Rusanov and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2022] AATA 2548

Rusanov and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 2548 (12 August 2022)

Division:GENERAL DIVISION

File Number(s):       2020/4997

Re:MAXIM RUSANOV  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member R Bellamy

Date:12 August 2022

Place:Brisbane

The decision under review is affirmed

.................[SGD].................

Senior Member R Bellamy

CATCHWORDS

CITIZENSHIP – refusal of an application for Australian citizenship by conferral – section 21(2)(h) of Australian Citizenship Act 2007 – whether Applicant is of good character – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

Crimes Act 1914 (Cth)

Criminal Code Act 1899 (Qld)

CASES

Drake v Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634

Minister for Home Affairs v G [2019] FCAFC 79

Re Nguyen and Minister for Immigration and Border Protection (Citizenship)[2018] AATA 1082

SECONDARY MATERIALS

Australian Citizenship [Policy Statement] (1 January 2019).

Revised Citizenship Procedural Instructions (1 January 2019), CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member R Bellamy

12 August 2022

1. The Applicant is a 39 year old dual citizen of Russia and Belarus, who first arrived in Australia in September 2002 as the holder of a Tourist (Subclass 676) visa. He was subsequently granted a Temporary Protection followed by a Resolution status visa and a Resident Return visa. On 27October 2016, he applied for Australian citizenship by conferral.

2. On 6 August 2020 a delegate of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) refused the Application on the basis that the Applicant did not meet the good character requirements under subsection 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”). This followed some correspondence from the Respondent seeking further information and offering the Applicant the opportunity to comment on certain adverse information. On 18 August 2020, the Applicant sought review of that decision. The Tribunal has jurisdiction to review the decision under s 52(1)(b) of the Act.  

3. The hearing of this matter took place on 19 October 2021. The Applicant did not have legal representation. He gave evidence via video conference and a friend of his gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE SCHEME

4. Under s 21(1) of the Act, a person may make an application to the Minister to become an Australian citizen. Section 21(2) of the Act identifies applicable criteria that an Applicant must satisfy in order to be eligible to become an Australian citizen.

5. Section 24(1) of the Act provides that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Section 24(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under one of subsections 21(2) to (8) of the Act.

6. Subsection 21(2) of the Act relevantly provides that:

   A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (a)is aged 18 or over at the time the person made the application; and

   (b)is a permanent resident:

   (i)    at the time the person made the application; and

   (ii)    at the time of the Minister’s decision on the application; and

   …

   (h)      is of good character at the time of the Minister’s decision on the application.

7. Under s 24(2) of the Act, the Respondent may refuse to approve an Applicant becoming an Australian citizen despite being eligible to become so under subsections 21 (2), (3), (4), (5), (6) or (7). Section 24(1) of the Act confers a broad and unfettered discretion to approve or refuse an application made under s 21 of the Act.[1]

   [1]     Minister for Home Affairs v G [2019] FCAFC 79 at [64].

8. The term “good character” for the purposes of s21(2)(h) is not defined in the Act, but it is addressed extensively in the Australia Citizenship Policy Statement (“the Policy”) and the Citizenship Policy Instruction 15 - “Assessing Good Character under the Citizenship Act” (“CPI 15”). These are departmental policies that were not made under a legislative power but in an exercise of executive power. They are not binding but they should be applied unless there are cogent reasons not to.[2]

   [2]    Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, per Brennan J.

9. CPI 15 relevantly advises that 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, which is an objective assessment. It notes that a person who has been convicted of a serious crime may show that he or she has reformed and is of good character.

10. CPI 15 states that the phrase “enduring moral qualities” encompasses:[3]

    ·characteristics which have been demonstrated over a very long period of time;

    ·distinguishing right from wrong; and

    ·behaving in an ethical manner, conforming to the rules and values of Australian society.

    [3]     Exhibit T1, T Documents, page 229, CPI15.

11. It further notes that a person of good character would respect and abide by the law in Australia and other countries, be honest, be truthful, not practise deception or fraud in dealings with the Australian Government, and not be violent, involved in drugs or cause harm to others. The evaluation of a person's character requires a holistic assessment of the person’s aggregate qualities and their behaviour over a period of time. In relation to offences, CPI 15 states that, a significant amount of time may have to pass before a decision maker could be satisfied that an Applicant is of good character. A decision maker should also consider whether an offence was a “one off” or part of a pattern of demonstrated criminal behaviour.

12. It is apparent from the wording of s 21(2)(h) of the Act that it is not a question of whether a person is of bad character and therefore ineligible for citizenship. Rather, the question is whether a person is of good character, and therefore eligible for citizenship. It follows that, when all the relevant evidence has been considered, if there is doubt in the Tribunal’s mind about whether the Applicant is of good character, he cannot satisfy s 21(2) of the Act.   

    THE KEY ISSUES    

13. There are several matters that call the Applicant’s character into question. Indeed, in the hearing he admitted that, in the past, he was not of good character. However, he claimed to have changed for the better in recent years such that he is now of good character.

14. The Respondent contended that not only was the Applicant not of good character in the past, but he is not of good character presently. According to the Respondent, that is demonstrated by (among other things) the Applicant’s offending conduct over a lengthy period, his dishonest communications with the department about past criminal conduct and other misconduct, a recent episode where he allegedly damaged property and assaulted a person, and his apparent failure to grasp the seriousness of his previous offences and traffic infringements.

15. The Applicant has an extensive history of criminal offences and traffic infringements. There are also allegations that he was found in possession of false identity documents, that he failed to declare his convictions on numerous Incoming Passenger Cards (“IPCs”) and that he damaged property and assaulted a person (mentioned above).

