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

Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4077 (4 November 2021)
Division:GENERAL DIVISION
File Number(s): 2020/6659
Re:Richard Andrew Smith
APPLICANT

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

DECISION
Tribunal:Member Dr C Huntly
Date:04 November 2021
Place:Perth

The reviewable decision, being the decision of a delegate of the Respondent dated 20 October 2020 to refuse the Applicant’s application for Australian citizenship by conferral, is affirmed.
..........[Sgd]...........................
Member Dr C Huntly
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship by conferral – whether Tribunal satisfied applicant was of good character – applicant is a 56-year-old man who came to Australia in 1995 using an assumed identity – failure to provide requested information – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 24, 51
Migration Act 1958 (Cth) s 234(1)(a)
CASES
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
Fang And Minister for Immigration and Border Protection [2018] AATA 3686
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Nguyen and Minister for Immigration And Border Protection [2018] AATA 1082
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
VFWQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4849
Yuen Jung v Barber 184 F 2D 491 (9th Cir, 1950)
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy (1 June 2016) – Ch 11
Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019) – CPI 15
REASONS FOR DECISION
Member Dr C Huntly
04 November 2021
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent to refuse to approve the Applicant becoming an Australian citizen. The delegate refused the Applicant becoming an Australian citizen by conferral, (on the basis that the Applicant was not of good character) for the purposes of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act).
BACKGROUND
The following facts are drawn from the Respondent’s Statement of Facts, Issues and Contentions dated 11 June 2021 (Respondent’s SFIC).
The Applicant was born in 1965 and was a national of the United Kingdom from birth, given name Richard Andrew SMITH.[1] According to Departmental records, he arrived in Australia lawfully on 21 August 1990 as the holder of a Working Holiday (subclass T18) visa. The Applicant then lawfully departed Australia on 3 February 1991.[2]
[1]T5/23; T12/40; T23/99; T23/101.
[2]T18/71; T23/99; T23/101.
On 22 April 1995 the Applicant re-entered Australia using a passport bearing the assumed identity of [assumed identity], born [date] in [place], New Zealand. Upon arrival, the Applicant was granted a Special Category (subclass 444) (New Zealand Citizen) visa. Thereafter, the Applicant continued to use this assumed identity, until he changed his name on 7 April 1997 to Richard Andrew SMITH, by Deed Poll in Western Australia.[3]
[3]T4/11.
In 2002 the Applicant obtained a further (second) New Zealand passport, this time in his changed name of Richard Andrew SMITH, relying on his previous New Zealand passport which had been issued under his former assumed identity.[4] The Applicant departed and re-entered Australia on his second New Zealand passport on four subsequent occasions prior to June 2005. On each occasion that the Applicant arrived in Australia, he was re-issued a Special Category (subclass 444) (New Zealand Citizen) visa.
[4]T5/23; T7/29; T12/40; T18/71; T23/99; T23/101.
On 8 July 2005 the Applicant applied for Australian citizenship by conferral (the first citizenship application).[5] In the first citizenship application the Applicant recorded:[6]
(a)his name as Richard Andrew Smith (having changed it from [assumed identity] by Deed Poll);
(b)his date of birth as [date];
(c)his place of birth as [place], New Zealand;
(d)that he was a New Zealand citizen; and
(e)his parents as [GN] and [EL], both having been born in New Zealand.
[5]T4/11–20.
[6]T4/11–13.
The Applicant also signed the declaration at question 50 of the application form, confirming that:
“I hereby declare that the information I have supplied in this form is complete and correct in every detail”.[7]
[7]T4/17.
Pursuant to the first citizenship application, the Applicant acquired Australian citizenship on 21 September 2005.[8]
[8]T6/25.
On 26 July 2006, the Applicant was stopped when attempting to depart Australia using his New Zealand passport.[9] He was subsequently charged with one count of “causing a false passport to be presented to a Commonwealth Officer for the purpose of entering Australia contrary to s 234(1)(a) of the Migration Act 1958 (Cth)”.[10]
[9]T18/71; T23/99; T23/101.
[10]T8/30.
On 1 December 2006, the Applicant pled guilty to this charge in the Perth Magistrates Court. A conviction was recorded against him and he was fined an amount of $1,650 (the false document conviction).[11] On 3 April 2007, the Applicant was advised that, pursuant to the false document conviction, the Minister may exercise his discretion to revoke the Applicant’s Australian citizenship by conferral.[12]
[11]Respondent Tender Bundle (RTB)/1-5.
[12]T8/30.
On 19 September 2007, the Applicant was notified that the Minister had exercised his decision to revoke the Applicant’s Australian citizenship by conferral, because the Minister had formed the view that it was no longer in the public interest for the Applicant to hold Australian citizenship by conferral Following the Minister’s decision, the Applicant automatically became the holder of an ex-citizen visa and presently holds a Resident Return (subclass 155) visa.[13] The Applicant did not subsequently apply to the Administrative Appeals Tribunal (the Tribunal) for an independent review of the Minister’s decision.
[13]T8/30.
On 20 January 2019, the Applicant lodged a further application for Australian citizenship by conferral.[14] In this application (the second citizenship application) the Applicant recorded:
(a)his name as Richard Andrew SMITH;
(b)his date of birth as [date];[15]
(c)his place of birth as [place], United Kingdom;[16]
(d)his mother as [ED](born in the United Kingdom);[17] and
(e)a declaration of the false document conviction.[18]
[14]T12/39.
[15]T12/40.
[16]T12/41.
[17]T12/44-45.
[18]T12/49.
On 20 October 2020, a delegate of the Minister made the decision to refuse the second citizenship application, as they were not satisfied that the Applicant was a person of good character at the time of the decision, as required by s 21(2)(h) of the Citizenship Act (the Reviewable Decision).[19]
[19]T23/103-107.
On 27 October 2020, the Applicant lodged an application for review of the Reviewable Decision with the Tribunal,[20] pursuant to s 52(1)(b) of the Citizenship Act, which allows applications to be made to the Tribunal for review of a decision to refuse to approve Australian citizenship under s 24 of the Citizenship Act.
