SXHL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 3810

SXHL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3810 (19 October 2021)
Division:GENERAL DIVISION
File Number: 2020/8630
Re:SXHL

APPLICANT

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

DECISION
Tribunal:Brigadier A G Warner, AM LVO (Retd), Member
Date:19 October 2021
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 21 December 2020 to refuse the Applicant’s application for Australian citizenship by conferral, is set aside and remitted to the Respondent for reconsideration with the direction that the Applicant meets the character criterion in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
....................[Sgd]....................................................
Brigadier A G Warner, AM LVO (Retd), Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – character test – non-trivial offence at very lowest end of the scale – spent conviction – whether Tribunal is satisfied Applicant is of good character – reviewable decision set aside and remitted with direction that applicant is of good character
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21, 21(1), 21(2)(h), 24, 24(1A), 52(1)(b)
Community Protection (Offender Reporting) Act 2004 – ss 26, 29
Criminal Code Compilation Act 1913 – s 320(4)
The Evidence Act 1906 – s 106
CASES
Anton and Minister for Immigration and Border Protection [2018] AATA 4187
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
LSNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3785
Mohammadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1179
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy (1 June 2016)
Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019) – CPI 15
REASONS FOR DECISION
Brigadier A G Warner, AM LVO (Retd), Member
19 October 2021
INTRODUCTION

The Applicant seeks review of a decision made by a delegate of the Respondent on 21 December 2020 to refuse her application for Australian citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the CitizenshipAct) (the Reviewable Decision).
The basis of the refusal was that the delegate was not satisfied that the Applicant was of good character, as required by s 21(2)(h) of the Citizenship Act, because she had been convicted of an offence “at a high range of seriousness” (T10/129).
Section 52(1)(b) of the Citizenship Act provides that, “[a]n application may be made to the Administrative Appeals Tribunal for review of…(b) a decision under section 24 to refuse to approve a person becoming an Australian Citizen”. As the Reviewable Decision was made pursuant to s 24 of the Citizenship Act, the Tribunal has jurisdiction to review the decision.
The application was heard by the Tribunal on 3 September 2021. The Applicant was represented by Mr David Blades of Chisholm Law, and the Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers. The Applicant and the Applicant’s partner gave oral evidence at the hearing and were cross examined by Mr Burgess.
BACKGROUND
The Applicant is an Iranian citizen born in Iran in 1987. She arrived in Australia in 2010 and was granted a Protection visa in 2011. She is currently the holder of a Resident Return visa, granted to her in 2016 (T10/127).
The Applicant claims that she was married in Iran when she was 17 years of age to a controlling and physically abusive husband. On arrival in Australia she initially lived in Sydney, before leaving her husband and moving to Western Australia in 2013 (Exhibit A18/1).
The Applicant applied for Australian citizenship by conferral in 2018 (T4). In the application form signed on 12 August 2018 she ticked the “yes” box when asked whether she had been convicted of any offences overseas or in Australia (T4/48). The Applicant also provide a statutory declaration in support of her application and disclosed that in March 2017 she had been convicted by a jury of indecently dealing with a child under the age of 13 (T4/53, 65). The offence occurred between 31 January 2013 and 1 September 2014 (T2/21).
On 21 December 2020, the delegate refused the Applicant’s citizenship application on the basis that the Applicant did not meet s 21(2)(h) of the Citizenship Act because the delegate was not satisfied that the Applicant was of good character (T10). The delegate considered that the offence of which the Applicant had been convicted was “at the high range of seriousness”. The delegate gave the Applicant’s explanation for the offending, that she was only “mucking around”, only limited weight in the assessment of the Applicant’s character. The delegate also considered character references that had been provided by the Applicant as well as evidence concerning counselling she had undertaken after her offending but only gave those matters limited weight (T10/129–130).
The Applicant lodged an “Application for Review of Decision” with this Tribunal on 28 December 2020. In her application, the Applicant provided an extensive statement explaining why she thinks the Reviewable Decision is wrong (T2/8; para 20 below).
