident?
·were there extenuating circumstances?
Consider any associations with people or organisations of concern.
Consider any mitigating circumstances:
·length of time since the offence was committed
·age at time of offence
·behaviour since completing prison sentence or obligations to court
·remorse regarding their offending behaviour
·community support (referee reports etc)
·changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.
Paragraph 14.1 of CPI 15 outlines ‘mitigating factors’ relevant to the assessment of good character:
14.1 Mitigating Factors
Could the applicant be of good character despite the adverse information?
The discussion below expands on the points made above. The discussion focuses on criminal offences, but the principles are also relevant to any general conduct that suggests that the applicant is not of good character.
What is the length of time since the offence and conviction?
There can be a long delay between offence and conviction. Each case should be assessed on its merits. Consider the seriousness of the offence, the nature of the offence, whether another person was harmed, and the rehabilitation process. In the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is now of good character. In some very serious cases, it may never be possible to be satisfied that the person is of good character.
Has the applicant accepted responsibility and shown remorse for their conduct?
How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond? There is no ‘rule of thumb’ that determines how much time must pass for a person to re-establish good character. Each case must be assessed on its merits.
What was the applicant’s age at the time the offence was committed?
If the applicant committed the offence at a young age, the offence may be given less weight. The person may have matured and gained greater respect for upholding the law, and criminal offences from that period of life may not be indicative of their current character. This will depend on the nature of the offending and any subsequent offences.
Were there any extenuating circumstances relating to the offence?
An offence committed as a result of duress or psychological disturbance (including disturbance caused by medications other than recreational drugs), may be given less weight. Any claims of mental illness should generally be supported by a report from a psychiatrist or psychologist. Decision-makers should discuss such cases with their supervisors and consult Citizenship Operations if necessary.
Is there any other evidence that the person is of good character?
Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character.
Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character.
It is open to decision-makers to contact individuals who have provided a referee report for the applicant.
Decision-makers should not attribute less weight to a character reference merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship, unless the text sets out that it is clearly written for another unrelated purpose.

Paragraph 14.2 of CPI 15 guides decision-makers in weighing up the evidence:
14.2 Weighing up the evidence
The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.
Decision-makers should consider the following matters:
·Would a person of good character behave the way the applicant did?
·What evidence is there to demonstrate that the applicant has upheld and obeyed the law?
·Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?
·Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?
·Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?
·Are there any other factors that are relevant to an assessment of the applicant’s character?
…
A decision-maker needs to look holistically at an applicant’s behaviour over time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.
If a person has committed a serious offence (such as murder, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the period would be much longer, potentially over a period of many years. Depending on the offending and the circumstances, it may be extremely difficult for a decision-maker to be satisfied that a person is of good character, even after the passage of many years.
Paragraph 14.2 refers to Tribunal’s decision in Prasad and Minister for Immigration and Ethnic Affairs where it stated: [11]
a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
[11] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7].
ISSUE FOR DETERMINATION
The sole issue for determination by the Tribunal is whether the Applicant satisfies the ‘good character’ requirements of section 21(2)(h) of the Act.
EVIDENCE BEFORE THE TRIBUNAL
Migration to and early years in Australia
The Applicant migrated to Australia in 2010 and settled in Sydney. At the end of 2016 he relocated to Tasmania and opened a Vietnamese restaurant.[12] He worked long hours from six o’clock in the morning until nine or ten o’clock at night, seven days a week.[13] He employed staff who worked with him in the restaurant, including students.
[12] Transcript of proceedings, 18 September 2023, 5.
[13]ibid.
In 2020, the Applicant and his family returned to live in Sydney.[14] He obtained employment as a handyman with the son of a friend.[15]
[14] Transcript of proceedings, 18 September 2023, 5.
[15]Ibid, 8.
Family
The Applicant is married to his wife, TL. He has five children, being two daughters who reside in Vietnam with their mother, and three sons with TL.[16] Their eldest son, EL1, is not the Applicant’s biological child, but he has raised him as his own since he was three years old.[17]
[16]Ibid, 5.
[17]Ibid, 6.