16. The Applicant has changed his name twice since arriving in Australia. There is some doubt about his date of birth. An Identity Assessment Report done by the Department of Home Affairs, dated 16 June 2018, states that the Applicant was almost certainly born on a particular date, which is his date of birth according to a Belarusian birth certificate that he provided to the Department[4], although the Applicant claims a date of birth with the same day and year but a different month, and that date appears in Australian official documents. The report indicates that there is no evidence to suggest that the Applicant has ever attempted to mislead the Department with respect to his identity.[5] The Applicant’s name changes, his numerous overseas trips since arriving in Australia, and his protection claims were the subject of some enquiry in the hearing. His evidence about these matters was less than satisfactory. However, the focus of these proceedings was on the Applicant’s criminal offending, traffic infringements, possession of questionable identity documents, discrepancies in the information he provided to the Respondent and his attitude to his offending. 

    [4] Exhibit T1, T10, pages 72 and 75.

    [5] Ibid T10, page 77.

    BACKGROUND

17. According to the Applicant, after arriving in Brisbane on 3 September 2002, at some point he moved to Sydney and lived there for a short time before moving back to Brisbane in May 2004.[6]

    [6] Ibid T18, page 132.

18. On 1 December 2002, three months after the Applicant arrived in Australia, he was caught speeding by at least 30 km/h.[7]

    [7] Exhibit R3, page 4.

19. Two weeks later, he was again caught speeding by at least 30 km/h and he failed a breath test. His blood alcohol concentration (“BAC”) was 0.051. He was convicted of driving under the influence of alcohol in the Magistrates Court and disqualified from driving for one month.[8]

    [8] Ibid.

20. According to a Queensland Government webpage about drink-driving, a BAC of between 0.0 and 0.10 is considered low range, and a BAC of between 0.10 and 1.5 is considered mid-range.[9]

    [9] Being Charged with Drink Driving Information page, Queensland Government <>

    In November 2003 the Applicant applied for a Temporary Protection visa, claiming the Belarusian authorities had fabricated a charge against him because he was a student activist, and that his life was in danger in Belarus. He claimed to have fled the country while on bail, hoping that in his absence a lawyer could have the charge dismissed. In the application form, which he completed in English, he declared that he was competent in English and Russian, although he described his English as limited. 

21. In May 2004, the Applicant was again caught drink-driving, with a BAC of 0.131. He was convicted in the Magistrates Court and disqualified from driving for eight months. Less than two months later the Applicant was caught speeding.

22. On an unknown date between 1 January and 30 August 2004, the Applicant committed “forgery and uttering”, and on 30 August 2004, he attempted to dishonestly obtain property from another. These offences all arose from him opening a bank account and, after receiving account statements, forging alterations to them and providing them in support of an application for car finance in the amount $40,762.41.[10]

    [10] Exhibit R2, pages 36 to 39.

23. On 2 September 2004, the Applicant was caught in possession of ammunition. He was subsequently convicted or “exa authority required to possess explosives”. He told the Tribunal he had some bullets, having been a member of a pistol club, and he failed to keep them in a safe.[11]

    [11] Transcript of proceedings dated 19 October 2021, page 39, lines 39 to 48.

24. In September 2006, the Applicant was caught driving with a BAC of 0.132. He was convicted in the Magistrates Court and disqualified from driving for five months.[12]

    [12] Exhibit, R3, page 3.

25. On 10 October 2006 the Applicant committed the offence of “assume designation or description of police officer”. According to the Identity Assessment report, the Applicant was offloaded from a flight at the Gold Coast airport and questioned regarding his lawful status. He produced a fake identity document and attempted to impersonate a police officer.[13]

    [13] Exhibit T1, T10, page 74.

26. The Applicant failed to appear to face the charge arising from that conduct on 2 November 2006.

27. According to a very brief police report, on 29 April 2007, the Applicant was caught driving unlicensed and he gave the police a false address. No further details were included in the report.[14] The same day, the police executed a search warrant at the Applicant’s home. They found a pistol in the top drawer of a cabinet in the foyer inside the front door. The slide had a filled in barrel although a magazine containing five rounds was seated in the firearm. They also found a smoking utensil.[15] The pistol was described as an American service issue Colt 451.[16] The Applicant was subsequently convicted of unlawful possession of a weapon, possession of property suspected of having been used in the commission of a drug offence and “contravene direction or requirement”. In the hearing the Applicant said the property was a bong that did not belong to him.[17]  

    [14] Exhibit R2, page 24.

    [15] Ibid, page 23.

    [16] Ibid, page 24.

    [17] Transcript of proceedings, dated 19 October 2021, page 39, lines 39 to 48.

28. On 31 July 2007 the Applicant failed to stop at a red light. He was driving disqualified with a BAC of 0.118. The police report noted that when they intercepted the Applicant, he did not have any identification and he gave a false name and date of birth. He was charged with drink driving, disqualified driving and obstructing a police officer.[18] In January 2008, he was convicted in the Magistrates Court and sentenced to imprisonment for six months, to be suspended for four years after serving two months. He was also disqualified from driving for 18 months and fined. Separately, he received an infringement for failing to stop at a red light. He appealed the prison sentence and was granted bail. The appeal was ultimately dismissed in March 2009, and he was returned to prison to complete the balance of the two months.[19]

    [18] Exhibit R2, page 29.

    [19] Exhibit R3, pages 1 and 2; Transcript of proceedings dated 19 October 2021, pages 20 to 22.

29. On 6 October 2009, the Applicant completed an IPC. He answered the question “Do you have any conviction/s?” by ticking the box that said “No”. He made the same false statement on 11 subsequent IPCs in the years spanning 2010 to 2015.[20]

    [20] Ibid paragraph 28.

30. In March 2011 the Applicant was caught driving with a BAC of 0.13. He was convicted in the Magistrates Court and disqualified from driving for one month.

31. In the early hours of 30 May 2011, the police were called to a hotel room in relation to a domestic violence related assault. The Applicant told police it was “Just a drunken argument” and repeatedly told the police to ask the victim. She told the police “I got thrown from here to here” indicating with her hands from one side of the room to the other. She said her left shoulder, spine and lower back were sore and asked for an ambulance. An ambulance came but she refused to reveal how she sustained her injuries. She refused to make a statement. The Applicant declined to be interviewed, saying “Talk to my lawyer”. Both parties were under the influence of alcohol. The police notes said the Applicant had an extensive criminal history in QLD relating to organised crime. The police made an AVO application on behalf of the victim and charged the Applicant.[21] He subsequently pleaded guilty to common assault (domestic violence) and was fined.

