Re Ahori and Minister for Immigration and Border Protection

[2017] AATA 601

Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601 (5 May 2017)

Division:GENERAL DIVISION

File Number:           2016/4048

Re:Puneet Ahori

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member J Sosso

Date:5 May 2017

Place:Brisbane

The Tribunal affirms the decision under review.

....................[Sgd]....................................................

Senior Member J Sosso

CATCHWORDS

CITIZENSHIP – eligibility - where application for Australian citizenship refused – good character requirements – where Applicant has history of road traffic offences – where Applicant breached domestic violence order – whether mitigating factors exist – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21

Australian Citizenship Regulations 2007

Australian Citizenship Regulation 2016

CASES

Al-Boushama and Minister for Immigration and Border Protection [2015] AATA 5

Apire and Minister for Immigration and Border Protection [2014] AATA 193

Daood and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 481

HSXY and Minister for Immigration and Border Protection [2016] AATA 560

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016.

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

REASONS FOR DECISION

Senior Member J Sosso

5 May 2017

INTRODUCTION

1. Mr Puneet Ahori (the Applicant) is a 27 year old citizen of India. He arrived in Australia on 4 March 2008 as the holder of a Higher Education Sector visa (subclass 573) and currently is the holder of a Spouse visa (subclass 801) which was granted on 14 February 2014 – Exhibit 1 T4 and T8.

2. The Applicant applied for Australian citizenship on 18 April 2016.

3. The general eligibility principles for the conferral of citizenship are set out in s 21(2) of the Australian Citizenship Act 2007 (the Act). Paragraph 21(2)(h) requires that the person applying for citizenship must be of good character at the time a decision is made whether to confer citizenship.

4. In response to the question in the citizenship application form if the applicant had been convicted or found guilty of any offences here or overseas, the Applicant gave the following response (Exhibit 1 T4 p. 26):

   “Yes

   Yes in

   sep (sic) 2009 traffic offence

   23 mar (sic) 2016 good behaviour until 26 sep (sic) 2015”.

5. On 8 June 2016 the Department of Immigration and Border Protection wrote to the Applicant. The Department referred to the above answer and then said (Exhibit 1 T7 p. 52):

   “Records indicate that a person with the name AHORI, Puneet and the date of birth…had court appearances on or about the following dates:

   -     18/08/2010 Use unregistered vehicle on road or road related area

   -     18/08/2010 Not obey direction of police/authorised person

   -     19/09/2011 Drive on road etc while licence suspended

   -     07/05/2015 Contravention of Domestic Violence Order”

6. On 11 July 2016 the delegate of the Minister (the Delegate) refused the Applicant’s application for Australian citizenship – Exhibit 1 T8 p. 59.

7. The Delegate made the following findings (Exhibit 1 T8 p. 66):

   “I find that you have not been entirely honest with the department regarding your past, and that you have shown a disregard for the law in recent years.  The repetitive nature of some of the offences, and the limited attention you have afforded these matters in your response to the invitation to comment process do not satisfy me that you are of good character at the time of the decision on your application.  You therefore do not satisfy paragraph 21(2)(h) of the Act.”

8. On 19 July 2016 the Applicant sought review of this decision – Exhibit 1 T2 p. 3. Three reasons were adduced for seeking a review, namely:

   “(1) The reasion (sic) is I did have a good behaviour but never had fine.

   (2) The canselation (sic) of my licence was not my fault (Proof will be provided).

   (3) The fines I had in last two years that was because I was driving taxi.”

9. The application was heard by the Tribunal on 27 March 2017. The Applicant attended in person and represented himself.  The only witness called by the Applicant was a neighbour of his, Mr Rodan Burgin (a.k.a. Burdin).  The Minister for Immigration and Border Protection (the Respondent) was represented by Mr M Hawker of Sparke Helmore Lawyers.

   ISSUE

10. The sole issue to be determined is whether the Applicant satisfies the Tribunal that he was of good character as required by s 21(2)(h) of the Act.

    CONSIDERATION

    Legislative Regime

11. Good character is not defined by the Act. Guidance, however, is provided by the Australian Citizenship Instructions (ACI), the most recent version of which were reissued on 1 January 2016 together with the Australian Citizenship Policy (ACP) issued on 1 June 2016.