In 2018, the Applicant visited Vietnam with his family. The Applicant’s younger brother has a son, LPM, who at the time of their visit was aged 11 years. In his statement dated 9 April 2022, the Applicant described the circumstances that led to him arranging for his nephew, LPM, to come to Australia and to reside with him and his family:[18]
I have a nephew (my younger brother’s son), his name is [LPM], born in 2007. He now lives with my brother in Hanoi, Vietnam (the reason being his parents are divorced).
At the start of 2018, my wife and I went back to Vietnam to visit our family and we also saw my nephew. I recognised that his dad was very busy with work and often he was not home, and his mother was not around. Apart from being at school, when he was home, he was by himself. He played a lot of games and had no contact with other people. We thought that if this continued, it would affect his psychological health, so we discussed with him and his parents about allowing him to come to Australia to study. The hope was for him to access an advanced education system, and he will be less lonely when in Australia because he will have his cousins (my children) who are of similar age to play and study with.
Based on that, at the beginning of August 2018, my nephew came to Australia under a student visa, and he came to live with our family.
Authorised by his parents, we took on the responsibility of caring and supervising him as if he was my own son …
[18]Applicant’s statement dated 9 April 2022, 1.
The Applicant described his nephew’s behaviour at home and school which caused concern to him and his wife:[19]
However, while living and studying in Australia [LPM] displayed many faults and weaknesses such as he was not communicating with others, he had the tendencies to use violence to deal with issues he had with other students at school and with his cousins; he did not focus on his studies and often did not complete all tasks assigned to him. My wife and I often received emails from the school and teachers about him breaking rules and about his faults at school. The worst thing of all was when he hit one of his classmates.
In addition, he had no minimum personal care skills for a year 8 student (he couldn’t even tie his school shoelaces or button up buttons on his sleeves.
While my wife and I have been extremely patient and dedicated lots of time to give him advice and support but there was no sign of positive results.
One of the bad habits he had was staying up late to play games online. He often played until 2 – 3 am, sometimes until 4am; even though we had agreed that he could stay up until 9pm at the latest, so that he could get up for school the following day.
Around June in 2021 due to COVID, he had to study online from home. He said he needed a laptop for school, so I had given him one I was using. However, he had used the laptop to play games every night and until very late. He even played during school hours even though I have reminded and advised him the laptop is for study purposes only and if he continue to use it to play games during school hours or at night then I will take back control of the laptop and he will not have free use of it.
[19]Applicant’s statement dated 9 April 2022, 1.
Criminal offending in Australia
On 25 June 2021, the Applicant was convicted in the Fairfield Local Court of Common assault (DV) -T2 and Destroy or damage property (DV) for which he was fined $800 and $400 respectively. He was also ordered to pay compensation of $700 in relation to the second offence.[20]
[20]Section 37 T-Documents, T6, 108.
In his statement dated 9 April 2022, the Applicant described the circumstances that led to his offending:[21]
One day in June 2021, when I got home from work, I found out that [LPM] was in his room playing games and his door was locked. I came to the room and reminded him that this has happened over and over, and he has reacted negatively, and his attitude was poor and the words he used were less than desirable. At that time, my mother walked into the room and started to take his side. My mother and I exchanged words and disagreed with each other about the situation and his attitude.
In a moment of anger and unable to control myself, and because of all that has happened over a long period of time, I slapped him in the face once. I also took the laptop and smashed it. He then used my mother’s phone and called the police. The police attended my house and asked me to come to the police station for questioning. A few weeks later I attended court where an AVO was issued and was fined $1,605.00 by the local court.
[21] Applicant’s statement dated 9 April 2022, 1-2.
Summons material produced by NSW Police on 26 July 2022 records LPM stated that the Applicant punched him with a closed fist to the left side of the face, causing redness and slight bruising to the side of his face. When questioned by police, the Applicant made admissions in relation to damaging the laptop, but he denied hitting or punching LPM.[22]
[22]RSFIC, [33].
The Applicant pleaded guilty to the offence and was unrepresented at the court proceedings which led to his conviction.[23] He told the Tribunal that he was unaware that he had a criminal record as a consequence of his guilty plea and payment of the fines and compensation.[24]
[23] Transcript of proceedings, 18 September 2023, 9.