EVIDENCE
The Tribunal had before it the following evidence:
·T-Documents (T1–T12, pp 1–167);
·supplementary T-Documents (ST1–ST3, pp 1–64);
·character reference by Father D dated 12 May 2021 (Exhibit A1);
·character reference by the Applicant’s partner dated 23 March 2021 (Exhibit A2);
·letter from 360 Health and Community dated 8 March 2021 (Exhibit A3);
·character reference from Women’s Health and Family Services dated 4 March 2021 (Exhibit A4);
·sentencing transcript dated 22 March 2017 (Exhibit A5);
·letter from Department of Communities dated 30 August 2017 (Exhibit A6);
·character reference by Mr B dated 20 January 2017 (Exhibit A7);
·letter from the Applicant’s partner to the Perth District Court (Exhibit A8);
·application for review dated 28 December 2020 (Exhibit A9);
·Centrecare attendance certificate dated 19 August 2021 (Exhibit A10);
·statutory declaration of the Applicant dated 24 August 2021 (Exhibit A11);
·statutory declaration of the Applicant’s partner dated 22 August 2021 (Exhibit A12);
·registration certificate dated 20 July 2021 for Certificate III in Business (Exhibit A13);
·student enrolment form dated 26 July 2021 (Exhibit A14);
·letter from Ms R of Women’s Health and Family Services dated 4 March 2021 (Exhibit A15);
·the Magistrates Court of Western Australia Prosecution Notice dated 2 June 2021 (Exhibit A16);
·character reference by Ms C dated 23 August 2021 (Exhibit A17);
·the Applicant’s Statement of Facts, Issues and Contentions dated 24 August 2021 (Exhibit A18);
·the Respondent’s Statement of Facts, Issues and Contentions dated 15 June 2021 (Exhibit R1);
·the oral evidence of the Applicant; and
·the oral evidence of the Applicant’s partner.
At the commencement of the hearing, the Tribunal declared that one of the character referees, Father D for the Applicant (Exhibit A1), was known to the Presiding Member. They attended secondary school together and had some limited contact in recent years at school “old boy” events and veteran commemorative gatherings as a consequence of their late fathers having served in the same unit during World War II. The parties raised no concerns regarding the declared relationship (Transcript/2).
ISSUE
The issue in this matter is whether the Tribunal is satisfied as to the Applicant’s good character for the purposes of s 21(2)(h) of the Citizenship Act.
LEGISLATION AND POLICY FRAMEWORK
Section 21(1) of the Citizenship Act provides that “[a] person may make an application to the Minister to become an Australian citizen”. Further, s 21(2)(h) of the Citizenship Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person “is of good character at the time of the Minister’s decision on the application”.
Section 24(1A) of the Citizenship Act provides that: “[t]he 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)”.
The term “good character” is not defined in the Citizenship Act. However, the Tribunal is assisted by the extensive guidance contained in the “Australian Citizenship Policy” (1 June 2016) (the Policy) and the “Revised Citizenship Procedural Instructions” (1 January 2019) (the CPIs). As established by ReDrake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, the Tribunal will generally apply policy unless there are cogent reasons not to do so.
“CPI 15 – Assessing Good Character under the Citizenship Act” was amended with effect from 26 February 2021. The CPI 15 at [3.3] notes that the Federal Court and the Tribunal have in most cases adopted the definition of “good character” from the judgement 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.
CPI 15 relevantly provides the following in relation to how a decision maker should assess whether they are satisfied that a person is of good character:
(a)“Good character” refers to the enduring moral qualities of a person. An applicant of good character would, inter alia, respect and abide by the law in Australia and would not commit unlawful sexual activity.
(b)A decision maker should assess whether an applicant has committed an offence that is “serious”. A serious offence is outlined to include crimes against children.
(c)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.
(d)In assessing whether an applicant is of good character, a decision maker should consider any other relevant information such as whether the applicant is responsibly employed, raising children, paying taxes, genuinely remorseful for past wrong doing, the time that has elapsed since any wrong doing, engaged in the community and any other relevant matter.
In submissions regarding the state of satisfaction required of the Tribunal in determining the present matter, the Respondent submits that the following propositions emerge from the judgement of O’Bryan J in BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39 (Exhibit R1, para 11):
a.Section 21(2)(h) requires the Minister to form a judgment as to whether he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities, because the matter of which the decision-maker must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment ([54]).
b.The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character ([55]).