12. In this case, the Applicant lodged his application for citizenship on 18 April 2016 before the introduction of the ACP (when the ACI was the applicable policy guidance); however, the Respondent made its decision, and the Tribunal heard and reserved its decision in this matter, after the ACP was issued. Senior Member Cotter provides assistance on this in HSXY and Minister for Immigration and Border Protection [2016] AATA 560 where he said that:

    “… notwithstanding the introduction of the ACP, the ACIs remain in force and now detail the operational instructions for decision makers; the ACP and the ACIs operate side by side as policy and operational instructions. In the event of inconsistency with respect to policy guidance, the ACP is to be preferred.”

13. In this case, as there is no inconsistency between the ACI and ACP in relation to policy guidance relevant to this matter, I will refer to the ACI.

14. The Instructions are designed to provide guidance on the policy in relation to the interpretation of the Act and the exercise of powers under the Act and the Australian Citizenship Regulations 2007 (2007 Regulations). The Tribunal will generally apply the Instructions unless there is a cogent reason not to do so – Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.

15. I note since the time of the Respondent’s decision, the 2007 Regulations have been repealed and superseded by the Australian Citizenship Regulation 2016 (2016 Regulation). As the 2016 Regulation is a remake of the 2007 Regulations with no substantive changes, I have applied the 2007 Regulations as they were in force at the time of the Respondent’s decision.

16. 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 (1996) 68 FCR 422. Lee J said (431-432):

    “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.”

17. Reference can also be made to the non-exhaustive list of characteristics expected of a person of good character set out in Cl. 10.3.4 of the ACI. The relevant characteristics in this matter are:

    “An applicant of good character would:

    ·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:

    oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications

    oinvolvement in bogus marriage

    oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship

    oinvolvement in Centrelink or Australian Tax Office fraud

    ogiving false names and/or addresses to police…”

    ·not be violent… 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)

18. Clause 10.5.2 of the ACI sets out, inter alia, some of the mitigating factors that a decision‑maker should take into account. So far as is relevant to this matter, those mitigating factors are:

    (a)what is the length of time between the date of the offence(s) and the application for Australian citizenship;

    (b)has the Applicant accepted responsibility and shown remorse for his conduct;

    (c)what was the Applicant’s age at the time the offence(s) were committed;

    (d)were there any extenuating circumstances, for example were the offences committed under duress or during periods of psychological disturbance;

    (e)is there any evidence of the Applicant’s length of employment, stable family life or community involvement. References may be submitted from independent people such as employers attesting to the Applicant’s character and whether they support the application for citizenship.

19. Finally Cl. 10.5.4 provides guidance on weighing up all of the above in reaching a conclusion. Set out below are relevant extracts:

    “Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities.

    In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards.  Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

    ·would a person of good character have behaved the way the applicant did

    ·what is there to demonstrate that the applicant has upheld and obeyed the law

    ·has the applicant behaved in accordance with Australia’s community standards

    ·does the applicant share Australia’s democratic beliefs and respect its rights and liberties…

    A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.”

    Road Traffic History

20. The Applicant was 18 years old when he arrived in Australia. Since that time he has studied a range of disciplines, including, business management, hospitality and flying aeroplanes.

21. Additionally, he has been in steady employment for much of this time.  During a considerable amount of time the Applicant was gainfully employed driving taxis.

22. The Applicant has resided in New South Wales, the ACT and since 2013 in Queensland.

23. The Applicant’s employment as a taxi driver is of significance, as the Respondent presented to the Tribunal the Applicant’s extensive record of traffic offences.

24. The Applicant’s New South Wales driving record is a litany of breaches of the traffic laws (Exhibit 10). In summary the breaches are as follows:

    1.21.08.08  Unlawful U Turn

    2.25.08.08  Exceed speed limit by not more than 15 km/h

    3.25.08.08  Exceed speed limit by not more than 15 km/h

    4.07.10.08  Exceed speed limit by not more than 15 km/h

    5.18.08.10  Fail to obey Police direction

    6.15.11.10   Withdrawal of NSW visiting driver privileges for 3 months on grounds of not being a fit and proper person in view of recorded offences

    7.23.04.11  Unlicensed driving

    8.30.07.11  Driving while suspended

    9.02.01.12  Not wearing seatbelt.

25. The Applicant’s persistent and prolific breaching of traffic regulations continued when he moved to Queensland. The Respondent provided the Tribunal with the Applicant’s Queensland driver licence history which is summarised below (Exhibit 11):