[20]T2/4.
ISSUE
The issue for review by the Tribunal is whether the Tribunal is satisfied as to the Applicant’s good character for the purposes of s 21(2)(h) of the Act.[21]
LEGAL FRAMEWORK
[21]Respondent’s SFIC [15].
Legislation
The Preamble to the Citizenship Act states that:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)by pledging loyalty to Australia and its people; and
(b)by sharing their democratic beliefs; and
(c)by respecting their rights and liberties; and
(d)by upholding and obeying the laws of Australia.
Section 21 of the Citizenship Act sets out the general provisions for the making of applications and eligibility for citizenship.
Section 21(2)(h) provides that a person is eligible to become a citizen if the Minister is satisfied that the person “is of good character at the time of the Minister's decision on the application”.
Section 24(1) of the Citizenship Act provides:
Minister's decision
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 24(1A) of the Citizenship Act provides:
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
By operation of s 24(1A), the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied that the person “is of good character at the time of the Minister's decision on the application”, that being the requirement of s 21(2)(h) referred to in para [18].
Policy
The meaning of good character
The term ‘good character’ is not defined in the Act. The Tribunal is however assisted by the Australian Citizenship Policy (1 June 2016) (the Policy) and the Revised Citizenship Procedural Instructions (1 January 2019) (the CPIs).[22]
[22]The Revised Citizenship Procedural Instructions were published on 1 January 2019 to support the function of the Australian Citizenship Act 2007 (Cth).
As established in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[23]
[23]Drake, 645. The legal principles applicable to Tribunal’s task when considering the operation of 21(2)(h) of the Citizenship Act are also explained clearly by Senior Member Dr Evans-Bonner in VFWQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) [2020] AATA 4849 [39]-[54].
‘Good character’ is defined in ch 11 of the Policy:[24]
[24]The Policy pp 136–7.
“Good character” refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship …
The term “good character” is not defined in the Act. Therefore, the Federal Court and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; at (431-432):
Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
In this context, “moral” does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
·     characteristics which have been demonstrated over a very long period of time
·     distinguishing right from wrong
·     behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
(Emphasis added).
The Policy further provides that an Applicant of good character would, among other things:
·     respect and abide by the law in Australia and other countries
·     be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·     be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
·     providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
·     involvement in bogus marriage
·     concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
·     involvement in Centrelink or Australian Tax Office fraud
·     giving false names and/or addresses to police
·     not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·     not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·     not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·     not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·     not be the subject of any extradition order or other international arrest warrant
·     not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·     not be the subject of any verifiable information causing character doubts.
(Emphasis added).
Chapter 11 of the Policy provides the following guidance on the Tribunal task of weighing up the character decision:
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. Decision makers should place more weight on significant offences.
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.
In Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 (at [7]), the AAT said:
“a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”
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.
(Emphasis added).
The CPIs set out a number of factors that may be taken into account when assessing whether an Applicant is of good character, including the Applicant’s behaviour in his or her interactions with government officials, as follows (CPI 15, Item 4.7):
The Australian community expects that persons in Australia will abide by Australian laws. This includes providing correct information when seeking a government benefit or service.
It is relevant to consider whether the applicant has been honest in dealings with the Department. Decision-makers should consider all of the applicant’s interactions with the Department, including visa and citizenship applications.
…
If the applicant has knowingly presented incorrect information or a bogus document, this may reflect on the person’s character. If the applicant presents the incorrect information or bogus document unknowingly, there would be no ground for character concern.
(Original emphasis.)
The premise of CPI 15 is that an applicant of good character would, inter alia, respect and abide by the law in Australia, be honest, not practise deception or fraud in dealings with the Australian Government, not be violent and not cause harm to others through their conduct.[25]
[25]CPI 15 [4].
CPI 15 prescribes that a decision-maker should consider whether an applicant has committed an offence that is “serious” in assessing whether they are of good character. After being convicted of an offence, a significant amount of time may have to pass before a decision maker can be satisfied that an applicant is of good character.
A decision-maker should also consider whether an applicant’s offence was a “one off” occurrence or whether it was part of a pattern of demonstrated criminal behaviour.[26] A pattern of criminal behaviour over an extended period, even of repeated minor offences, shows a disregard for the law and may support a finding that the applicant is not of good character.
[26]CPI 15 [14].
CPI 15 also prescribes that a decision maker should have regard to relevant mitigating factors including:[27]
(a)whether the applicant is of good character despite particular adverse information;
(b)the length of time between the offending and conviction;
(c)the applicant’s remorse and acceptance of responsibility;
(d)the applicant’s age at the time of offending;
(e)whether there were any extenuating circumstances relating to the offence; and,
(f)any other evidence of good character at the time of the decision.
[27]CPI 15 [14.1].

