NJML and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 4653

NJML and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4653 (10 November 2020)

Division:GENERAL DIVISION

File Number:          2020/2728

Re:NJML  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:10 November 2020  

Place:Melbourne

The Tribunal affirms the decision under review.

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

Dr Stewart Fenwick, Senior Member

Catchwords

CITIZENSHIP – refusal to approve Australian citizenship by conferral – whether the applicant is of good character – seriousness of offending – whether sufficient time has elapsed since offending – decision under review affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Christopher Alfred Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory [1994] ACTSC 101
David John Cawdell Irving v Minister of Immigration, Local Government and Ethnic Affairs [1996] FCA 1660
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

In Re Davis (1947) 75 CLR 409

Secondary Materials

Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

10 November 2020

BACKGROUND

1. The Applicant, NJML, applied to the Tribunal on 8 May 2020 for review of a decision of a delegate of the Respondent Minister on 6 May 2020. In this decision the delegate refused to grant NJML Australian citizenship by conferral on the basis that he was not of good character.[1]

   [1] T2.

2. NJML was born in India in 1989 and maintains Indian citizenship.[2] Between 2013 and 2015 he held different categories of student visa before the grant of a Skilled independent visa (subclass 189) on 9 March 2018, a form of permanent residence visa.[3] He applied for Australian citizenship by conferral on 5 August 2019.[4]

   [2] T6, pp 102, 122.

   [3] T2, p 8.

   [4] T6, T7.

3. NJML was given the opportunity to make submissions with respect to his criminal offending.[5] The offence in question was a charge of sexual assault which was heard in the Melbourne Magistrates’ Court on 23 May 2019.[6] The offence took place in the course of NJML’s work as a taxi driver and involved the non-consensual touching of a passenger’s breast.[7]  NJML was found guilty, with no conviction recorded and a fine of $1500 imposed.[8]

   [5] T9.

   [6] T6, p 121.

   [7] Exhibit A1.

   [8] T6, p 121.

4. NJML made submissions to the Department of Home Affairs with respect to his offending[9] and ultimately an adverse decision was made.[10] The decision was made on the basis that the offence should be considered significant, and that, notwithstanding character references in his favour, a reasonable amount of time had not yet passed since the offending to establish a pattern of good behaviour, and so justify a finding of good character.[11]

   [9] T10.

   [10] T2.

   [11] T2, pp 10-12.

5. At the hearing NJML represented himself and called several character witnesses. A Hindi interpreter was present, although  most of the hearing was conducted without his assistance. NJML lodged a number of documents with the Tribunal, several of which were received in evidence at the hearing, and some of which were included in material lodged on behalf of the Respondent. NJML lodged:

   (a)     a transcript of the Magistrates’ Court hearing (Exhibit A1);

   (b)     an email dated 2 October 2020 responding to the Respondent’s Statement of Facts Issues and Contentions (SFIC) (Exhibit A2);

   (c)     a submission on his behalf to Commercial Passenger Vehicles Victoria (CPVV) regarding driver accreditation, dated 19 July 2019;

   (d)     a Notice of Decision regarding Disciplinary Action from CPVV dated 31 July 2019 and a letter from CPVV confirming compliance with conditions imposed on his taxi driver accreditation dated 16 January 2020;

   (e)     letters from his psychologist Stephen Brown to CPVV, dated 23 December 2019, and to the Department of Home Affairs, dated 16 April 2020;

   (f)      Statutory Declarations by:

   (i)       Mr M and Ms N dated 30 April 2020 (Exhibits A3 and A5);

   (ii)      Mr J, dated 27 August 2020 (Exhibit A4); and

   (iii)     Mr Q, dated 27 August 2020;

   (g)character references from:

   (i)       Mr K, dated 3 September 2019; and

   (ii)      Mr Z, signed 21 August 2019.

6. In addition to its SFIC the Respondent lodged two bundles of documents under section 37 of the Administrative Appeals Tribunal Act 1975 totalling 374 pages (‘T’ documents and Supplementary T documents, or ‘ST’). An audio recording of the proceeding at the Melbourne Magistrates’ Court was also lodged with the Tribunal.