The Respondent also cites Mohammadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1179 at [119] in submitting that “…a finding that a decision-maker cannot be satisfied that a person is of good character is not the same as a conclusion that a person is of bad character or an “inherently bad individual”” (Exhibit R1, para 12).
CONSIDERATION
The Applicant claims that the Reviewable Decision is wrong and provided the following explanation in her application for review to the Tribunal (T2/8):
1.I, [name redacted], made an application in September 2018 to become an Australian Citizen. I then received an email from The department of home affairs on 24 Dec 2020 that informed me of the department’s decision. My citizenship application has been refused because The department is not satisfied that I am of a good character. In my citizenship application I advised the department of home affairs of a Court case involving me.
2.In between February 2013 and August 2014, while I was renting a room at [address redacted], I interacted and played with a young girl who was aged between 9 and 10 years old.
3.In the course of that, I was charged with indecently dealing with a child under the age of 13.
4.I pleaded NOT guilty in the Perth District Court and I was convicted by the jury.
5.The circumstances of the offence were that in February 2013, I was renting a room from the complainant’s family at their home in [address redacted].
6.A couple, together with their three children, lived at the home.
7.During the period that I was living there, either myself or the complainant, I cannot recollect which, took a photograph on my phone or on another device that looked like I was licking the child’s nipple.
8.At the time, the child was aged 9 or 10.
9.I had taken a number of selfies with the child. I said at my trial I was only mucking around.
10.The issue at the trial was whether the conduct depicted in the photograph was indecent.
11.Consistent with the jury’s verdict, they found that the photograph had a sexual connotation that derived from the area of the body to which the conduct occurred being the nipple area of a 10 year old child.
12.The Prosecution never suggested that it was done for sexual gratification nor was it done as part of any issues or grooming or sexualisation or distress in respect of the conduct.
13.What occurred simply occurred in the course of me spending time with the child in a big sister or auntie role and taking photographs at the time.
14.At the time, I did not understand fully the ramifications of my actions and that was accepted by the Judge when she sentenced me.
15.A lot of my background was in Iran where it was extremely oppressive.
16.I was married at 17 in Iran and my husband was controlling and physically abusive towards me.
17.I was not allowed to go out or speak in a social setting.
18.I was not allowed to drive or have friends and I was largely restricted to home.
19.Because of my husband’s actions politically, we had to flee Iran and I came to Australia by boat from Indonesia to Christmas Island.
20.I was detained for 11 months before being granted a visa.
21.I came to Western Australia and left my husband in 2013.
22.It was in those circumstances that I rented a room.
23.The Judge in sentencing me and I enclose a copy of the sentencing transcript, pages 71 – 83, gave me the benefit of a spent conviction which means, in effect, that my circumstances satisfied the significant test required that I should not be burdened with a conviction in the very unusual circumstances of the case.
24.I ask you to take into account all the matters set out in Her Honour’s Judge… decision.
25.In my citizenship application I also submitted the following to the department:
- A statutory declaration.
- Court Sentencing Transcript
- Letter from the Women’s Health and Family Services
- Letter from the current employer
- Letter from the Department of Child Protection and Family Support.
26.I provided the department some information of rehabilitation in the form of a letter from my counsellor that I have completed sessions of counselling.
27.I also provided the department a couple of character references from my employer and my court appointed counsellor.
And I make this solemn declaration conscientiously believing the same to be true and by virtue of Section 106 of the “The Evidence Act 1906.”
(Name and address removed.)
The Respondent contends that (Exhibit R1, para 16):
Considered in isolation, the applicant’s offending is a sufficient basis for the Tribunal to find itself unable to be affirmatively satisfied that the applicant is of good character. The next issue for the Tribunal to consider is whether anything has happened since the offending that will admit of the Tribunal attaining the required state of satisfaction. The Minister submits that upon examination of the relevant events the Tribunal will remain unable to be satisfied that the applicant is of good character.
The time at which the Tribunal must be satisfied of good character
The Tribunal notes that the s 21(2)(h) of the Citizenship Act requires the consideration whether a person is of “good character” at the time of the Minister’s decision. Therefore, it is prudent to clarify whether the Tribunal can have regard to any evidence or conduct subsequent to the time of the Reviewable Decision.