To further assist decision-makers, CPI 15 also provides a framework for an assessment of character for the purposes of s 21(2)(h) of the Citizenship Act. Decision-makers should consider:[28]
(a)whether a person of good character would have behaved the way the applicant did;
(b)what evidence is available to demonstrate that the applicant has upheld and obeyed the law;
(c)whether the applicant has behaved in accordance with Australia’s community standards;
(d)whether the applicant shares Australia’s democratic beliefs and respects its rights and liberties.
(e)whether the applicant has taken steps to rehabilitate or change their lifestyle and become a person of good character; and
(f)whether there are any other factors relevant to an assessment of the applicant’s character.
[28]CPI 15 [14.2]; the Policy ch 11.
In weighing up the evidence to assess an applicant’s character, a decision-maker should look holistically at the applicant’s behaviour over a lasting (or enduring) period of time.
In Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082

at [82]–[84], Senior Member Puplick emphasised the importance of Applicants being truthful:
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.
Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort [sic] to placing themselves in the hands of deceitful third parties.
(Emphasis added and footnotes omitted.)
Further, in Fang and Minister for Immigration and Border Protection [2018]
AATA 3686 at [97], Senior Member Puplick made the following comment about the need for an Applicant to be truthful about their identity:
…those, who are not citizens and who are seeking to do so, must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement – applicable indeed, equally to citizens and non-citizens alike
(Emphasis added.)
Both of the above relevant authorities and the Policy make it clear that:[29]
(a)a person can fail to establish that they are of good character even if they have not been convicted of any criminal offences;[30] and
(b)it has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character.[31]
[29]R2 [13].
[30]See for example, Chapter 11 of the Policy (extracted at [22] above) and decisions extracted at [36] and [37] above.
[31]For example, Beyan v Minister for Immigration and Border Protection [2015] AATA 256.
As to referee reports (that is, character references), the Policy states:[32]
… [they] can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, or who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc., if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.
(Emphasis added.)
[32]The Policy p 155.
ANTECEDENTS
As noted above in para [12], the Applicant lodged the second citizenship application on 20 January 2019.[33] In this application the applicant recorded:
(a)his date of birth as [date];[34]
(b)his place of birth as [place], United Kingdom;[35]
(c)his mother as [ED] (born in the United Kingdom);[36] and
(d)he declared his offence.[37]
[33]T12/39.
[34]T12/40.
[35]T12/41.
[36]T12/44–45.
[37]T12/49
On 25 July 2019, the Department requested the Applicant to provide additional identity and police clearance data, with particular reference to the applicant’s prior association with the United Kingdom.[38] On 16 October 2019, the Department reiterated the need for the Applicant to provide the information previously requested and requested additional information in the following terms:[39]
Request Checklist for Richard Andrew SMITH
Date of Birth [date]
Client ID [ID]
Application Id [ID]
oOfficial evidence of change of name (for example, marriage certificate, change of name certificate - Departmental information indicates you have changed your name from [assumed identity] DOB [date] to Richard Andrew Smith DOB [date]. You have been requested this previously and have not provided the document for change of name.
oPrimary and secondary educational documents from the UK. You have been requested this previously and have not provided.
[38]T15/62.
[39]T16/65.
On 30 July 2020, the Department requested the following information:[40]
[40]T17/68.
Please provide the following documentation, information or action to process your citizenship application.
…
Request Checklist for Richard Andrew SMITH
Date of Birth [date]
Client ID [ID]
Application Id [ID]
oA penal certificate from New Zealand. Please ensure your request includes all the names and dates of birth you have been known by. These include the following:
Richard Andrew Smith, date of birth [date]
Richard Andrew Smith, date of birth [date]
[assumed identity], date of birth [date]
Please also complete and return the attached New Zealand Ministry of Justice consent form with your police certificate from New Zealand when you have received it. Information on how to apply for a police check certificate from New Zealand is available on the Department’s website: Please ensure you tick the “Full Record of Convictions” box on step 3 of the application form for the penal certificate.
The Applicant did not provide the further requested information in response to these requests.
Rather, by email dated 4 October 2020, the Applicant submitted a personal advocacy statement, together with one signed statutory declaration from a cycling associate in support of the second citizenship application.[41] Also included with this email were three unsigned and undated support statements, in the form of statutory declarations.[42]
[41]The completed statutory declaration, dated 25 September 2020, was submitted to the Tribunal on 8 December 2020.
[42]T22/87–94; the three unsigned statements were subsequently issued in duly executed form as Statutory Declarations and submitted by the Applicant to the Tribunal on 8 December 2020.
On 20 October 2020, a delegate of the Minister made the Reviewable Decision.[43] Relevantly, the delegate was not satisfied that the applicant was of good character, essentially for the following reasons:[44]
(a)Between 22 April 1995 and the date of the Applicant’s guilty plea on 1 December 2006 he had with knowledge and intent, perpetuated identity and migration fraud and made no attempts over that period to reveal the truth about his identity.
(b)The Applicant’s offending was aggravated by the extent to which it disregarded the laws of Australia and New Zealand, including the Applicant having obtained Australian citizenship in 2005 under false pretences. It was further aggravated by the Applicant’s conduct in June 2007 by misrepresenting his circumstances to his local Commonwealth Member of Parliament.
(c)The Applicant’s expressions of remorse were unconvincing.
(d)The Applicant provided no relevant documentary evidence to support those of his achievements claimed to have been beneficial to either himself personally, or to the community generally.
(e)The Applicant’s contentions that there were extenuating circumstances surrounding his actions were unconvincing and failed to address underlying concerns about the Applicant’s enduring integrity and honesty.
(f)The advocacy statements submitted by the Applicant on 4 October 2020 were unsatisfactory in both substance and form.
(g)The Applicant’s identity and migration fraud was both serious and of an enduring nature and, therefore, weighed heavily against a finding that the Applicant met the “good character” requirement under s 21(2)(h) of the Citizenship Act.
[43]T23/103–107.
[44]T23/101–103.
On 27 October 2020, the Applicant applied to the Tribunal for review of the Reviewable Decision.
THE HEARING
The application was heard in person on 24 August 2021 at the Perth Registry of the Tribunal. The Applicant appeared on his own behalf and the Respondent was represented by Ms D Jones-Bolla of Sparke Helmore Lawyers.
The Tribunal admitted the following documents into evidence:
(a)a statutory declaration of Paul Graham Tulloch, dated 25 September 2020 and received by the Tribunal on 8 December 2020 (Exhibit A1);
(b)the statutory declarations of:
(i)Hillary Joyce Toulalan, dated 28 September 2020;
(ii)Joan Elizabeth Morrison, dated 27 September 2020;and
(iii)Derek Morrison, dated 27 September 2020,
all received by the Tribunal on 8 December 2020 (Exhibit A2); and