    1.14.08.13 Exceed speed limit 13-20 km/h

    2.17.08.13 Exceed speed limit 13-20 km/h

    3.18.08.13 Exceed speed limit less than 13 km/h

    4.22.08.13 Fail to stop at red light

    5.23.08.13 Exceed speed limit less than 13 km/h

    6.09.11.13 Proceed contrary to yellow light/arrow

    7.28.11.13  Illegal U Turn

    8.11.04.14 Exceed speed limit less than 13 km/h

    9.15.09.15 Exceed speed limit 13-20 km/h

    10.22.12.15 Exceed speed limit less than 13 km/h

    11.05.02.16 Fail to stop at red light.

26. In addition during various periods in both New South Wales and Queensland, the Applicant’s driving licence was suspended. Fines imposed on the Applicant for each of these infringements ranged from $81 to $430.

27. The Respondent contends (Respondent’s Statement of Facts, Issues and Contentions (RSFIC) at para 23) that the Applicant failed to disclose the full history of his offending behaviour in his application for citizenship.

28. The Respondent also contends (RSFIC para 25) that although the traffic infringements may be seen as minor in nature, given that no convictions were recorded, nonetheless the Applicant has demonstrated a pattern of offending behaviour and disregard for the law. Further, the Applicant’s speeding infringements demonstrate a reckless disregard for the rules of the road and the safety of the community.

29. The Tribunal’s attention was drawn to a number of previous Tribunal determinations involving the application of the good character test where there was a history of traffic infringements.

30. The first is Apire and Minister for Immigration and Border Protection [2014] AATA 193. The applicant in that matter was a 25 year old male who was of Sudanese origin. Over a five year period between 2007 and 2012 he was convicted twice for drink driving and five times for driving while disqualified, including twice on the same day in 2009, with the second offence occurring five minutes after the first. The applicant answered “no” to the question whether he had been convicted of any offences. He informed the Tribunal that he thought the question related to offences overseas and not in Australia.

31. Member Webb made the following observations:

    “15. In view of his criminal history, it is quite clear that Mr Apire has a pattern of disobeying traffic laws over an extended period. He has repeatedly driven a motor vehicle without a current driver’s license; he has driven a motor vehicle while under the influence of alcohol; and he has driven a motor vehicle without current registration.  He has been charged and convicted of multiple offences as a result. Behaving in this manner, he has placed his passengers (including children) and other road users at risk of harm.

    16.  Even though each offence is not properly classed as a ‘serious offence’ under 10.5.2 of the Instructions, rather meeting the description of a ‘minor offence’, to my mind driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly…

    17. I do not accept his assertion that he drove only because it was necessary for him to do so in order to keep his job, or because there was no other alternative…”

32. The other Tribunal determination the Respondent referred to is Daood and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 481.

33. The applicant in that matter was a 26 year old male who arrived in Australia from Iraq in 2006. He had an extensive history of traffic infringements, including making a false statement in making a licence application. In his citizenship application he answered in the affirmative to whether he had been found guilty of any offences, but left blank that part of the form which requires an applicant to provide all relevant details.  At various times he had been employed as a truck driver, and his licence had been suspended after he applied for citizenship, but he failed to disclose that fact.

34. Senior Member Toohey, in rejecting the application for citizenship said:

    “47. In relation to Mr Daood’s traffic offences the Minister contends that while not serious offences, his behaviour suggests a pattern of disregard for the law. I agree. In the space of five years, Mr Daood has been charged on two occasions of exceeding the speed limit by 30 kilometres per hour, been issued with two infringement notices, had his licence privileges withdrawn and his licence suspended. I accept that Mr Daood is remorseful for the consequences of his actions but he does not appear to fully accept responsibility for his conduct.

    48. Mr Daood’s failure to disclose his most recent driving offence does not weigh in his favour. Even if I accept that he did not mention it because he was not asked, the fact remains that, during the life of these proceedings, he has committed a further driving offence.

    49. Taking all of this into consideration, Mr Daood continues to show a measure of disregard for the law and an unwillingness to accept responsibility for his actions which weigh against a finding that he is of good character for the purposes of conferral of citizenship.”

35. The Applicant stated in a statutory declaration dated 29 July 2016 (Exhibit 1 T2 p. 16) that the fines he received between August 2013 and February 2016 were “due to taxi driving”. He also deposed that he had “to support my wife, mum and kid”, that he “was new in Brisbane roads” and that his “working hours was 7am till 11pm in night its about 11 hrs a day to support my family.”

