Peter and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 3224

Peter and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3224 (6 August 2024)
Division:GENERAL DIVISION
File Number(s): 2023/8489
Re:Michael Peter
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Henderson
Date:6 August 2024
Place:Perth

The decision of a delegate of the Respondent dated 19 October 2023, to refuse to grant the Applicant’s application for citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) is affirmed.
............[Sgd]........................................
Member Henderson
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship –Australian Citizenship Act 2007 s 21(2)(h) – whether Tribunal satisfied Applicant was of good character – Applicant is a citizen of South Sudan – Applicant’s offences include possessing a prohibited weapon, driving under the influence of alcohol and driving without a licence – Applicant provided false and misleading information on incoming passenger card and resident return visa application – Tribunal cannot satisfactorily ascertain Applicant is of good character – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 21(1), 21(2), 21(2)(a)-(g), 21(2)(h), 21(2)-(8), 24, 24(1A), 52(1)(b)
Administrative Appeals Tribunal Act 1975 (Cth) ss 43(1), 43(1)(c)
Road Traffic Act 1974 ss 49, 49(1), 59, 59(1)(b), 60B, 60B(4), 63
Road Traffic (Authorisation to Drive) Regulations 2014 ss 69D(1), 69D(2), 69F, 69L, 69M(1), 69O, 69Q
The Criminal Code ss 3, 59, 68
Weapons Act 1999 ss 6, 6(1)(b)
CASES
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Boy19 v Minister for Immigration & Border Protection [2019] FCA 574
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231 FCR 128
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; [1996] FCA 663
Minister for Home Affairs v G and Another [2019] FCAFC 79
SECONDARY MATERIALS
Australian Citizenship Policy [Policy Statement] (27 November 2020)
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
Member Henderson
6 August 2024
THE APPLICATION

The Applicant is a 35-year-old citizen of South Sudan, born 29 January 1989. He first arrived in Australia on 10 March 2005 at the age of 16 as the holder of a Refugee (subclass 200) visa. He is currently the holder of a Resident Return (subclass 155) visa granted on 1 February 2023 (Visa).
On 3 September 2021, the Applicant lodged an application for Australian citizenship by conferral. On 19 October 2023, a delegate of the Minister refused to grant the Applicant citizenship on the basis that the delegate was not satisfied that the Applicant was a person ‘of good character’ within the meaning of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).
The application for review is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (Tribunal) for review of a decision made under s 24 of the Act. The reviewable decision is the ultimate decision to refuse to approve a person becoming an Australian citizen (Reviewable Decision). An adverse decision in respect of the general eligibility criteria or the good character criterion is not itself amenable to review under s 52(1)(b).
For the purpose of reviewing the decision to refuse to approve a person becoming an Australian citizen, the Tribunal may exercise all the powers and discretions conferred on the Minister and may affirm, vary or set aside the decision under review pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Tribunal may remit the matter for reconsideration in accordance with directions or recommendations pursuant to s 43(1)(c).
ISSUE
Citizenship by conferral is dealt with pursuant to Subdivision B of Division 2 of Part 2 of the Act. It provides for an application to be made to the Minister for a person to be approved to become an Australian citizen where the statutory requirements as to eligibility are satisfied.
Eligibility for Australian citizenship is set out in sections 21(2)-(8) (eligibility criteria). Section 21(2) contains cumulative criteria as to ‘general eligibility’, including a requirement in s 21(2)(h) that the Minister be satisfied that the Applicant is of ‘good character’ at the time of the Minister’s decision on the application (the good character criterion).
In respect of the decision under review, the Minister was satisfied that the Applicant met the criteria in paragraphs 21(2)(a)-(g). The Minister was not satisfied that the Applicant met the criterion in s 21(2)(h); the good character criterion.
In this instance, there is no obvious basis to revisit the criteria of which the Minister was satisfied. The sole issue before the Tribunal is whether the Tribunal can be satisfied that the Applicant is of good character, pursuant to subsection 21(2)(h) of the Act.
BARRIERS TO SATISFACTION OF GOOD CHARACTER
The Minister submits that there are two broad reasons why the Tribunal should not be satisfied that the Applicant is a person of good character:
(a)The Applicant has a history of offending in Australia;[1] and
(b)The Applicant has provided false and misleading information to the Department on an incoming passenger card and his resident return visa application.[2]
[1] SFIC [25(a)].
[2] SFIC [25(b)].
History of offending
It is not in dispute between the parties that the Applicant has a documented history of offending in Australia. The dispute between the parties with respect to the Applicant’s offending history is the weight that the Tribunal should give to it in assessing the Applicant’s character.