    [21] Exhibit R2, pages 42 and 43.

32. The victim of that assault was the Applicant’s girlfriend whom he married on 28 December 2011.[22]      

    [22] Exhibit T1, T6 page 66.

33. On 17 December 2011 the Applicant was caught driving with a BAC of 0.078.

34. On 19 September 2012 the Applicant failed to appear in accordance with bail undertaking. A warrant was subsequently issued. He was eventually dealt with on 8 July 2015 after presenting himself to a police station. When the police asked why he had failed to attend court he said he was out of the country for business. He was questioned as to whether he was out of the country for the whole period and he said he was “in and out”.[23]  He was also dealt with for the drink driving offence from 2011: he was convicted in the Magistrates Court and disqualified from driving for six months. He was also convicted of disqualified driving and disqualified for two years.

    [23] Exhibit R2, page 18.

35. According to departmental records, on 9 November 2015 when the Applicant returned from overseas, he was in possession of a New Jersey drivers’ licence in the name of Dennis Orlov, date of birth 22 February 1981 (different to the applicant’s), issued on 18 April 2014, with a New Jersey address and a photo that resembled the Applicant’s passport photo. The licence was seized.[24] According to the Identity Assessment Report, when the Applicant was questioned about the driving licence he refused to respond until he had spoken to his lawyer.[25]

    [24] Exhibit T1, T8, pages 69 to 70.

    [25] Ibid T10.

36. On the morning of 27 February 2016, the Applicant was caught speeding by more than 40 km/h and drink driving. He told the police he was not aware of the legal level of alcohol consumption for a driver in Queensland and he would not have driven had he known that there was any possibility that he could be over the limit. He said he was on his way from his home to a raceway. His BAC was 0.105. He was convicted in the Magistrates Court, fined and disqualified from driving for three months.

37. Apart from a stay in Sydney that spanned some months between 2002 and 2004, the only State in which the Applicant has ever resided in Australia is Queensland. The drink driving offences mentioned in this decision are contained in the Applicant’s “Queensland Police Service Traffic Record”[26] indicating they were committed in Queensland. In the hearing, the Applicant said he could not recall making that excuse to the police. When asked if he would have said it to get himself out of trouble, he indicated that the police record might have contained a misinterpretation of his words.[27]

    [26] Exhibit R3.

    [27] Transcript of Proceedings dated 19 October 2021, page 86, lines 42 to 45.

38. According to the Applicant it was after this that he significantly reduced his alcohol consumption so that he hardly drank at all.[28]

    [28] Ibid, page 45, lines 21 to 24.

39. In addition to the driving offences to which I have specifically referred, the Applicant’s Queensland Police Service Traffic Record indicates that between 2002 and 2018, he was caught speeding nine times, he failed to stop at a red light twice, and he used a hand-held mobile phone while driving twice.  

40. In October 2016 the Applicant lodged an application for Australian citizenship by conferral. The application form contained several questions, followed by a section towards the end with declarations that the Applicant was required to adopt by appending his signature. One such statement was:

    “I declare that the information I have supplied in this form is complete, truthful and correct in every detail.”

41. One of the preceding questions was:

    “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, or any ‘spent’ convictions)?”

42. The Applicant ticked “Yes” to that question. The form indicated that if “Yes” was ticked, the Applicant was “required to give ALL relevant details”. In that section that Applicant wrote “See the enclosed Statutory Declaration”. In the enclosed statutory declaration, the Applicant disclosed some of his criminal history and none of his traffic history. The table below indicates which criminal offences the Applicant disclosed.

Offence	Date of Conviction	Disclosed
Attempt to dishonestly obtain property	22.11.2004	Yes
Forgery and uttering	22.11.2004	No
Exa authority required to possess explosives	22.11.2004	No
Unlawful possession of weapon	30.4.2007	Yes
Fail to appear	30.4.2007	Yes
Contravene direction	30.4.2007	Yes
Possess unlawful property	30.4.2007	Yes
Possess property suspected of having been used in connection with the commission of a drug offence	30.4.2007	No
Assume designation of police officer	2.5.2007	Yes
Obstruct police officer	31.1.2008	Yes
Common assault	29.6.2011	Yes
Failure to appear	8.7.2015	Yes

1. The statutory declaration included the following text:

   “I hope you will accept that the aforementioned offences are not very serious offences, that is:

   3.1. I was not confined to a prison (or in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in Australia).

   3.2. I am not a serious repeat offender in relation to a serious offences (e.g. offences which require prison sentences)..”

2. The Applicant’s citizenship application contained several false or misleading representations. First, whereas he was asked if he had been convicted or found guilty of any offences including traffic offences that went to court, and to provide details of all such offences, he did not declare any of the traffic offences that went to court. Second, whereas he was imprisoned for a traffic offence, he stated in the attached statutory declaration that he had he had not been confined to prison. When the latter was raised in the hearing, he said “So this was my mistake, yes.”[29] I do not accept that it was a mistake: when he made the statutory declaration he was well aware that he had served time in prison. Third, it follows that the declaration that the Applicant signed was false.    

   [29] Ibid, page 25, lines 7 to 8.

3. According to departmental records, on 6 February 2017, when the Applicant returned from overseas, he was found with a Finnish driver’s licence and a Finnish identity card in his possession. They were not seized because Border Force officers did not have a well-founded suspicion that the documents were bogus or counterfeit. However, there were serious concerns about the authenticity of the documents. The drivers’ licence was in the Applicant’s name with his date of birth. It purported to have been issued on 5 October 2011. The identity card was in the Applicant’s name with an incorrect date of birth – off by three days. The date of issue was 18 January 2011. No details were provided about the identity card.[30]

   [30] Exhibit T1, T7, pages 67 to 68.

4. According to the Identity Assessment Report when the Applicant was questioned about the documents, he said he would deal with the officer and the situation “with my lawyer or another way”.