36. The Applicant, when cross-examined,  re-iterated that the fines he received were due to the fact he was a taxi driver and was therefore more likely to be driving and more likely to receive traffic infringement notices. He also stated that sometimes he would exceed the speed limit because he was transporting drunk or dangerous passengers and wanted to get them to their destination as quickly as possible. He provided other excuses for previous traffic infringements, including the need to attend university.

37. The impression given by the Applicant at the hearing, was of a man who placed his own needs and agenda on a higher level than the requirement to obey the relevant traffic laws.  His record of traffic infringements is a lengthy one, and while none of the infringements could be categorised as serious, there is a clear pattern of a casual disregard for the traffic laws of Australia. The Applicant showed little if no remorse and little understanding of the seriousness of his conduct. Indeed, the Applicant was quick to make excuses for his law breaking, and constantly portrayed himself as a victim of circumstance. This lack of self-awareness was a troubling trait and was compounded by the fact that he seemed, and seems, never to have considered the potentially serious implications of his speeding offences on the health and safety of not only the passengers he was transporting, but also the other users of the public roads in New South Wales and Queensland.

38. The Applicant’s response in his citizenship application form to his traffic history also does not weigh in his favour. However, not too much can be made of this as the Applicant did indicate he had convictions, and the wording of the question and the space provided for a response are both less than optimal.

    Domestic Violence History

1. The Applicant is the father of two young children with Ms SA.  They currently live together but are not married. The Applicant testified that he wanted to marry Ms SA in the not too distant future.

2. The Applicant met Ms SA when he moved to Brisbane. He testified that she moved into his rented accommodation and helped pay the rent.  Before she moved in she did not know the Applicant.

3. Sometime after she moved in they became intimate, but their relationship was, and remains, a volatile one.  The Applicant testified that they got into arguments constantly because Ms SA was not paying her share of the rent.

4. The Respondent provided the Tribunal with numerous Police reports when members of the Queensland Police Service visited the premises of the Applicant following complaints of a disturbance.

5. The first report is of 17 May 2014 (Exhibit 12) where Ms SA complained that the Applicant had held her arms and punched her once in the head and once in the side of her face and pushed her against a wall. The Police report noted that there were nil injuries sighted on Ms SA and nil damage to property. Neighbourhood enquiries revealed that the couple had regular verbal arguments. The Applicant said that Ms SA started the arguments and he had never hit her. The Police determined to take no further action.

6. The Police were again called to the premises on 27 June 2014 following a verbal argument between the Applicant and Ms SA.  Again the Police determined that no action was required (Exhibit 13).

7. The next incident involving the Police was on 15 September 2014 in a public place. The Police report (Exhibit 14) discloses that the Applicant and Ms SA were in a motor vehicle and an argument developed. She alleged that he struck her and he alleged that she struck him. The cause of the argument was over rent money. The Police report concluded as follows:

   “The Resp stated that she starts the arguments and stated that he has  never hit her…There has been two previous occurrences involving the agg and respondent and according to the agg the physical and emotional abuse is escalating and the agg stated to Police that she was fearful in the relationship. Police fear the incidents of violence will continue and possibly escalate. Based on the previous two occurrences Police have attended at the agg and resp residence along with today’s altercation Police believe that a domestic violence order is desirable to stop the ongoing conflict between the agg and resp”

8. Subsequently on 17 September 2014 a Protection Order was issued by the Pine Rivers Magistrate Court with mandatory conditions in force until 17 September 2015. The mandatory order was that the Applicant be of good behaviour towards Ms SA and not commit domestic violence against her. On 30 November 2014 Police were called to the Applicant’s residence. Ms SA alleged that the Applicant and she fought over money and that he hit her a number of times and prevented her from leaving the premises. The Applicant was arrested and transported to the Pine Rivers Watch House where he was remanded in custody for a short period.

9. On 7 May 2015 the Pine Rivers Magistrates Court ordered that the Applicant enter into a recognisance in the amount of $500 that he be of good behaviour and appear for conviction and sentence if called on at any time during the period of 6 months from 7 May 2015 – Exhibit 1 T2 p. 10.