In response to the question ‘Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?’, the Applicant marked ‘yes’ and stated, ‘traffic offences; spent conviction of carrying a prohibit weapon in 2007’.[3]
[3] R1, T4/25.
The Applicant’s court history compiled on 11 January 2024, records 13 driving related convictions and one spent conviction for possessed a prohibited weapon committed on 16 December 2007 (at which time the Applicant was 18 years old).[4]
[4] R2, TB6/89-90.
On 12 June 2023, the Department of Home Affairs invited the Applicant to comment on his Australian offences.[5]
[5] R1, T9.
In response the Applicant filed the following relevant evidence:
(a)statutory declarations dated 5 July 2023[6] and 19 August 2023[7];
(b)a reference from Moses Juach Bul dated 9 August 2023;[8] and
(c)a reference from Deng Malek Gak dated 14 August 2023.[9]
[6] R1, T10/80-81.
[7] R1, T12/87-88.
[8] R1, T12/85.
[9] R1, T12/86.
The Decision Record indicates that the Applicant’s offending history weighed heavily against the delegate being satisfied that the Applicant was a person of good character. The delegate considered the Applicant’s statutory declarations, references and other evidence on the Applicant’s file, but remained unsatisfied that the Applicant was a person of good character in light of his offending history.
The Applicant says that the Tribunal should give less weight to his offending history because of the elapse of time since his offending. He says that the Tribunal should make a finding of fact that he has ceased to drink alcohol on occasions when he is driving since his offending occurred, and that the Tribunal should find that this weighs in favour of satisfaction that he is now a person of good character.[10]
[10] R1, T2/8, Application for Review.
Provision of false or misleading information
At the date of the Decision Record the criminal convictions were the sole issue that the delegate raised with respect to the Applicant’s character. The Minister now submits that the Applicant has also provided false and misleading information to the Department on two separate occasions: an incoming passenger card and his application for a return visa.[11] The Minister further submits that the Applicant’s disclosure of “traffic offences” in his citizenship application does not comprise full disclosure, because the Applicant has been convicted of 13 driving related offences, including driving without a licence and driving whilst intoxicated.[12]
[11] SFIC [36]-[38]
[12] SFIC [39]-[40].
The Applicant disputes that he provided false information and disputes that he intended to mislead the Department by his answers. He says that he answered the actual question he was asked with the correct answer, and that he did not intend to mislead by his responses. He says that he understood that the Department was aware of and had access to his offending record in Australia and that he read the questions he was asked in light of this understanding.
The dispute between the Minister and the Applicant turns on the interpretation of the questions that the Applicant was asked, rather than being a dispute as to the facts that were correct at the time that the form was completed. In the course of the hearing the Minister put to the Applicant and the Tribunal that the questions asked required disclosure and/or detailed disclosure of the Applicant’s offending in Australia. The Applicant did not accept that proposition.
The Minister seeks a finding of fact that the Applicant has attempted to conceal criminal convictions from the Department.[13] It does not appear to be in dispute that it would weigh significantly against a finding that the Applicant is a person of good character, if it is determined that the Applicant attempted to conceal criminal convictions from the Department.
[13] SFIC [41].
EVIDENCE
The matter was heard in Perth on 17 July 2024. The Applicant was self-represented. The Respondent was represented by Ms Daphne Jones-Bolla of Sparke Helmore Lawyers. Both parties appeared in person.
The Tribunal received the following documents which it accepted into evidence:
(a)Applicant’s written submissions in reply dated 6 May 2024 (Exhibit A1);
(b)Respondent’s Section 37 T documents, labelled T1-T17, comprising 134 pages (Exhibit R1); and
(c)Respondent’s Tender Bundle, labelled TB1-TB8, comprising 144 pages (Exhibit R2).
The Tribunal heard oral testimony from the Applicant. He did not call any witnesses and the Tribunal has considered the weight that should be given to the written statements in that context.
The Respondent did not call any witnesses to speak to the documents provided, and the Tribunal has considered the weight that should be given to the documents contained in Exhibits R1 and R2 in that context.
Exhibit R2 contains at TB1-TB6 the documents returned on the Respondent’s summonses to Armadale, Fremantle, Midland and Perth Magistrates Court, as well as to the WA Department of Transport and the WA Police. The Applicant accepted during the hearing that the information contained in these documents appears to be correct, and accurately reflects his offending history.
Agreed offences
It is not disputed that the Applicant has been caught driving without a licence on seven occasions, been caught driving whilst intoxicated on five occasions, and has a further three road traffic violations for speeding and failing to stop before the line at signals. He has also received fines for travelling on public transport without a valid ticket on six occasions.[14]
[14] R2, TB4/31-33.