5. In the hearing the Applicant objected to the New Jersey and Finnish licences being referred to as “drivers licenses” because he claimed they were mere souvenirs and obviously fake. I do not have any of the documents, or copies of them, before me so I cannot make my own assessment. However, it appears that the Border Force officers who examined the New Jersey and Finnish documents thought they looked enough like licenses and an identity card (respectively), albeit of questionable authenticity, to describe them that way.  

6. In February 2020, the Applicant submitted an application for a Resident Return visa. In that application, he stated:

   “I had a few drink driving offenses (medium and low range) in Australia years ago. I was also charged with other minor offenses many years ago (please find attached a national police certificate and explanatory letter).”[31]

   [31] Exhibit T1, T15, page 92.

7. The Applicant attached a National Police Certificate dated December 2019. This document did not include his traffic offences or infringements. In this application he again described his offences as “not very serious”.[32]

   [32] Ibid pages 96 to 97.

8. On 29 June 2020, the department invited the Applicant to comment on some adverse information that included:

   ·the full extent of his criminal history, his traffic history and his failure to make full disclosure of those things;

   ·the false statements on the IPCs; and

   ·his downplaying of the extent of his criminal history in his Resident Return visa application.

9. According to police records, on 30 June 2020 the Applicant damaged property and assaulted a person. He and a female known to him entered a lift at the Southport Central Residences. He pounded on the inside of the lift doors, making dents in the doors. At the car park level, they exited the lift and went into the car park through a glass door. The Applicant then returned to the glass door which had locked behind him and he kicked the door causing a hole in the bottom right corner. He continued to kick the door causing the entire pane of glass to smash. He then re-entered the lift lobby and entered a lift.

10. An employee of the building (who was apparently a security officer) was directed by building management to take up with the Applicant in relation to the damage. A scuffle ensued in which the security officer and the Applicant travelled downwards in the lift to the ground floor. The security officer then took the Applicant to the ground in order to restrain him and in the process the Applicant bit his left wrist. The police received a report of a male “going nuts” and struggling on the floor with security. The victim restrained the Applicant until the police arrived.[33] The police then took the Applicant the watch house. Multiple crews were required to safely transport him.

    [33] Exhibit R2, page 10.

11. The police notes indicate that the police had photographs of damage to the glass in the door and CCTV footage of the Applicant committing the offences. The security officer suffered a bite to his left wrist and scratches on his right forearm. The Applicant was granted bail by the police and required to attend court on 21 July 2020.[34]

    [34] Ibid pages 3, 4 and 11.

12. The police records contain a “withdrawal of complaint” form dated 3 July 2020. The form is witnessed but not signed. It indicates that there is no longer a wish to proceed with the complaint of assault occasioning bodily harm. The reason given is “I no longer wish to pursue the matter” and the form contains the text “This withdrawal of the complaint is made of my/our own free will and was not solicited or induced by any police officer”.[35] The charges did not proceed.

    [35] Ibid page 12.

    THE APPLICANT’S EVIDENCE

13. The Applicant has been found guilty by a court of drink driving on eight occasions. On one occasion, he received a sentence of imprisonment, which he unsuccessfully appealed, and he served two months of that sentence. The Applicant gave evidence about that in the hearing. He said he could not really recall the appeal because he was drinking and in “mid-depression” at the time, and he just followed his lawyer’s instructions. He did recall serving some time in prison, and that his lawyer lodged an appeal and got him out within two or three weeks but he had to return and finish his sentence.[36]

    [36] Transcript of proceedings dated 19 October 2021, pages 20 to 22.

14. The Applicant did not declare any of his traffic offences in his citizenship application or his Resident Return visa application. After the Respondent invited him to comment on this, he responded that he had forgotten about some of his traffic offences and that the vast majority were minor offences which did not go to court.[37].

    [37] Ibid, page 13 lines 5-15; page 24 - page 25. 

15. The Applicant was required to declare the offences that went to court. I do not accept that he forgot about all the traffic offences that went to court, particularly the one that resulted in a prison sentence. The citizenship application form did not indicate that the Applicant did not have to disclose offences that he considered to be minor, so his apparent belief that the offences were minor does not excuse his failure to declare them.  

16. In response to the invitation to comment on adverse information, the Applicant wrote to the Respondent in July 2020. With respect to his failure to disclose all his criminal convictions in his citizenship application, he said “I provided you with Police Certificates dated 28 June 2005 and 10 October 2008 where all (or some) of the mentioned offences have been recorded.” However, the citizenship application form did not refer to the inclusion of police certificates and none were attached to the application.[38]

    [38] Exhibit T1, T6, page 54.

17. With respect to the attempt to dishonestly obtain property in 2004 that the Applicant disclosed in his citizenship application, he failed to disclose the related forgery and uttering offence. He described his offending as “inaccurate documents (proof of income) while applying for a car loan”. I find this characterisation to be a deliberate attempt by the Applicant to mislead the Respondent about the seriousness of that offending. In the hearing the Applicant said:

    “I remember that I tried to get the car loan and give the wrong information about my - that I'm earning some money in Australia. I remember that, I was - I was so stupid to even think that this will be - I wasn't thinking to, like, to get the car from - and not to pay for it. I just wasn't able to support enough documents to be able to get the loan. But it was absolute stupidity, I understand that now.” [39]

    [39] Transcript of proceedings dated 19 October 2021 page 33, lines 25 to 30.

18. That characterisation also seeks to downplay the seriousness of the offending.  

19. The Applicant did not disclose the “exa authority required to possess explosives” offence of September 2004 in his citizenship application. In the hearing, he said he had put some bullets “in the drawer in the bedroom or something.”[40]

    [40] Ibid page 34, lines 21 to 24.

20. The Applicant gave vague evidence about the “assume designation or description of police officer” offence. He indicated that he was checking in for a flight at the airport, he was drunk, and he made a joke about a bomb. The airline staff member said he could not check in and that the police would be called. He responded that the police were already there – that he was the police. He said it was a stupid thing to do. He indicated this happened at check-in, not on board the plane (as was stated in the Identity Assessment report), although for present purposes the difference is not important. The Applicant denied having produced a fake identity document. The only evidence before the Tribunal that he did that is contained in the Identity Assessment report and the account lacks detail. I am satisfied that the Applicant verbally claimed to be a police officer.  