[24]Ibid, 10.
On 25 June 2021, a final Apprehended Domestic Violence Order (ADVO) was made against the Applicant for the protection of LPM until 24 June 2022, which required that he not:
·assault, or threaten LPM
·stalk, harass or intimidate LPM
·intentionally or recklessly destroy or damage any property or harm an animal that belongs or is in possession of LPM.
In his statement dated 9 April 2022, the Applicant described the visit to his home by officers from the Department of Communities and Justice following the incident:[25]
Child Protection and Anti-family violence Services also came to my house to talk to and work with us including [LPM], myself and my mother. They have shown us ways to respond and how to deal with situations like what has happened. They also talked to the school, to my children to find out more about our family life and the truth about what has happened. They formed the view that we were a good family, there has never been any incidents of family violence before this, and my children live in a loving and caring environment and that I am a good and responsible father.
[25] Applicant’s statement 9 April 2022, 2.
The Applicant described the apology he and LPM made to each other and acknowledged the inappropriateness of his actions:[26]
I also had the opportunity to apologise to [LPM] and he also apologised for his shortcomings. We have sympathised with each other and have forgiven one another. For myself, I feel that although my hope was for my nephew to change and become a better person, the method I had used was not appropriate which resulted in my above actions.
[26]Ibid.
In his oral evidence, the Applicant told the Tribunal that several days following the incident, he and LPM talked and they apologised to each other. In August 2021, LPM returned to Vietnam.[27]
[27] Transcript of proceedings, 18 September 2023, 9.
Responsibility and remorse for offending
In his statement dated 6 November 2022, the Applicant stated:[28]
Immediately after the incident I felt remorse and ashamed of my behavior. I made a pledge to myself to control my own emotions so that an incident such as this will never happen again.
[28] Applicant’s Statutory Declaration dated 4 July 2023, [14]-[16], [18].
Rehabilitation
In his statement dated 6 November 2022, the Applicant described the steps he has taken to improve his parenting skills and control his emotions:
I registered in an online program called “Positive Parenting Progress (sic)” with Triple P to gain a better understanding of parenting skills and know how to respond better to my children.
I also regularly meet up with older members in different associations and communities to talk about my matter and to listen to their advice, so that I have a better understanding of my own feelings and able to control my emotions better.
At the same time I made a concerted effort to ensure that I have a thorough understanding of the law in Australia. Through this process I learnt that my behaviour is contrary to Australian values and it is against the law in Australia ...
During cross examination at the hearing, the Applicant was asked about his online study to improve his parenting skills. He told the Tribunal that he commenced the Positive Parenting course in early 2022, which is an online self-directed learning program. He said that has not yet completed the course, and a certificate is not issued following its completion.[29]
[29] Transcript, of proceedings, 18 September 2023, 15.
The Applicant also described the contributions he has made to the Australian community since the time of his offending:
Feeling remorseful I have tried to become a better person as outlined above. In recent times, I have done many good deeds in this country. Personally, since I arrived here to live and work, I have always paid all my taxes to contribute in the building and for the betterment of this nation. I have also participated in many charity activities to help those in difficult circumstances and support our communities. I would like to give a specific example of these – I recently helped my father-in-law [VTN] organized (sic) a successful fund raising music event held at Crystal Palace – Canley Heights on 04/11/2022 and we raised more than $30,000.00 for Liverpool City Hospital.
Department interview
During his interview with the Department on 15 March 2022, the Applicant revealed that he was subject to an ADVO. At the hearing, the Applicant told the Tribunal that he does not recall whether during the interview he was asked if he has a criminal record.[30]
[30] Transcript of proceedings, 18 September 2023, 12.
Incoming passenger card
The Applicant travelled to Vietnam in January and June 2023 to visit his father who was unwell at the time. On an incoming passenger card dated 1 February 2023, the Applicant wrote ‘No’ in response to the question ‘Do you have any criminal conviction/s?’.