10. Unfortunately, this was not the last time Police were involved in altercations between the Applicant and Ms SA. Records produced by the Respondent detail Police intervention on 23 May 2015 (Exhibit 17), 15 September 2015 (Exhibit 18), 25 January 2016 (Exhibit 19) and 10 March 2016 (Exhibit 19).

11. Although Ms SA regularly accused the Applicant of hitting her, on more than one occasion the Police Report indicates no evidence that this occurred. Indeed, the last report of 10 March 2016 the attending Police noted:

    “she changed her mind on the story several times, appearing to embelish (sic) on her injuries to the point where she was grabing (sic) her arm possibly attmepting (sic) to put red marks where the Resp allegedly grabbed her…The witness stated that though he did not see the argument between parties, it appeared to be quite minor and both sided. He further stated that the agg had screamed and yelled at him… Investigations reveal that it is highly doubtful the offence occured (sic).”

12. Ms SA did not attend the hearing or give evidence by telephone. She prepared a short statement dated 7 February 2017 (Exhibit 9) in which she said:

    “2 I know puneet ahori from last 5 years

    3 I am aware of his trafic (sic) offences and domestic violence history.

    4 I have seen a big huge change in him since that all happen.

    5 he is not same any more he change towards good I am sure he will not do anything like that any more

    6 He is a good character.”

13. The Respondent quite rightly contends that offences involving domestic violence should be characterised as serious (RSFIC para 24). The Respondent drew to the Tribunal’s attention Al-Boushama and Minister for Immigration and Border Protection [2015] AATA 5. In that matter the applicant was convicted of common assault against his former wife but did not disclose his conviction in his citizenship application form.

14. Professor McCallum rejected submissions that a domestic violence offence was a minor matter, and determined it was a serious offence. The fact that the applicant was very stressed at the time was not accepted as an excuse. That combined with the applicant’s wilful withholding of information about his conviction was sufficient for a finding that he was not a person of good character.

15. Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.

16. The fact that the Applicant breached the Protection Order of itself is sufficiently serious to make a prima facie finding of lack of good character. There would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character and not a person who deserves the conferral of Australian citizenship.

17. That said, the test of good character enunciated by Lee J is comprehensive and not unilateral. The Tribunal would be in error if it automatically reached a conclusion based purely on a conviction for domestic violence, or other serious offence, without considering and  evaluating all the evidence presented.

18. In this matter, the evidence leads to the conclusion that the Applicant and Ms SA have had a tempestuous relationship. Money issues have been the cause of much of their strife. This has been compounded by the fact that Ms SA informed the Police that she was estranged from her family because of her relationship with the Applicant. Young, impecunious, separated from their families and with language difficulties, it is easy to understand why problems arose and then got out of control.

19. None of this excuses the Applicant’s breach of the Protection Order. The number of times that Police resources have been expended in dealing with the domestic strife of the Applicant and Ms SA is quite unacceptable. The behaviour exhibited by both has been poor and reflects badly on each of them.

20. The Applicant expressed remorse when giving evidence about the fact that he and Ms SA fought as much as they did, and I believe he expressed genuine love both for her and his two young children. The evidence suggests that the relationship between the Applicant and Ms SA is maturing and improving as time progresses.

    Stealing

21. The Respondent tendered a Queensland Police Service Court Brief (Exhibit 20) where it was alleged that between 17 September 2015 and 6 October 2015 the Applicant stole tools the property of an unnamed person who was engaged to complete a perimeter fence.

22. The Charge Sheet disclose that the “victim” had part completed the work he was engaged for, when he left Brisbane to travel to Sydney because of a family emergency. Whilst in Sydney there was a falling out between the Applicant and the “victim” and the latter stated that he would not complete the job. The “victim’ had left work equipment at the Applicant’s house, and the Applicant seized the property in lieu of $200 it was claimed he was owed.

23. Police intervention was sought and the Applicant was charged with a stealing offence under the Queensland Criminal Code.

24. There is no evidence how this matter was resolved, but no evidence was presented that the charge was proceeded with or that a conviction was recorded.

25. In the absence of such material, the Tribunal makes no adverse finding against the Applicant. The facts disclose a dispute between two persons who were in a contractual relationship, with one unilaterally terminating the contract and the other purporting to exercise a lien.

    Personal References

26. The Applicant tendered a number of character references. 

27. Before admitting these documents the Applicant was informed of the contents of Cl. 10.6.5 of the ACI, which deals with reference reports. The relevant parts are set out below:

    “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, and 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.