GOOD CHARACTER ASSESSMENT: PRINCIPLES
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application’.[15]
[15] Whether the Applicant is a person of good character at the time of the Minister’s decision on the application for citizenship is the only eligibility criterion in issue in these proceedings.
Section 24 of the Act provides:
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
…
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Accordingly, under s 24(1A) of the Act, the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application’, that being the requirement of
[16] See [18] above.
s 21(2)(h) of the Act.[16]
The expression ‘good character’ is not defined in the Act. There are no criteria contained in the Act by which the Minister is to consider what comprises good character, and it has been held that this is an indication that Parliament intended the term to be used in a broad way.[17] The words ‘good character’ are used in their ordinary sense.[18]
[17] Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231 FCR 128 [60].
[18] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431].
Matters that bear upon a person’s good character for the purposes of the Act are matters relevant to the obligations of citizenship as expressly or impliedly reflected in the Act, including its Preamble.[19]
[19] Boy19 v Minister for Immigration & Border Protection [2019] FCA 574 at [53].
The Preamble to the Act states that:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian Citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Guidance is set out in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship [Policy Statement], which came into force as of 27 November 2020 (the Policy).
As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[20]
[20]G at [57]-[62].
‘Good character’ is defined in chapter 10 of the Policy:[21]
“Good character” refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship …
…
In this context, “moral” does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
·     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.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that 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 their migration and citizenship processes.
[21] The Policy pp 136–7.
The Policy further provides that an Applicant of good character would, among other things:
·     respect and abide by the law in Australia and other countries
·     be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·     be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
·     providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
·     involvement in bogus marriage
·     concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
·     involvement in Centrelink or Australian Tax Office fraud
·     giving false names and/or addresses to police
·     not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·     not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·     not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·     not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·     not be the subject of any extradition order or other international arrest warrant
·     not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·     not be the subject of any verifiable information causing character doubts.
(Emphasis added.)
In Irving v Minister for Immigration Local Government & Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422 (Irving), the Full Court of the Federal Court of Australia considered the expression ‘good character’ in the context of a provision of the Migration Act 1958 empowering the Minister to refuse to grant a visa or entry permit in certain circumstances, including that the person is not of good character. Davies J opined that:
[t]he term “good character” is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. I another sense, it refers to the individual’s reputation or repute: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5…criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.[22]
[22] Irving pp 424–425.
That said, it is clear that the assessment of good character entails considering and weighing the person’s enduring moral qualities and not the good standing, fame or repute of the person in the community.[23]
[23] Irving p 84.
The relevant authorities and the Policy make it clear that:
(a)a person can fail to establish that they are of good character even if they have not been convicted of any criminal offences;[24] and
(b)it has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character.[25]
[24] See for example, Chapter 11 of the Policy, at page 147 (extracted at [15] above) and decisions extracted at [19] and [20] above.
[25] For example, Beyan and Minister for Immigration and Border Protection [2015] AATA 256.

As to the state of satisfaction required for “good character”:[26]
[54] Section 21(2)(h) requires the Minister to form a judgment as to whether he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite…Second, the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion….
[55] The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character…
(Emphasis added.)
[26]BOY19 v Minister for Immigration and Border Protection [2019] FCA 574.
As to referee reports (that is, character references), the Policy states:[27]
… [they] can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, or who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc., if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.
(Emphasis added.)
[27] The Policy p 155.
CONSIDERATION
The issue for review by the Tribunal is whether the Applicant is
of good character for the purposes of s 21(2)(h) of the Act.
Evidence of the Applicant’s good character
The Applicant had previously provided a certificate showing that he “successfully participated in the Multicultural Youth Leadership Program” from 12 to 15 April 2005.[28] This predates the Applicant’s most serious offending and carries little weight as to his present character.
[28] R1, T4/49.
The Applicant has provided character references from Moses Juach Bul and Deng Malek Gak.[29] The reference from Mr Bul is dated 9 August 2023. It states that the Applicant and Mr Bul were childhood friends in Kenya and that they have known each other for 10 years in Australia. Mr Bul describes the Applicant as ‘a hard working person, and also a highly self-motivated individual’. He says that the Applicant is ‘someone whom I always contact in any emergency situation’ who he believes will be ‘a good asset to the Australian community at large’. Mr Bul says the Applicant has been ‘there to help out with organising events for the youth and the community’.[30] It makes no mention of the Applicant’s drinking or offending.
[29] R1, T12/85-86.
[30] R1, T12/85.