At the hearing, the Applicant was asked why he did not declare his criminal convictions on the incoming passenger card. He stated:[31]
I was having wrong knowledge about the matter, the court matter. I told the (indistinct) the money to return. I didn’t know there I got a conviction from them.
[31]Ibid, 10.
Grant of Australian citizenship
The Applicant told the Tribunal the reasons why he wishes to become an Australian citizen:[32]
Australia is my second country. I love the country and I am thankful for the asylum so far then give me a chance to have my happiness with my family in Australia. I want to be part of the Australian population just to contribute to repay what Australia has given to me.
Witness evidence
[32]Ibid, 13.
LPM, Applicant’s nephew
LPM provided an undated written statement and gave oral evidence at the hearing. During cross-examination, LPM described the circumstances that led to the Applicant being charged with Destroy or damage property:
I think there was shouting, maybe. Something around alarms (indistinct). And then I hear something like smashing. He breaking (sic). And so I opened the door and I see both my phone and the computer was smashed up.
He also described the circumstances that led to the Applicant being charged with Common assault:[33]
This is a bit blurry. I just don’t remember that well. I’ve forgotten a maybe chuck (sic) of it. But I do remember, I think it was before – no, after. After the devices were smashed, he went in my room and, you know, just he punched me. Then I fell on the bed. That wasn’t really a punch. I think it was more like a slap. Then I fell on the bed.
[33]Ibid, 25.
LPM was asked whether he felt threatened during the incident, to which he replied:[34]
Not necessarily. I mean, yes, I was a bit upset. That’s for sure. And so, you know, I called the cops so he would calm down. It wasn’t really – yes, it wasn’t really that scared of physical harm. But come on, man. He always would – wouldn’t do something much to me. But, you know, calling the cops to make sure he had calmed down.
[34]Ibid, 26.
He was asked whether he sustained any physical injuries as a consequence of the assault. He stated:[35]
Okay, so this part was also really blurry so I’m not sure if it’s a punch or a slap. Because I can’t really feel now. I thought he flung, like, maybe something. It depends. But – yes. He’s – it depends. (Indistinct.) And so, you know, it was a – it was a slight touch, okay, I can’t – I can barely feel anything. And then, I fell off of the bed. I could barely feel anything.
[35]Ibid.
EL1, Applicant’s son
The Applicant’s eldest son, EL1, provided a written statement in support of the Applicant’s citizenship application. He outlined the reasons why he believes his father should be granted Australian citizenship:
To begin with, my dad is an incredibly hard working individual. When he owned a restaurant in Hobart … he would work gruelling hours from 7am to 11pm every day in order to provide for our family. Even after growing his restaurant our family moved away from Hobart and to Sydney, leaving his restaurant behind. However, my dad was undiscouraged (sic) by this and at the very first opportunity he had for a job he took it. This job opportunity was a handyman and he took it because he needed to begin making a living for our family as soon as possible. As a handyman my dad still worked those long gruelling hours, waking up just as the sun rose and coming home after it had set. The fact that my dad hardly ever takes days off and almost instantly finds a new job after moving to another state shows the absolute dedication my dad has to providing for his family as well as his astonishing work ethic. For this I believe my father should most definitely be an Australian citizen.
Furthermore, my dad is genuinely a gentle, caring and kind person. The incident involving my cousin, [LPM] was entirely a one off occurrence, a misunderstanding and was the only time in all my years of knowing my dad that I saw him act the way he did. The way he usually acts is very kind, caring and gentle, especially towards his children. He has a very gentle approach to parenting and an even more gentle personality, he would usually absolutely never resort to violence, my dad just isn't a violent person. My dad is the kind of person to help out a stranger he has never met just because it looked like they needed it. Once while he was driving me to the store he saw an old man collapse onto the sidewalk and he immediately pulled over to help the man up, making sure he was okay.
Lastly, my dad is a contributing Citizen who represents Australia's values perfectly. The restaurant I had mentioned earlier is a perfect example of how he contributes to Australia. By growing the restaurant, my dad was able to offer job opportunities to the people of Hobart, most of his employees actually being students who needed a job in order to live while studying. My dad also pays all of his taxes and more as a way to show his appreciation to the country of Australia for giving him such an amazing life. He especially knows how to be a good citizen as he has studied profusely for months in order to pass the citizenship test.