(c)section 37 T-documents, labelled T1–T25 and comprising pages 1–144, received by the Tribunal on 11 June 2021 (Exhibit R1).
Following the hearing, the Tribunal gave directions requiring the Applicant to file any relevant medical evidence and explanatory submissions on or before 21 September 2021.
The Applicant was further directed to provide the Tribunal with
(a)a copy of the UK Penal Certificate;[45] and
(b)the New Zealand Penal Certificate,[46]
on or before 7 September 2021, with a copy to be served on the Respondent. The Respondent was given suitable timeframes to file any submissions in response to any such evidence and submissions.
[45]T15/62.
[46]T17/68.
On 21 September 2021 the Applicant provided relevant medical reports and a further advocacy statement, in compliance with the directions. The required UK and NZ penal certificates, however, were not provided by the Applicant. The Applicant addressed the non-provision in covering email messages, which will be addressed separately below.[47]
THE PARTIES’ CONTENTIONS
[47]See below [78].
The Applicant
In his application for review, dated 30 December 2020, the Applicant stated as follows:[48]
I do not believe that the character assessment section of the citizenship application document was relevant to my character at this present time. I admit the crime I was charged, convicted and fined with was regrettable but there is no contingency in the process to show positive remorse for my actions in any kind of time frame. It was claimed in the reply from the Minister’s delegate that there is nothing to suggest that I would not commit another crime in the future but on the same point there is nothing to suggest that I would ever reoffend or commit another crime in the future either?
It is purely based on his personal opinion rather than anything based on fact or on my present situation and circumstances. A person who is imprisoned and eventually released has to be in a position has to be given the chance [sic] to display that they have in fact been rehabilitated and are fit to return to society. There has been considerable time frame [sic] since my court appearance in 2006 and the present day where I have not committed another crime and I feel this has not been taken into consideration?
[48]T2/8.
At the hearing of 24 August 2021, the Applicant made the following relevant comments:[49]
[49]Transcript p 8.
MEMBER:The Minister’s contention is, based on the law, that I can’t positively be satisfied that you meet the test for good character.
APPLICANT:   I would probably – I would have to agree with that, Member, with that decision.
MEMBER:Then in general terms what is the thrust of your contrary view?
APPLICANT:   It would be – I think it would be the time limit from when the – I was charged with the offence in court but also the overall time from when the initial crime was committed. I feel that – I’m just trying to choose my words. I’m looking at the – I mean, I keep looking at the definition of good character but I thought – I mean, I feel it maybe should be based on how I am now rather than how I was in the past before I committed the crime.
Which I obviously am a very – obviously this has caused me – it’s a problem I caused myself and there’s no way I could adequately apologise for the trouble I’ve caused, if that makes sense, …
MEMBER:.... So you’ve asked me to consider the time passed since offending and how you live your life today, yes. Anything else that you’d like to put just in general terms?
APPLICANT:   To be honest, to be truthful, Member, I was – I’ve been – I was in doubt about actually coming to the meeting because everything I’ve – everything that’s been put against me is factual, that I have no dispute about that. But I feel I think the character thing is – I think it’s – what I feel is from what I’ve done in – from what I did which obviously I’m, you know, I have no words and I have no way to mitigate what I’ve done but I feel that since I’ve been in Australia and I’ve been here a substantial amount of time now, that I feel I’m a different person.
And with what I’ve done in my life, I think this – I think the good character thing is – I think it needs to be maybe – I don’t know, I just feel maybe it needs to be a bit more objective but that’s just my opinion, Member.
(Emphasis added).
Late in the hearing, the Applicant’s personal psychological history became the focus of the Respondent’s questioning and the Applicant’s evidence in response raised a reasonable question about the potential relevance of this history, in the context of the review application. As a result, the Tribunal made the directions referred to at para ‎47 above.
A written submission was included with the Applicant’s response to the Tribunal’s directions. This was received by the Tribunal in an email on 21 September 2021 and relevantly stated as follows:
Over an extended period of years I have had numerous small episodes of mental instability which my wife and her family and friends have had to endure some of it from my earlier childhood experiences and some from my deceptions and deceit based around my crime when I entered Australia. The episodes gradually eventuated in me having a nervous breakdown.
In 2016 I was admitted into Bentley Mental health Campus after I was sectioned under the Mental Health Act. I was held under the Act for two months
…
I do believe my earlier life experiences and social interactions were responsible for some of the ill-conceived and irrational decisions I made.
From the Applicant’s written and oral evidence, it appears that the Applicant contends that he meets the “good character” requirement under s 21(2)(h) of the Citizenship Act by virtue of the mitigating factors outlined in CPI 15, being:
(a)the passage of a significant amount of time since his offending behaviour;
(b)his having “reformed”, in the sense adopted by Lee J in Irving;
(c)his extenuating circumstances, being his psychological history, which was “responsible for some of the ill-conceived and irrational decisions” made over his early life (but that he has sought help for this); and
(d)his having taken steps to rehabilitate or change his lifestyle and become a person of good character.
The Respondent
The Respondent’s contentions are recited in detail in the Respondent’s SFIC.[50] While these contentions are not helpfully summarised “holistically”, as CPI 15 recommends,[51] they may be summarised as follows:
(a)Although the Applicant’s conviction and sentencing was a single proceeding, finalised on 1 December 2006, the Applicant’s offending was prolonged and enduring. This offending implicated all of the Applicant’s most significant personal and professional relationships, including his official dealings with government instrumentalities in the United Kingdom, Australia, New Zealand and Mauritius during the period 1995 to 2006.
(b)The Applicant continued to make false representations about his offending beyond his conviction and sentencing until at least June 2007, at which time he approached his local Federal member of parliament to make a complaint relating to a delay in processing an Australian passport application.
(c)The Applicant’s expressions of remorse are equivocal, and there is an absence of corroborating evidence suggestive of him having engaged in rehabilitation programs.
(d)The supporting character references provided by the Applicant suggest that the Applicant may not have been candid with the referees about the nature or extent of his offending.
(e)The Applicant’s claims to have contributed to society generally (above what might be regarded as the minimum in a civilised society) are variously exaggerated, or without appropriate corroboration.
(f)The Applicant’s continuing failure to provide the requested penal clearance certificates is not the conduct of a genuine applicant of good character.
THE EVIDENCE
[50]Respondent’s SFIC [19]–[33].
[51]RTB/35; CPI 15 [14].
Applicant’s record of offending
The Applicant’s criminal record, as presented in a Check Results report,[52] is as follows
[52]RTB/R1 (2).