In deciding this the Tribunal has regard to the relevant analysis by Senior Member Dr Evans-Bonner in Anton and Minister for Immigration and Border Protection [2018] AATA 4187 at [23]–[26] and finds that in the present matter, it is appropriate for the Tribunal to comprehend material up to the date of making its decision.
Applicant’s offence
While the Applicant was living with a family in suburban Perth, an incident occurred in 2013 or 2014 in which the Applicant was photographed licking the nipple of a child under the age of 13, the photograph having been taken on a device by the child or the Applicant (Exhibit 18, para 6).
In 2017, the Applicant was sentenced to a 12-month Community-Based Order involving programs, supervision, and psychological counselling for indecently dealing with a child under the age of 13 years by “touching [the female child] on the nipple with [the Applicant’s] tongue” (T2/21–26). The Sentencing Judge made a spent conviction order. The conviction also resulted in the Applicant becoming a “reportable offender” (T2/25). The Applicant pleaded not guilty to the charge; however, she was convicted by a jury in the District Court of Western Australia (T2/21); (T4/53). The maximum penalty for the offence was 10 years’ imprisonment under s 320(4) of the Criminal Code Act Compilation Act 1913 (WA) (T2/21). While sentencing the Applicant, the Sentencing Judge described the facts of the offending as follows (T2/21):
The circumstances of the offence are that in February 2013 you started renting a room from the complainant's family at their home in [address redacted]. A couple together with their three children lived at the home. During the period that you were living with the family you or the complainant took a photograph on your phone or on another device that showed you licking the child's nipple.
At the time she was aged nine but probably 10. You’d taken a number of other selfies with the child and you said that you were only mucking around. The issue at trial was whether the conduct depicted in the photograph was indecent. Consistent with the jury verdict the photograph had a sexual connotation that derived from the area of the body to which the conduct occurred being the nipple area of a 10-year-old girl by a 26-year-old woman using her tongue.

The Sentencing Judge stated that the offence has “offended against the common - the standards of decency in our community” (T2/21). Her Honour further states that the offence “clearly isn’t trivial” but accepted that “when one looks at it in the context of offences of this type it is at the very lowest end of the scale” (T2/25).
While sentencing the Applicant for the offence, Her Honour mentioned the following:
(a)the evidence of the complainant did not raise any issue of grooming, sexualization or distress (T2/22);
(b)the offence appeared to have occurred when the Applicant was spending time with the child in a big sister or aunty role when it was normal for the child to go topless in the family home (T2/22); and
(c)there is no suggestion of sexualising the child, and the Applicant’s behaviour was not for sexual gratification (T2/25).
The Sentencing Judge also found that:
(a)The Applicant did not understand the full repercussions of her actions and was sorry for her conduct (T2/22); and
(b)There were reasons why the Applicant had now changed her understanding and also reasons why at that time the immorality of her conduct was not clear to her (T2/22).
In her sentencing remarks, the Sentencing Judge had regard to a psychological report provided to the Court, and stated that the Applicant suffered from chronic anxiety “associated with difficulties adjusting to the distressing events in your life including being targeted by the police, fleeing Iran on an unsafe vessel and enduring domestic violence.” Her Honour also noted the psychologist’s opinion that the Applicant did not present with antisocial tendencies and assessed that the Applicant was “at low risk of reoffending” (T2/24).
When considering the appropriateness of an order for a spent conviction, Her Honour stated: “I need to consider whether you are a person of previous good character and for the reasons I have outlined I find that you are…” (T2/25).
With respect to the spent conviction, the Respondent submits (Exhibit R1, para 15):
The fact that the applicant’s conviction is spent also does not prevent the Tribunal from placing weight on the offence or from engaging in its own assessment of the seriousness of the underlying conduct (LSNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3785).
Applicant’s conduct since the offence
General
The Applicant has now been in Australia for more than 11 years. The single offence for which she was convicted almost five years ago in 2017 occurred in 2013 or 2014, some seven to eight years ago. There is no evidence of any other criminal offences or inappropriate behaviour in Iran or in Australia prior to the 2013-2014 incident.