In conclusion, it would not be fair for my dad not to get an Australian citizenship due to a single one off incident that was all just a misunderstanding when he is usually a hard working dad who takes care of his family whilst also contributing to Australia. My dad works long hours and will immediately find a new job when we move suddenly. He is a very kind and caring individual who would help anyone in need, and he contributes plenty to Australia by providing employment and paying taxes. All these reasons here prove that my dad would be a valuable citizen to Australia and therefore should be an Australian citizen.
Thanh Vu
Mr Vu provided a statement in support of the Applicant’s citizenship application dated 26 April 2022 and gave oral evidence at the hearing. In his statement, he wrote that he is the Applicant’s accountant and he met him five years ago when he first prepared his tax return.[36] In his oral evidence, Mr Vu confirmed that since 2017 he has helped the Applicant to prepare his company and personal tax returns and he is up to date in the filing of these returns. He told the Tribunal he was ‘surprised’ when he learned about the Applicant’s offending because he is ‘not that kind of person’ and is ‘very polite’. He believes the Applicant would make a good Australian citizen ‘because he tries to do the right thing.’[37]
[36]Statement by Mr Thanh Vu, 26 April 2022.
[37] Transcript of proceedings, 18 September 2023, 19.
Phuong Vo

Mr Vo provided two statements in support of the Applicant’s citizenship application dated 25 April 2022 and 21 September 2022 and gave oral evidence at the hearing. In his statement, Mr Vo stated that he has known the Applicant as a friend for more than 10 years, and he is a ‘hard working … polite … trustworthy … respectable … and a family orientated person.’ [38] In his oral evidence, Mr Vo told the Tribunal that the Applicant works ‘very, very hard’ to earn money to support his family, pays tax, and is a ‘good resident.’[39] He said that the Applicant’s offending was a ‘one-off’ and he had ‘never see[n] him like that before. Never, ever.’[40]
[38]Statement by Mr Phuong Vo, 25 April 2022.
[39] Transcript of proceedings, 18 September 2023, 28.
[40]Ibid, 29.
Thu Cuc Ta
Mr Ta provided a statement in support of the Applicant’s citizenship application dated 19 July 2023. He stated that he is the Treasurer and member of the Nhan Ai Musical and Singing Association Incorporated, which was founded with the purpose of organising music and cultural activities for the Vietnamese community, and it raises funds to support members of the community who are in need. He confirmed that the Applicant is ‘a long-term collaborator of the association’ and has helped and supported it ‘a lot with the planning and managing the events.’ He also ‘has represented the association to call for contribution and donation from many organisations, firms and individuals …’ The Applicant’s ‘participation, support and contribution is very meaningful … and is crucial for [the association] to continue [its] operation and activities.’
Viet Khoa Phung
Mr Phung provided a statement in support of the Applicant’s citizenship application dated 23 July 2023. He stated that he is the Vice President of the Nhan Ai Musical and Singing Association Incorporated. He described the Applicant as ‘an enthusiastic and supportive volunteer’ who ‘has always been passionately contributing to the development of the community and … he plays a crucial role to [the] association in terms of organising performing and fund-raising events, as well as calling for … benefactors.’ The Applicant has also helped in organising and managing the association’s events, including an event on 4 November 2022 which raised $36,188 that was donated to the Liverpool Hospital. The Applicant ‘contribute[d] significantly’ to the success of this event.
CONSIDERATION AND REASONS
The sole issue for determination by the Tribunal is whether the Applicant satisfies the requirements of section 21(2)(h) of the Act which requires it to decide whether he is of ‘good character’.
The meaning of ‘good character’
The term ‘good character’ is not defined in the Act. The Full Court of the Federal Court has found the term is to be interpreted broadly:[41]
… Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion…
[41] Grass v Minister for Immigration and Border Protection [2015] FCAFC 44, [60].