7. Further written submissions were lodged after the hearing. These were prepared following a request from the Respondent’s representative to correct aspects of the Magistrates’ Court transcript lodged by NJML, and due to issues said to arise with respect to some of the Statutory Declarations lodged by the Applicant. Accordingly, the Respondent lodged a submission dated 22 October 2020, and NJML lodged submissions dated 22 October and 23 October 2020.

   LEGISLATION

8. Section 21 of the Australian Citizenship Act 2007 (the Act) provides that a person may apply to have citizenship conferred and establishes certain eligibility requirements.

9. According to s 21(2)(h) of the Act, at the time a decision to confer citizenship is made, the person must be of good character. The term ‘good character’ is not defined in the legislation and this is the sole provision of relevance to this matter.

10. There are several authorities which provide guidance on how the term ‘good character’ may be understood. In the decision of BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 (BOY19), it was observed (at [87]) that: ‘good character’ refers to a person’s enduring moral qualities; the expression does not have a fixed and precise content; and, it necessarily imports into the decision-making process a discretionary value judgment informed by the subject matter, scope and purpose of the Act.

11. In Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 117 FLR 455 (Clearihan), reputation and enduring moral qualities were distinguished, with both terms being used to illustrate, respectively, the meaning of the two parts of the specific expression ‘good fame and character’ (at [15]). The Court in Clearihan cited then Justice Dixon in In Re Davis (1947) 75 CLR 409 (at p 420) as the source for this clarifying terminology, with reference to the same phrase. Both cases arose in relation to qualification for registration in a trade or profession.

12. The Court also said in Clearihan (at [23]) that ‘[i]t is a matter of common experience that a person’s character is capable of development over time’. That is, individuals are capable of learning from errors and of reform, and this notion informs the process of criminal sentencing. A similar statement with respect to the possibility of reform following criminal conviction was made by Lee J in David John Cawdell Irving v Minister of Immigration, Local Government and Ethnic Affairs [1996] FCA 1660, at [19].

13. I include these additional references from the authorities because the use of the word ‘enduring’ might otherwise be taken to indicate some idea of permanence with respect to a person’s character. The notion of time is engaged if only because, as noted above, it formed part of the reasoning in the decision under review. It also arises in the Citizenship Policy (below). It is well established that government policy is, ordinarily, an appropriate reference point when arriving at the correct and preferable decision, particularly when there are no specified statutory criteria.[12]

    [12] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

14. To return to the context of the Act as it informs the interpretation of ‘good character’, the Preamble states that citizenship represents a ‘common bond, involving reciprocal rights and obligations’. It was noted in BOY19 (at [53]) that the Preamble identifies certain qualities including diversity, democracy and liberty, which help to inform the interpretation of character; and the Preamble also identifies the obligation to uphold and respect the laws of Australia.

15. The Citizenship Policy adopts the expression ‘enduring moral qualities’ and states in Chapter 11 that it encompasses:

    ·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.[13]

    [13] T4, p 53.

16. The policy goes on to state that an applicant for citizenship by conferral who is of good character would exhibit certain characteristics. In a very abbreviated form, this list includes:

    ·respect and abide by the law in Australia …

    ·be truthful and not practice deception or fraud in their dealings with the Australian Government or other governments and organisations …

    ·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct …[14]

    [14] T4, p 55.

17. The policy states further that sexual assault is an example of a form of ‘very significant offence’ and that for such offences the passage of time required to demonstrate good character ‘would be much longer, potentially over a period of many years’.[15] It states also that the nature of the significant offence is more relevant to this inquiry than the passage of time alone.[16]

    EVIDENCE

    [15] T4, p 58.

    [16] Ibid.

    NJML

18. In his evidence at the hearing, NJML confirmed that in addition to undertaking studies in Australia he performed a range of different jobs prior to obtaining a taxi licence in 2016. He acknowledged that his registration was suspended following the offence. NJML was unemployed at the time of the hearing, but stated that once he passed a required medical clearance, he intended to recommence driving a taxi.

19. NJML accepted that he had been driving for approximately 18 months at the time of the offence. He stated that he started driving part time and then began driving full time, five days a week.