In the statutory declaration which accompanied her citizenship application, the Applicant stated (T4/54):
14.At the time, I did not understand fully the ramifications of my actions and that was accepted by the Judge when she sentenced me to 12 months community-based order.
15.I did use my time during my order and after, constructively doing the necessary internal work to make peace with my past & integrate seamlessly back into larger society and improve my social skills. Since then, I have taken advantage of the counselling services (provided by the justice system as well as the private ones) and have also taken educational courses, been employed, joined libraries and become focused on where I want to go with my life.
In response, the Respondent contends that (Exhibit R1, para 19):
…Most of the matters referred to in the second sentence of that paragraph are irrelevant (undertaking educational courses, becoming employed, joining libraries) because the connection between those activities and the applicant’s desire to rehabilitate herself is not clear. The applicant presumably would have studied and sought employment even if she hadn’t committed the offence.
On the contrary, the Tribunal views the Applicant’s use of her time in a more positive light, regarding it as evidence of her prosocial activities and integration into, and contribution to, Australian community life.
The Applicant is now the mother of a four-year-old child, born shortly after the Applicant’s trial. The Applicant has been in a stable de facto relationship with the child’s father since 2014 (Exhibit A18, para 16). The Department of Communities was required to assess concerns relating to the Applicant’s contact with her child. In its letter to the Applicant and her partner dated 30 August 2017, the Department stated that there “is no requirement for our Department to undertake a safety plan” and that their case had been closed (T2/29).
The evidence is that the Applicant has engaged in psychological counselling both before and after her conviction. In a letter dated 8 March 2021, a registered psychologist reports the Applicant attending three sessions of individual psychotherapy commencing in March 2016 (Exhibit A3). The Respondent notes that this treatment was provided before “…the applicant’s jury trial prior to which time she did not admit that her relevant behaviour had been wrong. [Psychologist]’s treatment therefore cannot have served any useful rehabilitative effect in that regard” (Exhibit R1, para 21).
The Applicant’s treatment was independent of the Court’s order or direction, and the Tribunal views efforts of the Applicant to resolve her issues, through psychotherapy treatments, in the positive light. Further, despite the Respondent’s adverse comments on the nature and efficacy of the registered psychologist’s psychotherapy treatment, the Tribunal finds that the Applicant’s engagement with the psychologist does not weigh against a finding that she is of good character.
A registered psychologist of Women’s Health & Family Services has provided letters dated 29 June 2018 (T2/30) and 4 March 2021 (Exhibit A15) in relation to the Applicant’s progress. In both the letters the psychologist states that the Applicant was clear about what was acceptable behaviour and is a safe person to be around children. The psychologist further states her professional opinion, in her letter dated 4 March 2021, that the Applicant no longer requires counselling and she will not re-offend.
The Tribunal notes the 21 September 2017 entry in the Department of Justice’s “Client Event Details Report RCM16” which includes the following comments (ST2/48–49):
… [the Applicant] has complied with all order requirements to date. She has completed counselling with WHFS engages in pro social activities, however most of her time is spent with her baby.
… [the Applicant] has complied with the requirements of her Order and engaged well. She has completed counselling through Women’s Health and Family Services and treatment gains were noted. Her risk level and potential of re-offending in a similar nature has not changed and her risk remains low at this juncture. She has been engaging in pro-social activities, managing her responsibilities as a mother. It is noted that her offending also related to her lack of knowledge around Australian norms and what was appropriate sexually.
(Name omitted.)
The Respondent contends that the Tribunal does not know whether the Applicant’s attendances upon the psychologist, of Women’s Health & Family Services, went beyond those required by the Court, and that “[i]f the applicant has done nothing more than the bare minimum required of her it is difficult to construe that as a genuine attempt at rehabilitation” (Exhibit R1, para 22). However, in the absence of any clinical evidence to the contrary, the Tribunal accepts the psychologist’s professional opinion and the comments in the “Client Event Details Report RCM16” and gives no weight to the Respondent’s contention.