Court

Result Date

Offence

Offence date

Result

Perth Magistrates Court 01/12/2006 Present a document obtained under a name which was false s234(1)(a) Migration Act 1958 22/04/1995 Fine: $1,500
(Spent)

Court	Result Date	Offence	Offence date	Result
Perth Magistrates Court	01/12/2006	Present a document obtained under a name which was false s234(1)(a) Migration Act 1958	22/04/1995	Fine: $1,500 (Spent)

In addition to this official record, the Applicant’s written submission of 21 September 2021, relevantly stated:
From the moment I stepped on the aeroplane back to Australia I knew I had made a serious mistake and expected to be arrested and deported for the crime. Indeed I was questioned at Manchester by the customs staff as to the validity of my false paperwork. Somehow I talked my way out of it …
This statement by the Applicant is not in contention between the parties.
In addition, during cross-examination the Applicant (DOB: [date]) acknowledged that he had made false representations about his identity throughout the course of his life in Australia, including:
(a)assuming the identity of a New Zealand citizen child [assumed identity] who had died two hours after birth on [date] (the assumed identity);
(b)departing the United Kingdom and entering Australia in 1995 on a New Zealand passport issued in the assumed identity (the first bogus passport);
(c)exclusively thereafter relying on the assumed identity in all dealings with others, including government officials, until his arrest in 2006;
(d)using the assumed identity and first bogus passport to obtain a name change by deed poll in Western Australia in 1997, reverting from his assumed name to his birth name of Richard Andrew SMITH (the assumed identity as amended);
(e)obtaining a second New Zealand passport in 2002 using the assumed identity as amended (the second bogus passport);
(f)visiting Mauritius in 2004 and marrying in that country, using the assumed identity as amended and second bogus passport;
(g)applying for a penal certificate from the New Zealand Government in 2005, under the assumed identity as amended;
(h)relying on the assumed identity and bogus passports a total of twelve times between 1995 and 2006 when leaving and re-entering Australia;
(i)relying on the assumed identity as amended, and the second bogus passport to obtain Australian citizenship in 2005; and
(j)when dealing with his local federal member of parliament in 2007 (when lodging a complaint about the cancellation of his Australian citizenship).