20. In relation to the offending NJML agreed that it took place on 12 January 2018,  during a taxi journey. NJML stated that he picked up three passengers in the city and the female victim (‘Ms A’) sat in the front seat. He had a friendly conversation with her and when she experienced hiccups offered her his water to drink. On dropping the passengers off NJML stated that he asked Ms A to fill up the water bottle, which he said he wanted to continue using during the rest of his shift.

21. When Ms A returned with the water bottle, NJML stated he was out of the taxi at the curb. NJML gave evidence that he was interested in her and that feeling was mutual. Ms A took his mobile phone and added a friend request on Facebook and they had a conversation. NJML stated that he asked if she wanted to ‘hook up’ and Ms A responded that she was not interested in anything sexual on a first meeting.

22. NJML gave evidence that he then asked Ms A for a hug. He then stated that he ‘might have’ touched her breast and immediately moved away, and that this was a ‘mistake’. NJML stated he immediately apologised and stated that he sent a message the next day, something which ended up costing him a lot. NJML also stated that he should have apologised properly, explaining that while he was good at spoken English, he was not good at formal written English. In his evidence NJML stated that Ms A went away without saying anything. She did not run and he stayed for five to ten minutes before departing.

23. NJML was taken to portions of his police record of interview which occurred on 27 February 2018.[17]

    He stated the reason why he initially could not recall Ms A’s name six weeks after the offence was that he was shocked as it was his first police interview. Asked why he stated in the interview that he left after the incident, NJML stated that the interview was a long time ago and he was stressed. He accepted that he did not refer to the request for a hug until sometime into the interview, stating that the police were not ‘up front’ about the reason for the interview and did not tell him what it was about.

    [17] ST13, pp 250-339.

24. I put to NJML that in the police interview and at court he denied that he touched Ms A’s breast. NJML responded that he pleaded not guilty as he was not sure whether the touch happened. I asked NJML to confirm Ms A’s demeanour after the hug and he stated that she ‘went quietly’ and then stated that it then appeared she was unhappy. He stated this was because ‘maybe I touched her inappropriately’. NJML also stated at this point that ‘I was emotionally attached’.

25. Asked to explain why he said he ‘may’ have touched Ms A’s breast NJML stated it was ‘50/50’, and that he knew he had done something wrong. I asked for the assistance of the interpreter to clarify NJML’s meaning and the Applicant repeated that he was not sure whether he touched her on the breast or not. When reminded that in court he denied touching Ms A breast, NJML stated ‘I accept I was not sure but now accept that I did touch her’. Asked to confirm whether this answer meant that NJML actually knew that he touched her or not and NJML replied he ‘did not want to talk, I want to accept this thing’.

26. NJML repeated that he stayed for about ten minutes after the incident as he wanted to talk to Ms A face-to-face, because he was not sure what had happened. Asked to confirm the circumstances of the hug, NJML stated that they hugged face-to-face with his hands under her shoulders near her chest, and his hands were on Ms A’s back. I pointed out to NJML that this contradicted Ms A’s description of the hug which she described as being ‘side-on’, however he affirmed his description.

27. With respect to the impact on Ms A, NJML stated that he definitely did wrong to her and understood that the incident had had an impact on her confidence and social activity. NJML stated that he knew that sexual assault was a ‘big thing’ and ‘I am not that guy’.

28. NJML was asked why he submitted in writing that the police were biased against him.[18] NJML responded that he did not believe this, but remarked that his lawyer told him that it was a police decision to bring charges, not the wish of Ms A. However, NJML also stated that he considered the police could have given him a warning, which was something a friend of his had experienced following a traffic offence.

    [18] Exhibit A2.

29. NJML agreed that sexual assault was not a minor offence, but stated that it was a ‘two-second thing’ and he realised his mistake. He stated the Magistrate was fair but lenient and that he received a fine and no conviction recorded. NJML acknowledged that he had undertaken counselling with a psychologist because he had experienced anxiety and depression after the suspension of his taxi licence.