The reference from Mr Gak is dated 14 August 2023. Mr Gak says that he has stayed or lived with the Applicant for many years. He says that the Applicant ‘is among the most respectful and honest gentleman’ that he has ever known. Mr Gak says that the Applicant has proved himself to be an honest, diligent, caring, resourceful, respectful and responsible person.[31] He states his unequivocal view that the Applicant ‘would be an excellent fit for a good Australian citizen’. It makes no mention of the Applicant’s drinking or offending.
[31] R1, T12/86.
The Applicant did not adduce oral evidence from either witness. Neither witness was cross-examined.
The Applicant has provided unchallenged evidence that in 2020 he became involved with his local community youth, and was appointed in an organisation called Twic East Youth of WA as an assistant chairman for a period of two years.[32] During his time as an assistant chairman, he says that his duties included mentoring young people, including advising on the process and challenges of obtaining driver’s licence and the consequences of driving when one is not authorised to do so, along with the consequences of driving with alcohol in the system. He says that his aim ‘was to teach them not go through the same path I went through’.[33] Those activities post-date all of the offences appearing on the Applicant’s court records.
Has the Applicant misled or deceived the Department?
[32] R1, T12/87.
[33] R1, T12/87.
The incoming passenger card
The controversial question asked of the Applicant in the incoming passenger card was this:
Do you have any criminal conviction/s?
The Applicant answered ‘no’, notwithstanding a history of offending against the Road Traffic Act 1974 (WA) (Road Traffic Act) and the Weapons Act 1999 (WA) (Weapons Act).
The Respondent says that the Applicant’s answer is incorrect, and further that the Applicant knew it was incorrect and deliberately sought to conceal criminal convictions from the Commonwealth.
It is not in dispute that the Applicant has convictions. The dispute is as to the reason that he denied any criminal convictions. The Applicant says that he genuinely thought that he did not have any criminal convictions and that the correct answer to the question was “no”.
The Tribunal has considered whether there is a material difference between a conviction and a criminal conviction. The surplusage canon of interpretation appears to be an obvious starting point to the Tribunal’s enquiry – if the question “do you have any criminal convictions” intended to capture all convictions, then the adjective “criminal” would not have been necessary.
The Macquarie Dictionary defines the adjective “criminal” in three ways:
(a)“of or relating to crime or its punishment”;
(b)“of the nature of or involving crime”; and
(c)“guilty of crime”.
The word “crime” does not have a simple, settled definition in Australia. In common usage it is apt to distinguish a wrong punishable by the state from a civil wrong. Convictions are not an available private remedy; they exist only as a penalty for a wrong punishable by the state. The term “criminal” used in this way would not have any function as an adjective in a question about convictions. The context therefore indicates that the word “crime” is meant in a technical and not the common usage sense.
Criminal law in WA is primarily governed by the Criminal Procedure Act 2004, the Bail Act 1982 and the Sentencing Act 2004. The Evidence Act 1906 and the Juries Act 1957 may also apply if the matter proceeds to trial. Criminal offences are dealt with in two broad categories; indictable offences and simple offences. Within these broad categories, traffic offences and minor criminal offences are dealt with as separate sub-categories.
“Crime” is not a defined term in any WA legislation. It is, however, a term used to strong purpose in the legislation; it is a substitute for the term ‘felony’ where it still appears. Section 3 of the Criminal Code is in the following terms:
3. Construction of statutes, statutory rules, and other instruments
The following rules shall, unless the context otherwise indicates, apply with respect to the construction of statutes, statutory rules, local laws, by‑laws, and other instruments, that is to say —
(1) When in any statute, statutory rule, local law, by‑law, or other instrument, public or private, the term felony is used, or reference is made to an offence by the name of felony, it shall be taken that reference is intended to an offence which is a crime under the provisions of the Code…
(emphasis added)
The Criminal Code provides for the offences contained within it being crimes. For example, being armed in a way that may cause fear (s 68 of the Code) comprises:
68. Being armed in a way that may cause fear
(1) A person who is or pretends to be armed with any dangerous or offensive weapon or instrument in circumstances that are likely to cause fear to any person is guilty of a crime and is liable to imprisonment for 7 years.
Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.
The Road Traffic Act provides for some offences being crimes. Section 59, for example, provides:
59 . Dangerous driving causing death or grievous bodily harm
(1) If a motor vehicle driven by a person (the driver ) is involved in an incident occasioning the death of, or grievous bodily harm to, another person and the driver was, at the time of the incident, driving the motor vehicle —
while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle;
…
(b) in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person, the driver commits a crime and is liable to the penalty in subsection
(Emphasis added)
It is clear from the terms of the Road Traffic Act that not everything described as an “offence” is also a “crime”. Section 60B of the Road Traffic Act states:
60B. Penalties for offences against sections 60 and 60A
…
(4) If an offence is committed in the circumstance of aggravation referred to in section 49AB(1)(c), the offence is a crime.