21. With respect to unlawful possession of a weapon, the Applicant claimed in his citizenship application that the pistol was a “replica (toy)” given to him as a gift as he was a member of a pistol club. In the hearing he said such a pistol could be freely purchased at a tobacconist. He said the bullets were also replicas. When he was asked what he was supposed to do with a replica pistol, he said “just hold it as a souvenir” like “the knives you put on the wall”.[41] When it was pointed out that the pistol was not on display, he said “It’s considered as a toy and it doesn't matter where you're holding your toy, you put it in the drawer or you can put it in your cabinet, it doesn't matter.” When asked how a replica gun is used as a toy, he said “just for show to the friends that you have…”. He denied having it to use to threaten or intimidate.[42]

    [41] Ibid page 37, lines 19 to 24.

    [42] Ibid page 38, lines 1 to 33.

22. The police report did not describe the pistol as a replica, but even if it was, its placement inside the front door suggests it could have been there to be used to intimidate, despite the Applicant denying that. The Applicant’s evidence about it being a toy or souvenir was unconvincing and does not allay my concerns about that.

23. With respect to “contravene direction or requirement”, and “obstruct police officer” three months later, the Applicant said in his citizenship application that he refused to obey a police officer's orders as he was of the view that the police officer acted inappropriately. That explanation appears to apply to both offences. The Applicant did not explain why he thought the police were acting inappropriately. Nor did he disclose that, with respect to the obstruct police, the police took action after he drove through a red light while under the influence of alcohol and disqualified from driving.[43] Given the obstruct police arose from the Applicant giving false identify information, it was put to him that it looks like he is dishonest when he is caught drink driving in an effort to get himself out of trouble. He agreed with that.[44] I think the Applicant’s comments about these two offences in his citizenship application sought to give the impression that they were justified. 

    [43] Exhibit T1, T6, page 64.

    [44] Ibid page 87, lines 20 to 25.

24. In his response to the invitation to comment in 2020, the Applicant indicated that with respect to the IPCs he had misunderstood the question and he believed that only criminal convictions overseas were to be disclosed, saying “as I have not been convicted or charged with any offences overseas I ticked ‘no’”. In the hearing he said he thought the question referred to overseas convictions because “Australian Border Patrol…obviously they know about all my convictions here and they check it”. He indicated that on his last trip he was told he had to include Australian convictions.[45] The Applicant’s evidence about this was unstable. He said he thought he was required to declare if “I was overseas have I commit any crime, if I have any charges when I was overseas, out of Australia”.[46] When it was put to him that he did have a charge against him overseas in Belarus, which was the basis for his protection claim, he said it was a long time ago before he came to Australia and it was a fake charge. When it was put to him that it was still a charge, he said:

    “No, no, it's not - I'm not consider this as a charge because this was made up and that's why I needed to escape and this was a persecution for my political view.  So it wasn't the charge. These charges was being made up.”[47]

    [45] Ibid page 77, lines 11 to 19.

    [46] Ibid page 77, lines 19 to 24.

    [47] Ibid page 77, lines 36 to 40.

25. The Applicant then indicated that he thought the question was aimed at convictions or charges incurred during an overseas trip “When I'm travelling out of Australia for the period of time when I'm coming back”.[48] That is a narrow, artificial interpretation of a wide question. Given the wording of the question, I do not accept it could reasonably be read that way, so I am very doubtful that the Applicant did read it that way.

    [48] Ibid page 78, lines 16 t0 25.

26. In relation to the Common Assault (Domestic Violence) offence, the Applicant included a letter from his wife in his citizenship application. The letter is dated 12 March 2016 and it states:

    “On 29 June 2011 the ‘common assault’ matter was heard in Downing Centre, Sydney. Prior to that, on several occasions, I had asked the prosecutor and police officers to withdraw the matter. I said my husband and I were drunk during the argument, that my behaviour was also inappropriate and that my partner did not assault me. I said I did not call the police and did not write any statement. I was told that ‘it was not up to me to withdraw the case from the court’. The matter proceeded and my husband was fined $550.”[49]

    [49] Exhibit T1, T6, page 66.

27. In the hearing the Applicant denied having assaulted his wife and he said she tried to withdraw this matter the next day when they had both calmed down and were sober. He said it had just been a drunken argument. He claimed his wife had tried to hurt him and he was defending himself. His wife then tried to hurt him by calling the police.[50] The Applicant said he pleaded guilty because somebody at the courthouse told him he would get a fine and it would be much cheaper and quicker to plead guilty. It was put to the Applicant that his evidence about why he pleaded guilty to an assault he believed he did not commit seemed strange given he had previously appealed against a penalty. He said the incident happened in Sydney and it was explained that it would be expensive to come back from the Gold Coast where they lived “and it's just easier to…take the penalty and pay the fine and be free to go.”[51]

    [50] Ibid page 15, lines 19 to 25.

    [51] Transcript of proceedings dated 19 October 2021, page 23, lines 23 to 29.

28. When asked if he had an opinion at the time about whether he would have been successful had he gone to trial, given both he and his wife denied he had assaulted her, the Applicant said it would have hurt his wife and him, and it was easier to just give up and pay the fine instead of going to the trial in Sydney and paying lawyers.[52] The Applicant also denied any links with organised crime.[53]

    [52] Ibid page 23, lines 35 to 43.

    [53] Ibid page 19, lines 1 to 25.

29. There were two witnesses to what occurred in the hotel room, being the Applicant and his wife. There were also police officers who presumably would have given evidence about their observations and what the parties told them. The matter does not seem any more complicated than that. I find it implausible that the Applicant thought it was preferable to plead guilty to an assault he did not commit because of the expected cost and inconvenience of defending the charge. I am not prepared to make a finding that is inconsistent with the Applicant’s conviction for Common Assault (domestic violence). I accept that the Applicant assaulted his wife.      