30. NJML stated that his offending was addressed in early sessions with the psychologist and that he helped him ‘get over the incident’. NJML stated he wishes to pursue his citizenship as his father and mother have been waiting to spend time here, and he might apply for them to obtain permanent residency. His parents are aware of his offending. NJML stated further that he had been in discussions for nearly a year with his family and a woman, for them to become engaged. He hoped to travel to India to do so when he is able.

31. Taken to character references lodged with the Tribunal, NJML was specifically asked whether he wrote or reviewed those that appeared to contain similar wording and he denied doing so.

    Character witnesses

32. Mr M confirmed that he provided a Statutory Declaration dated 30 April 2020 (Exhibit A3). In this document he states:

    (a)NJML is honest, trustworthy and was respectful and courteous when they worked together in a Telstra business centre;

    (b)he understands the nature of the offending behaviour and criminal charge, which he found a great shock;

    (c)NJML has discussed with him the harm to the victim and Mr M believes he is truly sorry and that he shows contrition and remorse.

33. Mr M stated in evidence at the hearing that he discussed the document over the telephone with NJML and it was drafted by his wife. They do not have a printer at home and NJML brought a copy to Mr M’s home where he read and signed it. He agreed that it was not signed before the witness as described in the Statutory Declaration. Mr M stated his belief that his wife signed her Statutory Declaration before the witness, and not at his home.

34. Asked about the harm arising from the incident, Mr M first responded that NJML needed psychological help. He then acknowledged in response to a question that NJML was sorry for the harm caused to the victim.

35. Mr J stated that he provided a Statutory Declaration dated 27 August 2020 (Exhibit A4). He stated that this document was signed at his home and then taken to the witness for completion because he does not have a car and could not travel out due to COVID-19 restrictions. In this document Mr J states:

    (a)he met NJML through friends at the mosque in discussions about jobs;

    (b)he has invited NJML to dine at his house and they have shopped together and he considers him a person with good character and behaviour;

    (c)that he understands the nature of the offending, which shocked and upset him.

36. In his evidence Mr J stated that he thought NJML first informed him about the offending in mid-2019. He was upset and shocked because he considered the behaviour inconsistent with their religious beliefs and the way their community treat women. Mr J also stated the behaviour did not match with what he knew of NJML’s character.

37. Mr Q stated that he provided a Statutory Declaration dated 27 August 2020 (ST14, p 360). He stated that he wrote the document and affirmed it before the witness as described in the Statutory Declaration. In the document he states:

    (a)he is a taxi operator and that he knows NJML as an employee who drives his taxi;

    (b)that he assisted NJML become registered to drive, that he found him to be truthful and trustworthy, and it was a great shock when he was informed by NJML about the offending;

    (c)he has invited NJML to his house on many occasions, and he plays with Mr Q’s children, and his trustworthiness was demonstrated many times when he returned goods left in the taxi by passengers.

38. In his evidence at the hearing Mr Q stated that he attended court with NJML. He confirmed that he previously lived with NJML for four years and that NJML drove taxis for him. Mr Q was unable to state for how long, but said that he could check payslips to confirm this. He agreed that NJML sometimes drove taxis for other operators.

39. Mr Q stated that he visited a lawyer with NJML after the incident and that NJML had told him that he accidentally had contact with the victim. He was shocked at this incident because it was not the behaviour he expected from NJML.

40. Ms N confirmed that she provided a letter of reference dated 16 August 2019 (T6, pp 134-135) and a Statutory Declaration dated 30 April 2020 (Exhibit A5). The contents of these documents are not materially different and in them she states:

    (a)she met NJML through her husband and always found him respectful and courteous, and the news of the offending was a great shock;

    (b)NJML visits her home and plays with her children and treats her with respect, and that he has asked her whether the offending will affect his suitability as a husband;

    (c)the offence has had a profound effect on his attitude, he shows much contrition and remorse, and he regrets the harm he has caused.

41. Ms N stated that whatever she stated in her evidence at the Magistrates’ Court was ‘pretty much the same’ as her reference for NJML. She stated with respect to any resemblance with other references provided that she ‘jotted’ hers together with her husband. Ms N affirmed her opinion that NJML regretted the incident and stated it was a sin. She also confirmed that she had discussed with him how to approach the matter with a future wife.