The Tribunal finds, therefore, that these are facts as agreed by the parties.
Applicant’s dealings with the Department
The Respondent contends that the Applicant’s unsatisfactory communications with the Department are not consistent with the good character requirement under s 21(2)(h) of the Citizenship Act.
Specifically, as discussed above, the Applicant was previously granted Australian citizenship in 2005, but this was revoked in 2007 on the basis that it had been obtained through the Applicant’s fraudulent misrepresentations regarding his assumed identity and by relying on his bogus passports.[53]
[53]See above [58].
Further, rather than being a single historical incident, all of the Applicant’s dealings with the Department between his arrival in Australia in 1995 and his arrest in 2006 were similarly tainted by the Applicant’s continuous fraudulent misrepresentations.
The Respondent asserts that this history of prolonged and repeated conduct has an enduring quality that is not consistent with an assertion of good character. Contrary subsequent assertions by the Applicant must be weighed against the evidence relating to the Applicant’s character since his history of offending is known to have ended.[54]
[54]Respondent’s SFIC [27]–[28].
The Respondent also asserts that the Applicant’s continuing failure to provide the requested penal clearance certificates in the specific form and content specified by the Respondent, as at the date of this decision, indicates a lack of transparency and candour and is not consistent with an assertion of good character.[55]
[55]Respondent’s Submission in Reply dated 7 October 2021, [4]–[12].
Interim findings on the evidence
By any assessment, the Applicant’s offending history was prolonged and, taken holistically, significant. Briefly, the Applicant has;
·assumed the identity of a deceased New Zealand citizen child;
·entered and obtained long-term residency in Australia relying on that assumed identity;
·fraudulently obtained and subsequently relied upon a New Zealand Passport; deceived his spouse, family and the community generally (including successive employers) about his identity;
·falsely represented his identity to authorities in other countries including the United Kingdom and Mauritius; and,
·made false and misleading statements to numerous public authorities over a prolonged period.
Further, as discussed below, the Applicant’s character has also been placed in an adverse light during the present review proceedings, with particular reference to the requested penal clearance certificates.
CONSIDERATION
The Tribunal’s task in this matter is to assess whether the Applicant is of good character for the purposes of s 21(2)(h) of the Citizenship Act.
It is convenient, for present purposes, to consider the contentions of the parties by reference to the summary of the Applicant’s principle contentions as stated above,[56] namely:
(a)the effluxion of time since the offending behaviour;
(b)the Applicant’s reformed character;
(c)That the Applicant’s psychological history was “responsible for some of the ill-conceived and irrational decisions” made over his early life, but that he has sought help for this; and
(d)That the Applicant has taken steps to rehabilitate or change his lifestyle and become a person of good character.
[56]See above [54].
Effluxion of time since the offending behaviour
This contention by the Applicant invites the Tribunal to consider both the nature of a given applicant’s offending and, in cases such as the present application where the offending behaviour extends over a considerable time period, the passage of time since the offending behaviour has ceased.
The mere passage of time, in and of itself, is an equivocal factor. For example, in the case of a person who has been denied the opportunity to offend due to incarceration, incapacitation or absence from the jurisdiction, the length of time since the last offence may be a poor proxy for the restoration of their good character.
As discussed by Deputy President Boyle in Lual and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3527 (Lual) at [53]:
how an individual engages subjectively with their own history of offending and how they engage with those around them, viewed objectively, over time are both relevant to an assessment of a person’s character.
Subjective assessment
Subjectively, the Applicant misrepresented his prior offending history to his local federal member of parliament in June 2007. In terms of full candour and frankness about the nature and extent of his offending behaviour since that time, at the conclusion of his cross-examination at the hearing, the Tribunal had the following brief exchange with the Applicant:[57]
MEMBER:The other point that Ms Jones-Bolla has made, I think it’s worth reflecting on, is that in the last eight months you’ve asked people close to you to provide statutory declarations as to your good character and they do touch on your offending but not to the extent that we’ve discussed here. Aside from the people in this room, who would know the extent of your offending?
APPLICANT: I don’t believe there’s anybody else, Member.
(Emphasis added).
[57]Transcript p 33.
Although not determinative, it is nevertheless instructive that the Applicant has not been willing and able to subjectively acknowledge the nature and extent of his past offending behaviour, other than in the most forensic of contexts. This is not suggestive of an active subjective engagement by the Applicant with the nature and extent of his past offending since his conviction in 2006.
In his 20 January 2019 application for citizenship by conferral, the Applicant acknowledged that he had “been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions”. The Applicant stated “Yes. 02/12.2006 Fined for using a false passport in the name of [assumed identity].”[58]
[58]T12/49.
In the same application for citizenship by conferral, the Applicant responded as follows:[59]
Evidence of any change of name
Does the applicant have evidence of any change of name? -- No.
Evidence of first arrival in Australia
Does the applicant have evidence of their first arrival in Australia? -- No
Present country of citizenship
Does the applicant have evidence of their present country of citizenship? -- No
[59]T12/51–52.
As discussed at paras [47]-[48] above, the Department subsequently requested the Applicant to provide it with information relevant to the Applicant’s citizenship and identity on 25 July 2019, 16 October 2019 and 30 July 2020. While much of the requested information was eventually provided by the Applicant, he did not provide the penal clearance information in relation to either the United Kingdom or New Zealand.
At the hearing, this issue was put to the Applicant as follows:[60]
[60]Transcript p 25.
…
MS JONES-BOLLA:   Yes, the letter to Mr Smith. It commences at page 66 and then the relevant request is at page 68 of that letter. That first and only dot point requests a penal certificate from New Zealand and this specifically requested that the request includes all names and dates of births that Mr Smith has been known by, including the false date of birth for [assumed identity] and the name, [assumed identity], along with the change of name to Richard Smith with the date of birth from [assumed identity].
And then the details from Mr Smith and is date of birth of 1965. That – there has been no – the [A]pplicant has not provided any penal certificate from New Zealand that complies with that request or any certificate from New Zealand, Member.
MEMBER:Mr Smith, any particular reason why that information hasn’t been provided to the Department? ---
APPLICANT:              I’d say no but the - - -
MEMBER:Have you requested a copy of that information from the New Zealand authorities?
APPLICANT:              We did, yes, Member.
MEMBER:When did that happen?
APPLICANT:              It would have been in the package that (indistinct) immigration, all the documentation and also there was the UK penal document should be included as well. It was provided.
(Emphasis added).
By directions dated 24 August 2021, the Applicant was given until 7 September 2021 to provide the penal clearance information (as requested) in relation to both the United Kingdom and New Zealand. Relevantly, on 6 September 2021 the Applicant emailed the Tribunal in the following terms:
The Police reports were attached to the original application.
Here are the copies for the Australian and UK. A Police report was not requested from New Zealand as I never lived in New Zealand
Attached to the email from the Applicant was a UK penal clearance certificate in the terms requested by the Department and dated 5 August 2019. This certificate recorded no trace of “convictions and reprimands/warnings/cautions/impending prosecutions/under investigations held on UK police databases”.
Also attached to the email was a WA Police Digital National Police Certificate, dated 21 August 2019, which reported that the Applicant was “NOT recorded by the Australian Police jurisdictions with any disclosable court outcomes and/or pending charges.” Presumably, this was due to the Applicant having been in receipt of a “spent” conviction relating to the false document conviction.
The above extract of the Applicant’s email response at para [78] stating that “[A] Police report was not requested from New Zealand as I never lived in New Zealand” is remarkable for two reasons:
(a)Firstly, the statement is inconsistent with the Applicant’s sworn evidence in the bolded passage at para [76] above,[61] to the effect that the New Zealand penal clearance certificate had been both requested and provided by the Applicant.