4 February 2021 incident
The Respondent states in Exhibit R1 under the heading “Illegal drug use and family violence in the presence of the applicant’s daughter”:
25.The applicant’s partner sought the assistance of the WA Police in relation to an incident involving the applicant on 4 February 2021. The incident report states the following (ST1/5, see also ST1/9):
Victim stated he drove his partner to an address yesterday afternoon. Once at the address victim believed that his partner was there to buy heroin so he did not stop and drove away from the address his partner had then bitten him and has attempted to get out of the vehicle.
The pair’s four year old daughter was in the vehicle at the time.
Victim is not willing to make a formal complaint but he is concerned for the welfare of his daughter as he [is] a FIFO worker and has to return to work on Thursday 11^th February. Advice given in relation to the child’s ongoing welfare.
Suspect not present on police attendance and victim has no idea where she will be as she often just leaves and returns
26.The police characterised the matter as a “Family Violence level 1 incident” because “there has been offences alleged” (ST1/6). The applicant’s partner was sufficiently concerned for his daughter’s welfare that he removed her from the house and arranged for her to stay with a family friend (ST1/6-7).
(Original emphasis.)
During her evidence, the Applicant denied that she was a heroin user. She further explained to the Tribunal that (Transcript/12–13):
… My boyfriend has totally made up a story. It was because I was going to go for a separation because of some personal issues that he had and he didn't want that to happen. He didn't want me to leave, so he just wanted to put me in trouble and make me stay with him, especially by - like, taking my child from me and keep it with him. That's why he made up just a totally made-up story and told that to police, but he said, 'I didn't want to make any formal complaint. I just wanted to get some idea if you were really going to leave me, how would that work if I say something like this to the police,' but he did mention to the police that he doesn't want anything to be recorded, he just wanted to get some information…And he never told anything – told me anything about them. I only realise he’s done that when I received your reports and read them and then I ask him. He couldn’t even remember. He said, ‘No, I haven’t made any reports. I just asked some questions and nothing should be recorded because I asked them not to record anything because I knew I was making a false allegation’.
During his cross-examination the Applicant’s partner stated (Transcript/15):
At the time I was smoking some cannabis every now and again. [the Applicant] did not approve of that. She had threatened to leave me. I thought [the Applicant] was about to leave me. I wanted some information from the police to see how to go about custody of our child. It was not an emergency but I was under a lot of stress, I wasn’t thinking properly.
The police came to my door. I panicked and made up a story knowing it was false. I asked the police not to make it formal, it was my daughter who had bitten me. I made up the allegation that [the Applicant] was a heroin addict. I was in a state of panic. I was worried I would lose everything.
(Name omitted.)
The Tribunal questioned the Applicant’s partner regarding his statement referred at paragraph [42] above that he had removed their child from the house and arranged for the child to stay with a friend. He stated that the child was not so removed because he had “calmed down a bit, relaxed, thought about it a bit more” (Transcript/20). He also told the Tribunal that his allegation about the Applicant using heroin were unfounded (Transcript/21).
During the cross-examination of the Applicant’s partner the Tribunal encountered some difficulty in decoction of the evidence relevant to the incident of “4 of February 2021”. The Applicant’s partner demonstrated some confusion in recalling the events of February this year, therefore, the Tribunal was unable to make a definitive finding on the incident of “4 of February 2021” and places only a limited weight on his evidence. However, the Tribunal notes that both the Applicant and her partner gave their evidence on affirmation; there is no evidence of any police follow-up in relation to the illicit substances or the safety of the child; and there is no independent evidence that the Applicant uses drugs or has any problem in relation to illicit substances. Furthermore, no charges resulted from the Applicant’s partner contacting the police. Therefore, after very careful consideration, the Tribunal is satisfied that this issue does not weigh against a finding that the Applicant is of good character.
Failure to comply with reporting obligations
As noted at paragraph [25] above, as a consequence of her conviction the Applicant is a reportable offender under the Community Protection (Offender Reporting) Act 2004 , and is required to report changes in personal details such as name, address, telephone number, email address etc. The Applicant recently breached her reporting obligations by not advising the purchase of a new motor vehicle within the prescribed period, and received a $300 fine and a further spent conviction (Transcript/27). Under cross examination by the Respondent’s counsel, the Applicant demonstrated an understanding of her obligations and said that she had breached her reporting obligation by reporting the purchase of a new vehicle two days late (Transcript/11).