1. Mr K confirmed that he provided a letter of reference dated 3 September 2019 (T6,
   pp 137-138). He stated that he wrote the reference together with NJML. In the letter he states:

   (a)he met NJML both through the local prayer hall and through friends they had in common and that he has known him for over seven years;

   (b)he is the head of a study group at the mosque and confidently states that NJML is well known among his peers and community and is recognised as a person of honesty and integrity;

   (c)NJML is known for frequent voluntary work at the mosque and works on community initiatives;

   (d)he is aware of the criminal charges and considers NJML distressed and remorseful for his actions and that he now has better insight;

   (e)he is confident such an incident will not occur again.

2. In his evidence Mr K stated that he and NJML both have IT backgrounds; and Mr K stated that he helped the Applicant find new employment opportunities. He described NJML’s voluntary work as assisting with community parties and get-togethers at the mosque for new students; ‘he was there, and he comes when we ask him’. Mr K also stated that he knew the Applicant from playing cricket together.

3. Mr K stated that he attended court with NJML and that he was aware the incident had caused him to be depressed and experience problems with work. NJML told him that he ‘did one mistake’ and Mr K stated that ‘whatever he has done is not good’, stating that he felt uncomfortable talking about the incident. He stated that he felt like an older brother and NJML was ‘very shameful before me’. He was confident NJML would not repeat such behaviour.

   Reference from Psychologist

4. NJML’s treating psychologist Stephen Brown provided letters in support (T11, pp 165-166). Mr Brown states that he treated NJML for anxiety and depression and provided cognitive behavioural therapy. He states that NJML is ‘very remorseful for his past errors of judgment that contributed to his past offending’, has developed insight and is ‘highly unlikely’ to reoffend. Mr Brown also states that NJML is intending to marry and return with his bride. NJML is, in his opinion, unlikely to reoffend because of his youth and because he has:

   … much to contribute to Australia and Australian blood by absorbing Australian values which most closely align with the values of western civilization. It is on that basis that I anticipate that [NJML] will be a reliable, safe, predictable, law abiding citizen.

   Magistrates’ Court Proceeding

5. As noted above, I had available to me  a transcript, provided by the Applicant, and a recording, provided by the Respondent, of the Magistrates’ Court proceeding in NJML’s criminal matter. I set out briefly here my own summary of the sentencing remarks of the Magistrate based on listening to the recording of the proceeding:

   (a)NJML was found guilty of the charge;

   (b)the victim gave evidence of feeling uncomfortable but acceded to NJML’s request for a hug, and gave him a ‘partial hug’;

   (c)the Magistrate accepted that NJML grabbed the victim’s right breast for two to three seconds and that she ‘freaked out’ and ran back to her apartment;

   (d)the suggestion that the touching was either consensual or in some way only marginal contact was against the weight of the evidence;

   (e)the Magistrate had no reservations in accepting the evidence of those present on the night;

   (f)NJML’s messages to the victim the following day amounted to an admission of guilt;

   (g)there was no reason to doubt the character witnesses called on NJML’s behalf;

   (h)this was a ‘crime of passion’ where emotion led NJML to behave in a certain fashion that overrode the dictates of reason, and the good character evidence was of very little weight under the circumstances;

   (i)it was NJML’s right to contest the charge but he showed no remorse, the victim continued to be affected by the incident, and no weight should be given to the apologies offered the following day.

   SUBMISSIONS

6. The Respondent made the following submissions at the close of the hearing:

   (a)authorities, particularly BOY19 and the Citizenship Policy, emphasise that character is based on enduring moral qualities, requires not being involved in unlawful sexual activity, and that this must be demonstrated over a prolonged period;

   (b)it was not clear from the Applicant’s evidence whether he in fact properly acknowledged the offence, he lacked candour and had not come to terms with his own conduct;

   (c)his evidence with respect to remaining at the scene for five to ten minutes was contradicted by his police record of interview and the evidence accepted by the Magistrate;

   (d)NJML gave evidence that he apologised and expressed remorse, and the character evidence coincides with his expression of regret;

   (e)however, this is not consistent with other evidence, with his efforts to minimise his behaviour, his statement that his conduct was not worthy of prosecution, and his repeated focus on the impact of the incident upon himself;