There have been numerous Federal Court decisions on the meaning of ‘good character’ and the application of the good character test. The classic exposition of the meaning of this term is found in the Full Federal Court decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs (‘Irving’).[42] Lee J stated:[43]
Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion ... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character ... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
[42] (1996) 68 FCR 422.
[43] Ibid, [431]-[432].
The question of whether a person is or is not of ‘good character’ is primarily an issue of fact.[44] As Davies J remarked in Irving:[45]
The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.
[44] Irving v Minister for Immigration Local Government and Ethnic Affairs at [424] per Davies J (with whom Nicholson J concurred).
[45] Ibid, [427]-[428].
In Minister for Immigration and Ethnic Affairs v Baker, the Full Federal Court stated:[46]
The words “good character” in this section should, as Lee J pointed out in Irving (at 431-432), be understood as “a reference to the enduring moral qualities of a person”. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.
[46] (1997) 73 FCR 187 at [197].
In Fenn and Minister for Immigration and Multicultural Affairs,[47] Deputy President Breen discussed the character requirement for citizenship:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home … The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
[47] [2000] AATA 931, [8].
In determining whether it is satisfied that an applicant for citizenship is of ‘good character’, the Tribunal is ‘entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the [relevant] act’.[48]
[48] Drake v Minister for Immigration and Ethnic Affairs(1979) 46 FLR 409 at 420 per Bowen CJ and Deane J.
Paragraph 14.2 of CPI 15 refers to the decision in Prasad and Minister for Immigration and Ethnic Affairs,[49] in which the Tribunal explained:
a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
Is the Applicant of ‘good character’?
[49] [1994] AATA 326, [7].
Criminal offending
Paragraph 4 of CPI 15 outlines particular categories of offences which, by their nature, are considered more serious. Specifically, it recognises that an applicant of good character would not be violent, and not cause harm to others through their conduct. The Applicant has been convicted of two domestic violence related offences, the victim of which was a minor aged child. The Tribunal finds that the Applicant’s criminal behaviour is contrary to Australian societal values and that his offending is serious.
Mitigating factors
Acceptance of responsibility and remorse for conduct
Paragraph 14.1 of CPI 15 recognises the relevance of an applicant for citizenship accepting responsibility and showing remorse for their conduct to an assessment of ‘good character’. The evidence before the Tribunal is that the Applicant has shown remorse and has taken responsibility for his criminal offending. He pleaded guilty to the offences and willingly paid the fines and compensation that were imposed on him by the sentencing court.
Length of time elapsed since the offences were committed
Paragraph 14.1 of CPI 15 recognises that in the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is of good character.[50]
[50] Part 14.1, CPI 15.
The Tribunal notes that paragraph 14.1 of CPI 15 provides that in determining the period of the enduring moral qualities of an applicant, the nature of the offence is more relevant to whether or not the person is of good character than the period of time since the crime was committed. In Assafiri and Minister for Immigration and Border Protection, Senior Member Toohey stated that the passage of time since the applicant’s offending is not itself demonstrative of their ‘enduring moral qualities’:[51]
Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
[51] [2014] AATA 35, [67].
Relevant to the Tribunal’s assessment of whether a sufficient period of time has elapsed since the Applicant’s offending is his acceptance that his behaviour was wrong and that it had a negative impact on his nephew. He demonstrates insight into his offending and appreciates that domestic violence is unacceptable conduct and contrary to Australian societal values. That the Applicant has assumed full responsibility for his offending and appreciates its effect on his victim indicates that he has taken ownership of his criminal behaviour consistently with what would be done by a person of good character.
The Tribunal is satisfied that although a period of only three years has passed since the Applicant’s offences and despite the serious nature of his offending, his demonstrated ownership of his actions, acceptance of the criminal nature of his behaviour, and his recognition of its impact on his victim, are such that the Tribunal finds that this relatively short passage of this time is nevertheless sufficient for it to be satisfied that in relation to this criminal offending the Applicant has demonstrated the ‘enduring moral qualities’ associated with ‘good character’.