(b)Second, the substantive reason advanced by the Applicant for not having obtained a New Zealand penal clearance certificate fails to engage meaningfully with the repeated requests for that information.
[61]Transcript p 25.
This avoidant conduct on the part of the Applicant is far from historical. Indeed, it is as recent as September 2021.[62] Whatever else this conduct may demonstrate, it indicates that the Applicant is either unwilling or unable to subjectively accept that his past offending behaviour may have left its mark on the official record in New Zealand. This is not suggestive of an active subjective engagement by the Applicant with the nature, extent and consequences of his past offending since his conviction in 2006.
[62]See above [78].
Rather, it demonstrates an enduring (and continuing) pattern of conduct by the Applicant which is inconsistent with a straightforward and candid subjective acceptance of his past offending conduct at least as far as this relates to the laws and people of New Zealand. Such conduct on the part of the Applicant does not demonstrate good character as envisaged by the “good character” requirement under s 21(2)(h) of the Citizenship Act.
Objective assessment
An objective assessment of the Applicant’s engagement with his history of offending and how he has engaged with others over time concerning that history of offending, requires some consideration of external evidence towards the Applicant’s offending history, such as that provided by character references referred to above. This invites further consideration of the passage of testimony from the hearing referred to at para [72] above:
MEMBER:The other point that Ms Jones-Bolla has made, I think it’s worth reflecting on, is that in the last eight months you’ve asked people close to you to provide statutory declarations as to your good character and they do touch on your offending but not to the extent that we’ve discussed here. Aside from the people in this room, who would know the extent of your offending?
APPLICANT: I don’t believe there’s anybody else, Member.
(Emphasis added).
This evidence suggests that none of the Applicant’s character referees had been made fully aware of the nature or extent of the Applicant’s actual history of offending by the Applicant when they executed the written references referred to at para [‎46] above. In addition to reducing any weight that might be placed on such character references, this also raises the inference that the Applicant has not been candid with the referees about the nature or extent of his offending.
This suggests, objectively, that the referees may have been misled by the Applicant when their personal recommendations were obtained for the purposes of the second citizenship application. Such conduct on the part of the Applicant in his engagement with those around him, regarding the nature and extent of his history of offending, arguably does not demonstrate good character as envisaged by the “good character” requirement at s 21(2)(h) of the Citizenship Act.
In terms of his engagement with the Department over time, the Respondent’s contentions, to the effect that the Applicant has failed to engage in a straightforward and candid manner regarding the nature or extent of his offending,[63] are well made. Again, objectively, this is not the sort of straightforward and candid engagement with those around him regarding his history of offending envisaged by the “good character” requirement at s 21(2)(h) of the Citizenship Act. Significantly, as discussed at para [76] above, the Applicant’s conduct in this respect was as recent as the Respondent’s cross examination of the Applicant at the hearing of 24 August 2021.
[63]See above [60]–[64]; Respondent’s SFIC [28].
Viewed both subjectively and objectively, therefore, the Applicant has not engaged with those around him regarding his history of offending in a manner that is consistent with the “good character” requirement under s 21(2)(h) of the Citizenship Act. Further, this character trait of the Applicant appears to have an “enduring quality” in the sense employed by Lee J in Irving.[64]
[64]Irving, 431.
As such, the Tribunal gives minimal weight to the Applicant’s submissions with regard to the effluxion of time since the offending behaviour.
Having a “reformed” character
Neither the Citizenship Act nor the CPIs express a legislative intention to punish an Applicant for past conduct. Rather, the clear intention is that any record of transgressions by an Applicant should be squarely addressed before being weighed rationally, for example, by giving due consideration of any relevant mitigating or aggravating circumstances, including the actual or potential development of good character, or put another way, rehabilitation or reform.[65]
[65]As per para [31] above, in considering whether an applicant is of good character despite particular adverse information, CPI 15 directs the decision maker to consider several mitigating factors.
Any such rational assessment must, necessarily, be slow to form the view that a given applicant is beyond redemption or change. The legislative intent of the “good character” requirement under s 21(2)(h) of the Citizenship Act was not to enshrine a legislative version of “predestination or eternal damnation”.[66]
[66]An evocative but illustrative phrase, coined by Circuit Judge Pope in Yuen Jung v Barber, 184 F 2d 491 (9^th Cir, 1950) and adopted in a similar context by DP Boyle in Lual at [66].
CPI 15 directs decision makers to assess an Applicant’s claim to meet the “good character” requirement at s 21(2)(h) of the Citizenship Act holistically.[67] In doing so, as discussed at para ‎[32] above, the decision maker is further directed to address certain non-exhaustive questions in order to encourage a more uniform approach to the assessment of good character.[68]
[67]CPI 15 [14.2].
[68]CPI 15 [14.2].
As identified above, the Applicant’s contention is that he has “reformed” in the sense referred to in the CPIs. Relevantly, when specifically addressing the question of character reformation and rehabilitation, CPI 15 directs a decision maker to consider:[69]
(a)whether the applicant has accepted responsibility and shown remorse for their conduct;
(b)whether the applicant has behaved in accordance with Australia's community standards, such as by obeying the law; and
(c)whether the applicant has taken steps to rehabilitate or change their lifestyle and become a person of good character.
[69]CPI 15 [14]
Contrition remorse and legal compliance
Any consideration of an applicant’s expression of contrition or remorse must, as a threshold question, consider whether that applicant has admitted or acknowledged their history of offending. Without a frank and candid accounting of their history of offending by an applicant in the first instance, there can be no certainty regarding that applicant’s submissions on contrition or remorse.[70]
[70] See, for example, T23/103.
As discussed at para [55] above, while the Applicant has acknowledged his offending behaviour in certain respects, the nature and extent of his acknowledgment has been, and continues to be, partial and equivocal.
If an applicant has not fully acknowledged responsibility for their historical offending, the threshold is not met and the value in making further considerations related to compliance with community standards, or rehabilitation, is nugatory.
The objective question then becomes, “[w]ould a person of good character behave the way the [A]pplicant did?”.[71] Clearly, such a person would provide the requested information, (including penal certificates) in the required terms, at the first reasonable opportunity, with frankness and candour and presumably with some signal amounting to contrition or regret.
[71] CPI 15 [14.2].
In the present case, the evidence shows that the Applicant continues to be in default of the request for information, at least with respect to the New Zealand penal certificates. At best, the Applicant’s most recent written submissions offer little more than a justification in response to that aspect of the request.[72] As noted above, this default is further aggravated by being inconsistent with the Applicant’s sworn evidence to the Tribunal on 24 August 2021.[73]
[72] See above [77]–[78].
[73] See above [81].
Such conduct is not consistent with the “good character” requirement under s 21(2)(h) of the Citizenship Act. Further, this conduct by the Applicant appears to be reflective of a character trait having an “enduring quality” in the sense employed by Lee J in Irving.[74]
[74] Irving, 431.
Psychological challenges
The Applicant has submitted that his past offending should be understood in the context of his deprived childhood; underlying environmental trauma during his developmental years and his lack of personal insight into the special vulnerabilities these disadvantages created in his personality and character.[75] These submissions were made as recently as the Applicant’s email of 21 September 2021 referred to at para [53] above.
[75]T9, T22/87. See also Transcript p 36.
While these factors are acknowledged, they must be weighed against the Applicant’s more recent statements, including those discussed above that suggest that the Applicant continues to lack clarity and insight about both the nature and effect of his offending conduct and the need to engage meaningfully with the citizenship application process and, indeed, of the present review proceedings.
This more recent conduct by the Applicant is not explained by childhood trauma or societal disadvantage. Further, this more recent conduct has been engaged in by the Applicant following the therapeutic interventions identified by the Applicant during the closing stages of the hearing of 24 August 2021.