The distinction is important because of the use of the term ‘crime’ in the Criminal Procedure Act 2004, which defines an “indictable offence” as “a crime or any other offence described by a written law as an indictable offence, irrespective of whether in some circumstances it may be dealt with summarily”.
The offences that the Applicant has been found guilty of are against ss 49 and 63 of the Road Traffic Act and against s 6 of the Weapons Act.
Section 49 of the Road Traffic Act states:
49. Driving while unlicensed or disqualified
(1) A person who —
(a)drives a motor vehicle on a road while not authorised under the Road Traffic (Authorisation to Drive) Act 2008 Part 2 to do so; or
(b)employs or permits another person to drive a motor vehicle as described in paragraph (a),
commits an offence.
Section 63 of the Road Traffic Act deals with driving under the influence of alcohol and drugs. It does not create any crimes; each of the prohibited acts contained within the 7 subclauses comprises an offence.
Section 6 of the Weapons Act states:
6. Prohibited weapons
(1) Except as provided in subsections (2) and (3) and section 10, a person who —
…
(b) carries or possesses a prohibited weapon;
…
commits an offence.
The question that the incoming passenger card asks is specifically directed at criminal convictions, in contrast with the language used by the Commonwealth elsewhere (for example in the resident return visa application). The form does not ask whether the incoming passenger has “been convicted of an offence”. The enquiry on the incoming passenger card is clearly and unequivocally directed at convictions for crime. The Tribunal finds that it is an enquiry about convictions for indictable offences, as distinct from an enquiry about all offences, including simple offences.
The Applicant has not, in fact, been convicted of any indictable offences. None of the offences of which he has been found guilty are described as crimes in the creating legislation. The Applicant has been found guilty of simple offences that are not indictable and which are not correctly described as crimes.
The Tribunal finds that the question ‘do you have any criminal conviction/s’ is a question about conviction/s for an offence that is proscribed by legislation to be a crime. As such, the Applicant did not, in fact, mislead the Commonwealth or conceal his history by answering ‘no’ to the question ‘do you have any criminal conviction/s’.
The above conclusions of the Tribunal accord with the Applicant’s stated view of the question. The Applicant says that he understood the question to be asking him about ‘serious crimes’ not traffic offences or his concealed weapon offence. His evidence is plausible and his conclusion reasonable, in light of the above legal analysis. The Tribunal accepts the Applicant’s evidence.
The Tribunal finds that the Applicant thought he was answering the question posed in the incoming passenger card correctly and did not intend to mislead the Commonwealth or to conceal any relevant information by his answer.
The application for a Resident Return Visa
The question posed on the Applicant’s Resident Return Visa is simple and clear. It asked the Applicant whether he had ever been convicted of an offence in any country. The correct answer to that simple, clear question is ‘yes’. It is an undisputed fact, proved on the evidence adduced by both parties and admitted by the Applicant, that the Applicant has been convicted of offences in Australia. He had previously volunteered that he had been convicted of offences in Australia in the context of his citizenship application.
What the Tribunal must determine is why the Applicant did not answer the question correctly, and what that means for an assessment of his character. The Applicant says that he thought the question meant “in any country other than Australia”. He says that he thought he had already told the Australian government about his convictions in the context of his citizenship application, and that the convictions would now be a matter of record that would be before the Commonwealth on his file. He says that he understood the words “in any country” to mean “not just the country of your birth and/or the country from which you are returning” but any country other than Australia.
The question with respect to whether the Applicant has ever been convicted of an offence “in any country” was read by the Applicant in the context of further questions as to whether the Applicant has ever overstayed a visa “in any country (including Australia)”. The parenthesised phrase “including Australia” appears in 2 of the questions, and the phrase “in Australia or any other country” is used in another question. The Applicant’s asserted belief that the earlier question did not include Australia is plausible given that in relation to three other questions the author of the form identified a need to specifically state “including Australia” or “in Australia or any other country”. It is not clear why that phrase was not used in relation to the general question about offending.
The Tribunal does not accept that the Applicant gave the correct answer to the question. However, it accepts that the Applicant believed that he was answering the question correctly when he said “no” and that he did not intend to mislead the Commonwealth.