   (f)attendance on a psychologist and the subsequent references indicating that NJML is highly unlikely to reoffend indicate that he may have rehabilitated, but the opinion of the psychologist is brief and not well substantiated;

   (g)there were problematic aspects to the written references lodged by NJML, including close similarities in content and issues with the execution of statutory declarations;

   (h)the oral evidence of referees may be more reliable but that given by NJML’s employer was confusing and lacking in detail and, overall, little weight should be given to the supporting statements;

   (i)it was in NJML’s favour that his offending was limited to a single incident, and his references did indicate remorse and some engagement with his community;

   (j)it was against a finding of good character that he minimised his conduct, his evidence is not consistent with that in the criminal process, insufficient time has passed since the offending, and the offending conduct should not be tolerated particularly in the course of employment in a public role of taxi driving.

7. In the submission lodged after the hearing, the following further matters were put on behalf of the Respondent:

   (a)the victim’s evidence about the incident contradicts that given by NJML both before the Magistrate and the Tribunal with respect to the nature of the hug, and the statement that he remained at the location after the incident;

   (b)NJML’s evidence about the inappropriate touching appears to be continually evolving and this indicates he has been untruthful to either or both the Magistrates’ Court and Tribunal, which counts against his good character;

   (c)the Magistrate found that NJML was not at risk of reoffending but this does not demonstrate good character and, rather, his conduct was inconsistent with a person of good character;

   (d)it appears witnesses providing references on NJML’s behalf may have been unable to have statutory declarations properly executed due to COVID-19 restrictions;

   (e)measures have been adopted as a result of COVID-19 to facilitate the execution of statutory declarations but despite this, the material provided to the Tribunal was presented in a manner implicitly presenting the statements as validly executed;

   (f)inconsistent and contradictory accounts were provided as to the preparation and execution of supporting statements;

   (g)while this does not bear on the credibility of the witnesses, and it is accepted that there were extenuating circumstances, the process overall indicates NJML was not forthcoming, and had been potentially misleading with respect to the manner in which statements were obtained.

8. NJML made oral submissions at the hearing, and made further observations in writing, including in response to the Respondent’s SFIC. In summary, NJML submitted that:

   (a)he acknowledged the seriousness of a charge and conviction of sexual assault, is remorseful and has apologised to the victim;

   (b)he has no other history of offending and the offending in question was of a relatively low-level kind;

   (c)the police should have given him a warning rather than proceeding to charge him, and the victim originally only wanted to make a complaint to the authorities responsible for his taxi driving permit;

   (d)as a consequence of his offending and the legal process, he has experienced anxiety and depression and is now jobless due to COVID-19;

   (e)the suspension of his taxi driver registration is less to do with his character than his general wellbeing, as he is required now to pass a medical examination only;

   (f)he has been in Australia for seven and a half years and has obtained permanent residency and citizenship will help him move forward with his life;

   (g)he has a fiancée in India and will get married and bring his wife to Australia;

   (h)he will not reoffend and is no longer the same person;

   (i)his character references were developed in consultation because the writers are not native English speakers and any irregularity in the preparation of statutory declarations arose from COVID-19 restrictions.

9. In response to the submissions made on the Respondent’s behalf after the hearing, NJML made the following further submissions:

   (a)the Magistrate considered there not to be any real likelihood of reoffending of a sexual nature and therefore no need for participation in a program as part of a corrections order, which was not proposed;

   (b)the Magistrate made observations about previous good character;

   (c)COVID-19 restrictions prevented the proper witnessing of statements, but his witnesses stand by their content and the declarations and oral evidence are true;

   (d)while not accusing the Minister, ‘[t]hey always see the negative points about me, they have already made up the decision to reject my application by any cause’;

   (e)how much time is required to demonstrate good character? His application was made in August 2019 and if a further application is made ‘I have to wait another 5 years to be an Australian citizen’;

   (f)it is close to three years since the incident ‘and if you look at my character, this is the only mistake I have done in my whole life for that I am remorseful and never ever do it again’;

   (g)job offers are available which require citizenship and NJML wants a job in his profession to become an entrepreneur and bring his family to Australia; ‘[g]etting Citizenship now will immensely help me in moving forward with my life’.