    It is preferable that references are not submitted from family members.  However, if they are, less weight should be given to them because of the societal expectation that family members would tend to support one another and play down unacceptable conduct. Decision makers should take particular care with references from victims of domestic violence. There is a risk that such statements have been coerced either directly or indirectly.”

28. References from the following persons were admitted into evidence:

    (a)Parminder Sandhu (10.10.2016) – Exhibit 2;

    (b)Mohammed Shan (10.10.2016) – Exhibit 3;

    (c)Rodan Burgin (10.10.2016) – Exhibit 4

    (d)Rodan (07.02.2017) – Exhibit 5;

    (e)Puneet Ahori (07.02.2017) – Exhibit 6;

    (f)Puneet Ahori (10.10.2016) – Exhibit 7;

    (g)Sam – Coolabah Tree Café – Exhibit 8; and

    (h)Ms SA.

29. None of the character references were in the form of a statutory declaration.

30. With the exception of the reference of “Sam” the Director of Coolabah Tree Café (where the Applicant now works), all of the other references were short and pro forma.

31. With the exception of Mr Rodan Burgin none of the other character referees were called to give evidence.

32. Mr Burgin was said to have provided two references. The later reference of 7 February 2017 does not contain his surname. The reference starts: “My name is Rodan resident of…”.

33. Mr Burgin testified he only recalled signing one character reference which was executed about six months ago. He has known the Applicant for approximately two years and first got to know him through the taxi industry. Mr Burgin was aware of the Applicant’s domestic violence problems but was not aware of his extensive traffic infringement history. He claimed that he prepared his reference and he signed it.  He did not recall signing a reference this year.

34. Mr Hawker drew the Tribunal’s attention to the fact that the signature of Mr Burgin in the references was not the same.  When the Applicant was asked to provide his explanation as to why Mr Burgin could not remember signing the 2017 reference, he stated that Mr Burgin had dementia.

35. The clear inference to be drawn was that Mr Burgin did not sign, and had no knowledge of, the 2017 reference.  The document is, most probably, a concoction.

36. The weight to be placed on the character references presented by the Applicant then is slight if non-existent. More critically, the submission of patently fabricated material casts a very serious shadow over the credibility of the Applicant.

37. Finally, as the Instruction correctly points out, a character reference from a victim of domestic violence must be accepted with particular care.

    CONCLUSION

38. The Applicant is still only 27 years old. His conduct since arriving in Australia exhibits some of the traits of an immature and headstrong young man. The fact that his father passed away when he was young, and that he was separated from his mother and siblings when he was still a teenager, meant that he lacked parental guidance at a critical time in his life.

39. His extensive traffic infringement history demonstrates a pattern of disregard for the law. Of further concern is the lack of remorse for the consequences of his actions and his self-centred perspective.

40. This immature and headstrong personality is also highlighted by his lamentable history of fighting with his partner, Ms SA.  The evidence does not disclose that the Applicant is a violent man, but it does disclose that he lacked at the relevant time balance, maturity and self-control.

41. This pattern of behaviour is also evident in his unilateral seizing of the property of the person contracted to finish his perimeter fence. While his actions were most probably not criminal, they were certainly high handed and short sighted.

42. The tendering of references, at least one of which is most probably fabricated, also raises doubts about the Applicant.

43. Conversely, the Applicant’s history of traffic offences and domestic altercations appear to have changed significantly in the past twelve months.  There are grounds for accepting that he is turning his life around and is beginning to show maturity and responsibility. 

44. It is also in favour of the Applicant that he has a solid history of steady employment. He tendered a very positive reference from his current employer, and despite all of the problems he has been in, there has never been a suggestion that he has not been a good and solid employee.

45. There is nothing in this decision which would preclude the Applicant from lodging another application in due course. However, such an application would need to be made after the expiration of some time and only if the Applicant has no further domestic violence or other issues that would preclude the granting of citizenship.  The record of transgressions by the Applicant is too frequent and too recent for the Tribunal to conclude that he was at the time he made the application, or now, a person of good character for the purposes of the Act.

    DECISION

46. The decision under review is affirmed.

I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

......................[Sgd]..................................................

Associate

Dated: 5 May 2017

Date of hearing:	27 March 2017
Applicant:	In person
Advocate for the Respondent:	Mr M Hawker
Solicitors for the Respondent:	Sparke Helmore Lawyers