30. In his response to the invitation to comment on the fake drivers’ licenses, the Applicant said:

    “The US and finish (sic) ‘drivers licences’ taken from my bag by officers at the airport were bought in China in a market as souvenirs. I have never stated that these drivers licences were genuine ones. I have never use them as driving documents. Moreover, during the course of the border security interview at the airport, I stated that the ‘documents’ were souvenirs. Indeed they were of poor quality, there were no (sic) any common security features usually found on identification cards (such as holograms, watermarks etc). I did not disclose the information to the department in my citizenship application because I had already disclosed that these ‘documents’ were not genuine to the border security officers and I do not understand why the police sent these ‘documents’ overseas for verification.”[54]

    (Emphasis added)

    [54] Exhibit T1, T21, page 167.

31. In his application to the Tribunal, he repeated that the drivers’ licenses were bought in China as souvenirs and had never been used.[55]   

    [55] Ibid, T2, page 10.

32. The obvious question that arises is – how is a fake driving license a souvenir? Further, how are Finnish and New Jersey identification documents souvenirs of a stay in China? In the hearing the Applicant claimed the New Jersey license was a joke as the surname is the surname of a Russian character in a movie and the joke was that the Applicant is related to that character.[56] He did not explain how that was humorous.

    [56] Transcript of proceedings dated 19 October 2021, page 69.

33. The Applicant claimed he was given both licenses by friends, but when asked where he was when he was given each license, he said he could not remember.[57] The Applicant was questioned extensively about where and when he obtained the licenses. He indicated that he obtained each one when he was returning to Australia prior to it being discovered in his possession. The Applicant had previously provided chronological lists of overseas travel to the Respondent. Attempts to use the declared travel to establish where he got each license failed as the travel that he declared was incomplete and he could recall the places where he had stopped over on trips.[58] (The Applicant had noted when he declared his travel that he could not recall all of it).

    [57] Ibid page 70, lines 9 to 39.

    [58] Ibid pages 70 to 75.

34. There is no evidence that the Applicant ever tried to use the Finnish documents, which were not seized, in Australia. However, it is fanciful that the Applicant would have been given fake Finnish identity documents and a fake USA identity document, by friends as souvenirs, whether all at once or in separate trips. His shifting, uncertain explanations did not help.  I do not accept that the licenses and the identity document were mere souvenirs or were gifts from friends. I find that the Applicant deliberately acquired fake identify documents, and that raises a question in my mind about whether he did so for a dishonest purpose.     

1. With respect to the damage property and assault charges from 2020, the Applicant accepted that he did damage property as it is described in the police records. He said he was in deep depression and stressed because of things that were happening in his life, he was not sleeping normally, he was having bad headaches and he was on painkillers that were reacting badly with his antidepressant medication. He claimed he had a panic attack and when he woke the security officer was sitting on him, holding him down. He could not breathe. He acted in self-defence.[59] His evidence about this is reminiscent of his evidence about the incident involving his wife - that she attacked him and he was defending himself.

   [59] Transcript of proceeding dated 19 October 2021, page 48 and page 49, lines 1 to 10.

2. The Applicant claimed that some weeks afterwards, after doing their investigation, the police told him they were dropping the charges and invited him to “put the charges against the security guy”.[60]

   [60] Ibid page 50, lines 25 to 30.

3. The Applicant disclosed that he spoke with the building’s management, and he told them the police had invited him to “put the charges against the security”, and they responded:

   “We don't want to proceed with this as well…Just let's forget about it. Don't go to the - don't go with the charges against the security and we'll take off the charges for the unlawful damage.”[61]

   [61] Ibid page 50, lines 40 to 47.

4. The Applicant denied that this was a threat to get them to withdraw the charges against him.[62] He also said the police account indicated that he was the aggressor because that is what the security officer told them.[63]  

   [62] Ibid page 51 and page 52 lines 1 to 10.

   [63] Ibid page 53, lines 24 to 30.

5. In the Applicant’s closing submissions, he said his visit to building management was not to threaten them: it was to fix the damage to the door and apologise for it. He went to talk about how to fix the broken door, and the glass door was ordered the next day. He explained to them what was happening and that “when we get the CCTV footage and the police investigated that, they will find me not guilty.”[64] This indicates that the Applicant spoke with building management very soon after the incident - before they had arranged to fix or replace the door - and that he forecast that he would be found not guilty and raised the possibility of making a complaint about the security officer. This differs from the evidence he gave earlier that the police told him after they had investigated that they were dropping the charges and invited him to make a compliant about the security officer.

   [64] Ibid page 116, line 45 to page 117, line 8.

6. The police records, which are contemporaneous and not solely based on what the security officer told them, indicate that the Applicant damaged property, was out of control, assaulted a security officer who used force to subdue him, and that it required several police crews to transport him. On his own evidence, the Applicant did not know what happened between damaging the door and waking up with the security officer holding him down. The police evidence mentions nothing about subsequent investigations revealing wrongdoing by the security officer or self-defence on the Applicant’s part. Nor does it indicate that the police decided to drop the charges. Rather it indicates that three days after the incident, the complainant withdrew the complaint. I am satisfied, on the basis of the police records, that the Applicant unlawfully assaulted the security officer. I am also satisfied that the charges did not proceed because the compliant was withdrawn, not because the police decided to drop the charges following further investigation. I think it is likely that the complaint was withdrawn because the Applicant made a thinly veiled threat to the building management that he would make a complaint about the security officer. 

   CHARACTER REFEREES

7. Several people who know the Applicant wrote letters of support that spoke positively about the Applicant. Those referees either failed to acknowledge the Applicant’s criminal offences or understated it, for example that the Applicant “did have certain incidents making a few mistakes.”[65] None of the referees appear to have detailed knowledge of the Applicant’s offending and traffic history.[66] As his offending and traffic history are relevant to any assessment of the Applicant’s character, I give very limited weight to these character references. 

   [65] Exhibit A6, Letter from Olga Millar dated 16 February 2021.

   [66] Transcript of proceedings dated 19 October 2021, pages 81 to 84.