   CONSIDERATIONS

10. The sole issue for consideration in this matter  is whether NJML is of good character, as required by s 21(2)(h) of the Act.

11. I accept that the most specific guide to understanding what is meant by good character is ‘enduring moral character’. As noted, there is authority for the view that enduring is not to be understood as in some way a permanent state of affairs. It is appropriate therefore to take into account the fact, or prospect, of personal reform. The question which arises is, essentially, what is a reasonable amount of time in which to observe such reform.

12. Before addressing this issue further, there are important preliminary considerations. It has been submitted that the occurrence of the offending in NJML’s case demonstrates that he is not of good character. This submission is bolstered by reference to the Citizenship Policy.

13. I accept that sexual assault is a very serious category of criminal offence. NJML was found guilty of this offence. However, there was no conviction recorded and a fine was imposed. I consider that this outcome demonstrates that the nature and extent of the offending was very confined in scope, and this  is apparent from the remarks of the Magistrate.

14. Nonetheless, there are some important dimensions of the offence and NJML’s engagement with the legal process which merit consideration. The offence occurred in the course of his professional duties as a taxi driver. The conduct therefore demonstrates a breach of the trust inherent in the performance of this public role; and I consider that this, accordingly, speaks against his character.

15. As noted by the Magistrate, NJML contested the charge, and showed, at that time, no remorse. The Magistrate also found that his conduct the following day amounted to an admission of guilt. Indeed, the finding that it was a ‘crime of passion’ indicates that NJML knowingly engaged in the inappropriate touching or, at the least, that he was complicit in bringing about the circumstances of the offending.

16. I consider the submissions made on the Respondent’s behalf about the quality of NJML’s evidence with respect to the offending to be correct. That is, his evidence is at best confusing, and, at worse, unreliable. It would appear that NJML now shows some insight into his conduct. He appears now to acknowledge his complicity and, possibly, that the incident was motivated by desire.

17. Were it not for the way NJML had responded to the criminal charge until this point, his apparent acknowledgment of the nature and consequences of his conduct might speak in his favour. However, I consider that the evidence overall, and NJML’s oral evidence at the hearing, demonstrate a strong tendency to minimise the significance of the offending. I accept that he has expressed remorse and acknowledged the seriousness of sexual assault. I do not consider these expressions to be sufficient to overcome the stronger impression that he continues to have great difficulty in taking responsibility for his conduct.

18. In NJML’s favour there are a number of credible and sincere character referees. I accept that there are numerous similarities that render the references somewhat generic. I am not persuaded though that the content and circumstances of the execution of some of the written statements are sufficiently suspect to reduce their impact overall. It is to NJML’s credit that his witnesses attended the hearing to speak of his remorse and generally good character overall. There was uniform disappointment and surprise expressed at the fact that he broke the law, particularly in the way he did.

19. The relative strength of NJML’s character references and his own expression of remorse reflect favourably on his character. This is because they suggest that further offending is unlikely, and I accept that this was also a finding of the Magistrate. This is also the view of his psychologist. While this might be interpreted as suggesting that no further time is required to elapse before a finding of good character can be made, I must also balance this with the other factors noted above.

20. NJML, in his evidence and submissions, has placed a heavy emphasis on the impact of the offending upon himself and his personal plans. This appears to me to be at least part of the reason why he has sought to minimise his criminal conduct. I consider this factor to be significant, and to be an important consideration in deciding whether NJML is of good character. NJML is clearly anxious to obtain citizenship. However, it is of concern that in his eagerness to pursue this objective he remains limited in his capacity to take ownership of his past behaviour.

21. For this reason, I consider that insufficient time has passed since the offending for NJML to be judged to be of good character.

    DECISION

22. For the reasons given above, the Tribunal finds that NJML is not currently of good character within the meaning of s 21(2)(h) of the Act, and affirms the decision under review.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

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

Associate

Dated: 10 November 2020

Dates of hearing:	7 and 8 October 2020
The Applicant:	By video link
Advocate for the Respondent:	T Creedon
Solicitors for the Respondent:	Australian Government Solicitor