The application for citizenship
The Application for Citizenship includes the following question on page 25 at question 39:
(a) Have you been convicted or, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application and any ‘spent’ convictions)? (Original emphasis)
The Applicant answered ‘yes’ to this question.
Question 39 concludes with the following statement:
If you answered ‘Yes’ to any of the questions at Question 39, you must give ALL relevant details. If the matter relates to a criminal conviction, please give the nature of the offence, full details of sentence and dates of any period of imprisonment or other detention.
Beneath this statement is a box half the width of the page with 9 lines in which the applicant has hand-written:
- TRAFFIC OFFENCES
- SPENT CONVICTION OF CARRYING A PROHIBIT WEAPON IN 2007
These words, in a reasonably ordinary size of handwriting, took up four of the available 9 lines.
The Applicant says that he was aware that the Commonwealth had access to his full offending history, and that he thought he had provided sufficient information to satisfy the question. The Tribunal agrees with the Applicant to some extent. The question asks for ‘relevant details’. The offences were committed in Australia. The Applicant provided sufficient information to enable the Commonwealth to identify a need for and obtain his offending history, which provided a comprehensive list of his offences. The Applicant says, and the Tribunal accepts, that it was not his intention to hide any of his offences or paint himself in a better light than his full history would allow.
However, the Tribunal does give some weight in its assessment of the Applicant’s character to the Applicant’s failure to completely and accurately answer the question put to him. The question asked that the Applicant “include all traffic offences that went to Court”. The Applicant answered: “Traffic Offences”. Whilst the Tribunal accepts that the abbreviated response was not an attempt to mislead the Department, it is nonetheless an inadequate answer to the question posed. It is difficult for the Tribunal to be satisfied that the Applicant appreciates the significance of his past offending given the summary nature of this response.
The Applicant’s offending record
Prohibited Weapon offence
The Applicant has a spent conviction for carrying a prohibited weapon in 2007. He was 18 years old at the time of the offence. He was searched by police, in circumstances that are not presently before the Tribunal, and it was discovered that he had a set of metal knuckle dusters on his person. According to the police records the Applicant said that he carried the knuckle dusters for self-defence and for fighting. The Tribunal gives little weight to the police record, because of the absence of information about the circumstances in which it was made or any knowledge about its author. It is not a record that has the weight of forming part of the material before the Court at the time that the plea of guilty was entered. The Applicant’s evidence to the Tribunal was that he had the knuckle dusters because he was a kid and thought they were cool. The Tribunal notes the absence of any other violent offences on the Applicant’s record and accepts the Applicant’s evidence. The Tribunal gives little weight to this offence, which took place 17 years ago when the Applicant was a young adult and appears as an isolated offence of this nature.
Driving without a licence and driving under the influence
The Tribunal turns to the Applicant’s court record, and the driving offences which are of a serious nature. The Minister contends that the cumulative and repetitive behaviour of driving without a licence on seven occasions and driving whilst intoxicated on five occasions over an eleven-year period is contrary to the characteristics possessed by a person of good character.[34]
[34] SFIC p7.
The Tribunal agrees and gives considerable weight to the drink driving and unlicenced driving offences. The Tribunal has previously held that the offences of drink driving and unlicenced driving “clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the views of Australian society insofar as operation of a motor vehicle on a public road is concerned.”[35]
[35] Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]-[44].

The Applicant says that he did not appreciate the seriousness and consequences of these offences, and that he only had the opportunity of learning the consequences and effects in 2019[36] when he says he experienced a very significant change of perspective after attending a university career expo program.[37] His Statutory Declaration includes the following passages:
5. My perception changed in the late 2019 toward the end of my studies after attending a university career expo program, where I was advised by the coordinator about the consequences and effects of drving (sic) with alcohol in the blood. These consequences range from having difficulties persuing (sic) a career pathways, to have one’s judgment being impaired which can altimately (sic) results in an accident on the road, and worse of all death of an innocent individual due to that.
6. Upon learning of the consequences and effects, I came to a conclusion to stopped (sic) driving with alcohol in the system…
[36] R1, T12 p 87 [3]-[4].
[37] R1, T12 at 87.
The Applicant’s driving offences are not trivial and are not socially acceptable in Australia by any measure. The Tribunal does not accept that the Applicant had no opportunity to learn the consequences or effect of them prior to 2019. The Applicant knew or ought to have known from at least the date on which he was first granted an Australian Driver’s Licence that the effects of drinking and driving could be catastrophic if for no other reason than that it has been the subject of constant campaigns by government and non-government agencies for a long time. The Applicant also knew or ought to have known that there are serious insurance implications for driving without a licence and that this might have catastrophic financial consequences in the event of an accident. The Applicant’s car was repeatedly impounded as a consequence of his offending, and he was fined thousands of dollars. He cannot have failed to appreciate that the authorities took his offending seriously.