8. A Mr Volonsky gave evidence in the hearing and I found him to be candid and measured in his evidence. He has known the Applicant for over 18 years. According to him the Applicant “used to be really bad person…in terms of complying with law”. He was aware of the drink driving and problems with the police. He said the Applicant had mental problems. Mr Volonsky said that as far as he was aware, over the past four years the Applicant had not had any problems with alcohol. He asked for the Applicant to be given a chance to show that in the last three or four years he has dramatically changed his personality, his behaviour and his way of life. He said he thinks the Applicant is a different person now. Mr Volonski was of the belief that, with respect to the incident in June 2020, the security officer started the “struggle” and he did not think it was violent. He understood, from what the Applicant told him, that the security guard attacked the Applicant first.[67] I give some weight to Mr Volonski’s evidence. However, it appears that Mr Volonski’s beliefs about the June 2020 incident are solely based on what the Applicant told him. That tends to undermine his evidence that the Applicant is a different person now.    

   [67] Transcript of proceedings dated 19 October 2021, pages 101 to 102.

   CONSIDERATION

9. The Applicant expressed regret over his offending behaviour and indicated that he has completely reformed. He has not incurred a traffic infringement in three years and he barely consumes alcohol. He is having treatment for his mental health. The most recent traffic infringement was speeding in 2018 and the most recent drink driving was in 2016. Taking into account Mr Volonski’s evidence, I am inclined to accept that the Applicant has significantly reduced his alcohol consumption in recent years.

10. However, there are some matters that render it impossible for me to form a belief that the Applicant is of good character, and I will address them in turn.

11. First, the Applicant has a long history, starting very soon after he arrived in Australia, of breaking the laws and the road rules of the Australian community. Some of the offending is serious, including the fraud in 2004, the drink driving offences that were combined with speeding or going through a red light between 2002 and 2016, and the assault on his wife in 2011. While he was not convicted of the property damage and assault on the security officer, I am satisfied that he did those things. Further, the Applicant has engaged in some questionable conduct over the years such as the placement of a replica pistol in a drawer inside his front door in 2007, his acquisition of what appeared to be identify documents where those identity documents were not genuine in 2015 and 2017, and the conversation he had with the management of the Southport Central Residences after being charged with damaging their property and assaulting their security officer.   

12. Second, the Applicant has a history of deciding when he is prepared to comply with law enforcement and what information he discloses on official forms which suggests a lack of respect for law enforcement and government administration. There are somewhat dated examples of dishonesty such as the fraud in 2004, and the false information he gave to the police about his identity in 2007. However, there are more recent examples such as his omission of his traffic offences on his citizenship application in 2016 and the excuse he put forward for that omission in 2020. His evidence to the Tribunal sought to misrepresent the seriousness of some of his conduct. 

13. The Respondent drew the Tribunal’s attention to the following passage from a decision of this Tribunal by SM Puplick in Re Nguyen and Minister for Immigration and Border Protection (Citizenship):[68]

    “Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.

    Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.”

    [68] [2018] AATA 1082 at [82]- [83]

14. I respectfully agree in relation to both points: I do not think the applicant has demonstrated sound ethics in his dealings with government (and otherwise) and the false statements in his citizenship application cannot be excused.  

15. Relevant to the two concerns I have canvassed, it is not the case that a significant amount of time has passed where the Applicant has demonstrably been of good behaviour. My third concern is that a person of good character would recognise that the Applicant’s criminal and traffic history is serious, however the Applicant did not, referring to the offences contained in the National Police Certificate as “minor offenses” and “not very serious” and the vast majority of his traffic offences as “minor”.   

16. In the hearing, it was put to the Applicant that his expressions of regret for his offending were not genuine given his attitude that the offending was not serious. He said he now realised the offending was serious because of the way it was affecting his citizenship application. When asked if he accepted that it was a very serious matter to be drink driving and not stopping at red lights, he said “Of course it is, now I understand that”. The Applicant’s evidence indicates that he now realises that the Australian government considers his offending to be serious. That is not the same as believing, himself, that his offending is serious. The Respondent suggested to the Applicant that it might be suggested that his apology for his offending was not genuine but made to support his application, and I think there is something in that, although the Applicant did not agree.

17. Following the hearing the Applicant sent an email to the Tribunal on 1 November 2021[69] offering an explanation of this characterisation of his offending history. He said when he described his criminal history as not serious, he meant that according to Australian or state law a serious offence means an offence that is punishable by a maximum penalty of imprisonment for life or five or more years, and he referred to the definition of “serious offence” in s 23WA of the Crimes Act 1914 (Cth) (“Crimes Act”). As the Applicant did not have legal representation in these proceedings, I think it is fair to take a flexible approach in terms of giving him an opportunity to present his case, so I have regard to the contents of his email. However, the explanation he put forward does not assist his case. The definition he referred to is not a general definition: it is contained in a part of the Crimes Act, being Commonwealth legislation, that deals with forensic procedures. The offences the Applicant committed were against State, not Commonwealth law. The Applicant did not explain why he thought s 23WA of the Crimes Act was relevant to the offences he committed, and I do not accept that he did think that. I do not accept that he described his criminal and traffic history as “not very serious” and “minor” because he thought that, as a matter of law, none of the offences he committed were serious.  

    [69] Exhibit A11.

    CONCLUSION

18. To decide in the Applicant’s favour, I must be satisfied that he is of good character. I am not satisfied that the Applicant has demonstrated enduring moral qualities. I am not satisfied that he has, over a long period of time, behaved in an ethical manner, conformed to the rules and values of Australian society, or been consistently honest in his dealings with the Australian Government. He has engaged in two episodes of violence, one quite recent. His failure to appreciate the seriousness of his offending indicates some difficulty distinguishing right from wrong. I am not satisfied that the Applicant is of good character.   