Behaviour since completing obligations to the court
Paragraph 14 of CPI 15 recognises the relevance of an applicant’s behaviour since completing any obligations to the court relevant to their convictions. Prior to his criminal offending in June 2021, the Applicant had no criminal record. In the more than three years since the two convictions were recorded, he has not been charged or convicted of any further offences. The fact that the Applicant has not been charged with any offences for a sustained period of time indicates that his efforts to better control his anger and emotions have been successful, which weighs in favour of a finding that he is a person of good character.
Changes in the Applicant’s life
Paragraph 14 of CPI 15 encourages decision-makers to have regard to any positive changes in the life of an applicant for citizenship since their offending.
The evidence before the Tribunal is that since he relocated to Sydney, the Applicant has been continuously employed as a handyman before and following his criminal offending. As well as providing financially for his family, the Applicant contributes to the upbringing and emotional development of his two biological children and his step-son, EL1, who he has raised as his own since he was a young child and provided him with a father figure and role model. In addition, the Applicant assumed responsibility for housing and raising his nephew LPM for a period of more than three years so that he could further his education in Australia. The Applicant is actively involved in the activities undertaken by the Nhan Ai Musical and Singing Association Incorporated which raises funds for members of the Vietnamese community in need, and has donated a large amount of money to the Liverpool Hospital. In relation to the behaviour that led to his criminal offending, the Applicant has committed to completing the online Triple P - Positive Parenting Program,[52] which he undertakes when he is not busy working or spending time with his children. This evidence demonstrates that the Applicant is a devoted father and hard-working man who has shown a commitment to helping the community and taking positive steps towards his personal growth and development. The Tribunal is satisfied that in the three years following his criminal offending, the Applicant has made positive changes to his life that demonstrate he has ‘enduring moral qualities’ associated with ‘good character’.
[52]Online program, research-backed | Positive parenting strategies | Triple P (triplep-parenting.net.au).
Other evidence demonstrating ‘good character’
The Applicant provided character references attesting to his commitment to hard work, providing for his family, paying his taxes, and contributing to the community. The Tribunal has placed some weight on these references, particularly those from officers of the Nhan Ai Musical and Singing Association, in assessing whether the Applicant is a person of good character. They support a finding that the Applicant is committed to contributing to the Vietnamese community and raising funds for those in need which show that he has ‘enduring moral qualities’ associated with ‘good character’
CONCLUSION
The grant of Australian citizenship is a privilege not bestowed lightly.[53] In determining whether the Applicant is of good character for the purposes of section 21(2)(h) of the Act, the Tribunal is required to reach an ‘affirmative belief’ that the Applicant is a person of good character.[54] There is sufficient evidence before the Tribunal for it to reach an affirmative belief that the Applicant is of good character. The Applicant’s offending was serious as it occurred in a domestic context and his victim was a minor aged child. However, there are mitigating factors which weigh in favour of a finding that the Applicant is of good character, including him working hard to provide for his family, his commitment to his children, involving himself in the activities of the Nhan Ai Musical and Singing Association, and taking positive steps to improve his parenting skills. Having regard to these factors together with the Applicant’s willingness to take full responsibility for his criminal behaviour, his demonstrated remorse, and his appreciation of the seriousness of his behaviour, and its impact on his victim, the Tribunal is satisfied that he is a person of good character.
[53] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].
[54] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574; (2019) 165 ALD 39, [55].
Having considered the Applicant’s circumstances and weighing the available evidence, the Tribunal is able to make a positive finding of ‘good character’ in relation to the Applicant. Accordingly, the Tribunal finds that the Applicant satisfies section 21(2)(h) of the Act.
DECISION
The decision under review is set aside and remitted with a direction that the Applicant is of good character, satisfying paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk

....................................[SGD]....................................
Associate
Dated: 1 November 2023

Date(s) of hearing:

18 September 2023

Solicitors for the Applicant:

A. Bye, Auslex Law Group

Solicitors for the Respondent:

J. Egger, Hunt & Hunt Lawyers

Date(s) of hearing:	18 September 2023
Solicitors for the Applicant:	A. Bye, Auslex Law Group
Solicitors for the Respondent:	J. Egger, Hunt & Hunt Lawyers