The Tribunal accepts that the Applicant experienced some change in his attitude in 2019 after a university careers fair at which he discovered that his offending history would potentially be available to his future employers. The Tribunal does not accept that the career’s fair was the first time that the Applicant was made aware that driving without a licence and driving under the influence were serious and dangerous offences and finds that the Applicant’s changed attitude arose because he became aware that he may be unemployable if he continued to offend.
Is the Applicant still subject to an approved operation alcohol interlock?
On 24 October 2016, Western Australia introduced an Alcohol Interlock Scheme, which applies to high-end and repeat drink drivers. Alcohol interlocks are electronic breath analysis devices installed in vehicles that prevent the vehicle from being operated unless a breath sample is provided for analysis by the interlock. The alcohol interlock will prevent the vehicle from being started if the interlock detects alcohol equal to or greater than the pre-set 0.02% Blood Alcohol Content (BAC) limit in the driver's breath sample provided for analysis. Randomly timed breath tests must be provided when prompted by the interlock whilst driving a vehicle.
It is common ground that the Applicant had an alcohol interlock condition placed on his licence following his conviction for driving under the influence in 2019. The restricted driving period of an interlock restricted driver starts when, following the interlock restricted driver’s most recent conviction for an alcohol interlock offence, the driver has an approved alcohol interlock installed under an interlock contract in a vehicle that the driver is authorised to drive.[38] Throughout the restricted driving period, an interlock-restricted driver must periodically present in person the relevant vehicle for inspection of the approved alcohol interlock in respect of each inspection period in accordance with the terms of the interlock contract.[39]
[38] Road Traffic (Authorisation to Drive) Regulations 2014 (Authorisation to Drive Regs), Reg 69L.
[39] Reg 69M(1).
If the condition is still in place it is relevant to the Tribunal’s consideration, because the absence of any repeat offending may arise because the Applicant is prevented from driving under the influence, and not out of any demonstrated improvement in his character.
The Respondent says that the Tribunal should find that the Applicant’s vehicle is still subject to the condition that he can only drive a vehicle with an approved operation alcohol interlock, because that is what is reflected on his records as produced by the Department of Transport.[40]
[40] R2, TB5/59.
The Applicant says that this condition has been removed, and that any indication to the contrary on the Department of Transport records is an error. The Applicant tendered his original Australian driver’s licence to the Tribunal during the hearing. It is current and has been issued since the Applicant’s last driving conviction. It is not endorsed with any condition. The Applicant says that this is proof that he is not subject to any conditions.
The Road Traffic (Authorisation to Drive) Regulations 2014 (Authorisation to Drive Regs) provide that where a driver’s licence is granted to an alcohol offender their licence must be endorsed with condition I.[41] This applies irrespective of the terms of the court order directing the grant of the extraordinary licence.[42] If an interlock-restricted driver is taken under reg 69Q to have demonstrated the separation of drinking and driving behaviour then they cease to be an alcohol offender and condition I must be removed from their driver’s licence.[43]
[41] Reg 69D(1).
[42] Reg 69D(2).
[43] Reg 69F.
Regulation 69Q is in the following terms:
69Q .Demonstrating the separation of drinking and driving behaviour
An interlock‑restricted driver is taken to have demonstrated the separation of drinking and driving behaviour when the following conditions are satisfied —
(a)in the case of a driver who has been permanently disqualified, the driver has completed one or more restricted driving periods totalling in aggregate at least 3 years since the most recent date on which —
(i) a disqualification was imposed on the driver; or
(ii) an extraordinary licence held by the driver was cancelled;
(b)in the case of any other driver, every period of disqualification imposed on the driver has ended;
(c)the driver has started or restarted a restricted driving period that has continued for at least 180 days up to and including the current date;
(d)the CEO is reasonably satisfied that the driver has complied with any requirement under regulation 69N to participate in alcohol assessment and treatment.
Where these criteria are met, the regulations impose an imperative obligation on the CEO to remove condition I from the driver’s licence.
The Applicant’s offending history does not show any termination and restart events proscribed in s 69O, or termination without restart events proscribed in reg 69P. The Applicant’s unchallenged evidence is that more than 180 days has elapsed since the commencement of his restricted driving period. The evidence before the Tribunal is not inconsistent with the Applicant having satisfied reg 69Q.