19. In making this decision, I have not disregarded the Applicant’s evidence that his mental health contributed to his offending. In his response to the Respondent’s invitation to comment on adverse information he attributed his history of offending to depression and alcohol abuse as a result of his “traumatic experience in Belarus and breakdown of [his] former relationship”[70]. In July 2020, he said he had abused alcohol and suffered from depression for a long time and he now accepts responsibility for the “bad things” he did. In his application to the Tribunal, he attributed his incomplete disclosure of information to prolonged depression and overuse of alcohol affecting his memory. In the hearing, he attributed the damage property offence to his mental health and medications he was taking. He also agreed that he had a serious anger management problem, which he said he was working on.

    [70] Exhibit T1, T21, page 168, paragraph 6.

20. I do not accept that mental health issues and an alcohol problem can explain the wide-ranging offending and questionable behaviour engaged in by the Applicant or his failure to appreciate the seriousness of this offending. In any event, while I accept that he no longer abuses alcohol, according to letters from the Applicant’s treating psychologist, put forward by the Applicant, his mental health issues remain unresolved.   

21. The Applicant’s treating psychologist is Olena Lysychka. In a letter dated 14 January 2022[71] she indicated that the Applicant commenced psychological treatment with her in September 2020. Administration of the Depression, Anxiety, and Stress Scale-42 (“DASS-42”) indicated that the Applicant was experiencing extremely severe levels of depression, anxiety and stress. Ms Lysychka noted various symptoms reported to her by the Applicant and opined that these, together with the DASS-42 assessment, met the criteria for Depression and Anxiety disorder. She said the Applicant also had symptomology of Post Traumatic Stress Disorder (“PTSD”). The Applicant told her he had suffered from depression since around 2002-2003 and attributed it to past traumas related to persecution, fear for his mother left in Belarus, challenges associated with living in a new country without sufficient support, and a traumatic relationship and breakup with his ex-partner. He said he did not realise he had depression until last year and that he had tried to overcome his depression by drinking alcohol. He said he gave up drinking four years previously but there was just one instance in June 2020 when he could not cope and got drunk when he found out a good friend had died in Belarus. I note here that June 2020 is when the incident at the Southport Central Residences occurred, but in the hearing the Applicant did not say he was drunk, he said he was taking incompatible medication. Ms Lysychka indicated that by the end of December 2020, the Applicant had completed 20 sessions of psychotherapy and made progress regarding his levels of depression, anxiety and adjustment to stress. She said his prognosis was positive and that he reportedly felt much better. She mentioned that the Applicant’s wife and children were stuck in Russian due to Covid-19 related restrictions.

    [71] Exhibit A5.

22. In another letter, dated 16 August 2021, Ms Lysychka reported, among other things:

    ·the Applicant had symptomology of PTSD and general anxiety disorder;

    ·a DASS-42 administered in June 2021 indicated that the Applicant was experiencing extremely severe levels of depression, anxiety and stress;

    ·in that day’s session, the Applicant looked withdrawn, pale and tired, there was a lot of confusion in his judgements, he had a hard time focusing, his ability to concentrate was very poor and his memory was not good;

    ·his mental health had significantly deteriorated since 25 June 2021, and the deterioration could be explained by his mother having been hospitalised overseas with COVID, him being in isolation for some time without the help and support of friends, and his children and partner being in Russia; and

    ·she recommended that the hearing scheduled in this matter for 17 August 2020 be postponed for at least a month to ensure procedural fairness as the Applicant lacked the mental capacity to conduct legal proceedings at this time.[72]

    [72] Exhibit A10.

23. In the hearing the Applicant said he felt much better as his psychologist had given him a program which was really helping.[73] He later said “sometimes it's getting better, sometimes it's getting worse” and:

    “I still have that mental problem yes but they're getting better. But I don't have any problem with the law. Almost been like, for what, for five years, I don't have any problem with the law compared to what I had before.”[74]

    [73] Transcript of proceedings dated 19 October 2021, page 55, lines 15 to 20.

    [74] Ibid page 55, lines 29 to 34.

24. The Applicant’s mental condition is evidently not stable, and he continues to need treatment. 

25. The decision under review is affirmed.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

..........................[SGD].................................

Associate

Dated: 12 August 2022

Date(s) of hearing:	19 October 2021
Applicant:	By video conference
Solicitors for the Respondent:	Mr Matthew Hawker

EXHIBIT REGISTER

File No      2020/4997

Between     MAXIM RUSANOV (Applicant)

Self-Represented

AndMINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (Respondent)

Represented by Mr Matthew Hawker (Sparke Helmore)

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 37 T Documents (T1 to T26 paged 1 to 247)	R	-	6 October 2020
A1	Letter from Arthur Volonski (2 pages)	A	3 January 2021	19 February 2021
A2	Letter from Ruslana Volonski (2 pages)	A	3 January 2021	19 February 2021
A3	Letter from Daniel Sharp (1 page)	A	16 February 2021	19 February 2021
A4	Letter from David Andraos (undated) (1 page)	A	-	19 February 2021
A5	Letter from Olena Lysychka, Psychologist (2 pages)	A	14 January 2021	19 February 2021
A6	Letter from Olga Millar, Accounts Express (2 pages)	A	16 February 2021	19 February 2021
A7	Letter from Scott Millar (1 page)	A	16 February 2021	19 February 2021
A8	Letter from Irina Bruk, Honorary Consul- General Russian Federation (2 pages)	A	17 February 2021	19 February 2021
A9	Letter from Dr William Braun (General and Bariatric Surgeon & Upper and Lower Gastrointestinal Endoscopist)	A	19 February 2021	19 February 2021
A10	Further Letter from Olena Lysychka, Psychologist (2 pages)	A	16 August 2021	17 August 2021
A11	Applicant’s Post-Hearing Submissions by email	A	1 November 2021	1 November 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 10) including Annexures: 1.    Australian Citizenship [Policy Statement] (1 January 2019). 2. Revised Citizenship Procedural Instructions (1 January 2019), CPI 15 – Assessing Good Character under the Citizenship Act	R	28 April 2021	28 April 2021
R2	Respondent’s Tender Bundle (R1 to R3, paged 1 to 48)	R	-	28 April 2021
R3	Applicant’s Traffic Records	R	-	16 August 2021
R4	Applicant’s Movement Records	R	-	19 October 2021