Accordingly, while the Applicant’s submissions regarding his deprived childhood, underlying environmental trauma during his developmental years, and his lack of personal insight into the special vulnerabilities these disadvantages created in his personality and character are accepted in their terms, they are given minimal weight in the context of this review.
Rehabilitation and lifestyle changes illustrative of good character
CPI 15 also directs decision makers to assess an Applicant’s claim to meet the “good character” requirement at s.21(2)(h) of the Citizenship Act by reference to any steps an applicant may have taken to rehabilitate or change their lifestyle and become a person of good character.[76]
[76]CPI 15 [14.2]
The Applicant has submitted that he has demonstrated good character in terms of his employment, familial and recreational associations. These submissions are received in their terms and are accorded some weight as evidence of the Applicant having demonstrated good character over an extended period of time.
The difficulty for the Tribunal, however, comes in disambiguating these aspects of the Applicant’s character and conduct from his other conduct demonstrative of an absence of good character discussed above. Indeed, much of the “good” conduct which the Applicant seeks to rely as being demonstrative of him being a person of “good character” as required under s 21(2)(h) of the Citizenship Act, was co-terminus with the contrary conduct identified by the Respondent in its contentions.
This can best be demonstrated by the Applicant’s lack of candour with his personal character referees,[77] his failure to engage with the Department’s penal certificate requests and his misleading evidence to the Tribunal in the course of this review. Accordingly, the Applicant’s submissions in this regard must be accorded minimal weight for present purposes.
[77]See above [84]
CONCLUSION
The Tribunal has considered the nature and extent of the Applicant’s offending history and related conduct in light of the Applicant’s contentions, being:
(a)the effluxion of time since the offending behaviour;[78]
(b)the Applicant’s reformed character;[79]
(c)the Applicant’s psychological challenges;[80] and
(d)the Applicant’s rehabilitation and lifestyle changes, illustrative of good character.[81]
[78]See above [69]–[89].
[79]See above [90]–[99].
[80]See above [100]–[103].
[81]See above [77].
The Tribunal has also considered countervailing concerns, being the Applicant’s lack of personal insight into the nature and extent of his offending history;[82] together with the Applicant’s enduring lack of adequate contrition and remorse for that record of offending.[83] Each of these factors are deserving of careful consideration by any decision-maker charged with applying the “good character” requirement under s 21(2)(h) of the Citizenship Act.
[82]See above [87].
[83]See above [95].
The Tribunal notes that the Applicant appears genuine in his desire to live as a person of good character in the future. He also appears to be sincere in his expressed desire to make positive contributions to his family, workplace, and the broader community.
However, these considerations together with the Applicant’s enduring behaviour over an extensive period of time, viewed holistically, lead the Tribunal to find that the enduring quality of the Applicant’s character did not meet the “good character” requirement at s 21(2)(h) of the Citizenship Act at the time of the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent to refuse the Applicant citizenship by conferral on 20 October 2020, is affirmed.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Dr C Huntly, Member

........[Sgd].................................
Associate
Dated: 04 November 2021

Date of hearing:

24 August 2021

Applicant:

In person

Solicitors for the Respondent:

Ms D Jones-Bolla, Sparke Helmore Lawyers

[2021] AATA 4077

4 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Standing

Date of hearing:	24 August 2021
Applicant:	In person
Solicitors for the Respondent:	Ms D Jones-Bolla, Sparke Helmore Lawyers