The Respondent did not call any witness to speak to the Department of Transport records. The print-out appears to a lay-person to show that the Applicant has a current interlock condition on his licence, but it is an internal record and not written to inform a lay-person. In contrast, the Applicant’s driver’s licence is intended to inform the world at large of his legal rights and obligations, and there is a legislative regime that clearly informs the Tribunal of what to look for to determine whether the Applicant is still subject to an interlock restriction. The Tribunal must give more weight to the Applicant’s drivers licence than to the internal record.
The Tribunal finds that the Applicant is not presently subject to an interlock restriction on his licence. However, the Applicant was unable to provide detailed evidence about the date on which the interlock was placed in his vehicle and the date on which it was finally removed. It is not clear to the Tribunal how much time has elapsed since the Applicant has been limited only by his self-discipline and not by an enforcement device.
The Tribunal accepts the Applicant’s evidence that he has had some alcohol and drug counselling in the context of the interlock being installed in his vehicle, and that the removal of the interlock indicates the successful completion of that counselling. The Tribunal accepts the Applicant’s evidence that he does not intend to drink at any time when he expects to be driving in the future. He has not given up drinking entirely, however, and it is not yet clear whether the Applicant’s resolve will survive being tested by unexpected events.
Other traffic infringements
The Minister says that in addition to the offences recorded on the Applicant’s court history, there are three further relevant traffic offences indicated in the Department of Transport records;
(a)Exceeding the speed limit between 10 and 19 km/h on 22 May 2011;
(b)Failing to stop before a red arrow on 10 July 2017; and
(c)Failing to stop before a circular red signal stop line on 1 June 2023.[44]
[44] R2, TB p69.
The Tribunal does not give any weight to these three offences. With respect to the first of these offences, it occurred over 13 years ago and has not been repeated. The Tribunal does not know enough of the details of either of the second two offences to form a view about the Applicant’s character based on them. There is, of course, a significant difference between allowing a car to go 2 inches over a white line, triggering a camera, or wilfully running a red light at speed. The first is a minor error of judgment posing no real risk of harm. The second demonstrates a catastrophic disregard for the safety of others. The Applicant’s uncontradicted evidence is that he simply rolled a small amount over the line and did not run through the intersection. Given the Applicant’s limited offending of this nature the Tribunal is inclined to accept his unchallenged evidence.
CONCLUSION
The Applicant’s attitude to the various driving offences he has committed does not persuade the Tribunal that he is meaningfully remorseful for his many decisions to drive without a licence and to drive under the influence, each of which put other road users at risk or serious harm or death.
The Tribunal accepts that the Applicant has not been convicted of a drink driving or unlicenced driving offence for four years. However, the balance of evidence suggests this is because the Applicant wants an unblemished record to show employers. Notwithstanding the Applicant’s drug and alcohol program, he does not accept responsibility for his decision making; he says he had no opportunity to know any better.
The Applicant’s witness statements speak well of aspects of his character. However, they do not say anything about the Applicant’s offending or his drinking. The authors were not called to speak to their witness statements and were therefore not available to be cross-examined as to how their views might change if they were informed of the Applicant’s offences. The Tribunal gives the statements some weight, but they do not outweigh the seriousness of the Applicant’s disregard for the Road Traffic Act and the safety of other road users.
The Tribunal has considered what weight to give the Applicant’s volunteer work teaching other young people about the importance of obeying the Road Traffic Act. The Tribunal considers that this sort of volunteer work does do much to rehabilitate a person’s character after a period of time has elapsed. The Applicant has engaged in this volunteer work for a maximum period of four years, after an eleven-year period of serious road traffic violations for which he does not accept full responsibility. There is no evidence as to the actual amount of time that the Applicant has invested in this volunteer work, or how onerous it has been for him. The volunteer work is not presently sufficient to outweigh the risk that the Applicant posed to other road users. It may do much to re-establish his good character in the longer term if the Applicant commits significant time and effort to it for a longer period.
For the reasons outlined above, the Tribunal cannot presently be satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act. That is not the same as a finding that the Applicant is a person of bad character, and it does not preclude a further citizenship application in the future. If the Applicant continues to obey the law, to volunteer his time to educate others, and if he reflects on his agency over his previous breaches, then it may well be that the Minister is satisfied of his good character at some later date.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 19 October 2023 to refuse the Applicant’s application for citizenship by conferral, is affirmed.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of JLW Henderson, Member

...............[Sgd].........................................................
Associate:
Dated: 6 August 2024

Date(s) of hearing: 17 July 2024

Applicant: Self-represented

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

Date(s) of hearing:	17 July 2024
Applicant:	Self-represented
Solicitors for the Respondent:	Ms Daphne Jones-Bolla, Sparke Helmore