Having regard to the period the Applicant has been compliant with her reportable offender obligations, the minor nature of this breach and the sentence imposed with respect to the breach, the Tribunal assigns little weight to the Applicant’s breach offence. The Tribunal does so cognisant of the Respondent’s submission that “it would not be appropriate for the applicant to be found of good character at this time whilst those reporting obligations are in place” (Transcript/37), noting that the reporting obligations are in place for 15 years from the date of sentencing.
In relation to the passage of time between the offending and the assessment of good character, the Tribunal notes the comment by Senior Member Toohey in Assafiri and Minister for Immigration and Border Protection [2014] AATA 35 at [64]: “[t]here is no formula for determining how much is sufficient time in order to be satisfied that a person is of good character”. In the present matter having regard to the evidence, a consideration period of seven to eight years, for the purpose of assessing whether the Applicant’s is of good character, might not be unreasonable, but a period of some 18 years (including the reporting obligation period and the time between the offence and the conviction) would appear to be manifestly excessive.
Remorse
The Respondent contends that the Applicant has not demonstrated sufficient or genuine remorse, and “…[t]he time has come for her to unconditionally accept responsibility for her actions and it is not at all clear that she has yet reached that realisation” (Exhibit R1, para 24).
On the contrary, the Tribunal notes that the Applicant genuinely expressed her remorse to the Court, which is evident by the following sentencing remarks of Her Honour (T2/24):
You are very sorry that you may have caused distress to the young complainant. You genuinely enjoyed being part of her family and you enjoyed the supports and connections that she and her family provided to you at a time when that family was your only community…and I accept that you are very sorry indeed.
In her letter dated 4 March 2021 (Exhibit A15; para 39 above refers), Ms R states in relation to the Applicant’s remorse “she deeply regrets the offence and feels sorry for any harm she caused. She is now quite clear on appropriate behaviour and boundaries and has learnt a difficult lesson”.
For completeness and mindful of the relationship, the Tribunal notes the statement by the Applicant’s partner in his letter dated 23 March 2021 (Exhibit A2):
When [the Applicant] told me about her charge and court case in 2016 I could see she felt horrible and ashamed for her actions. She accepted full responsibility for her actions and never blamed anyone other than herself for her actions. She genuinely regrets doing it.
The Tribunal is satisfied that the evidence before it demonstrates the Applicant’s genuine and appropriate remorse for her offence.
Character References
CPI 15 advises that in assessing character, “information such as character references provided by people who know the applicant must also be considered” (T12/150 at para 4.6) and that “[a]pplicants may wish to provide references from independent people, like employers, attesting to the applicant’s character” (T12/161 at para 4.12).
The Applicant has provided various character references (Exhibits A1, A2, A7, A15, and A17). The Respondent invites the Tribunal to give these references little weight because they are “written by people who could be expected to support the applicant…” and “…by reason of a lack objectivity” (Exhibit R1, para 30). With the exception of the reference supplied by the Applicant’s partner, which the Tribunal will comment on separately below, the Tribunal rejects the Respondent’s invitation. The Tribunal does so having regard to the relevant CPI 15 guidance referred to in the previous paragraph [55], and the Tribunal’s view that it would be reasonable and normal for the Applicant to seek testimony from supportive individuals cognisant of her circumstances.
Importantly, the references of Father D (Exhibit A1) and Mr B (Exhibit A7) indicate the referees’ knowledge of the Applicant’s offence. Mr B states that he has “not restricted her [the Applicant] contact with my children”, noting that at the time of writing his seven children were aged four to 21 years old.
The Tribunal notes that the character reference of the Applicant’s partner dated 23 March 2021 is clearly relevant to the Tribunal’s assessment of the Applicant’s good character (Exhibit A2). The Respondent relevantly submits that because the reference was written after the “4 February 2021 incident”, discussed above, but makes no mention of it, there is an impediment to the Tribunal accepting the reference (Exhibit R1, para 31). However, the police documents related to the incident were contained in the “Supplementary T-Documents” which were only provided to the Applicant on 15 June 2021, well after the reference was written and before the Applicant was aware that her partner had been in contact with the police. In these circumstances and comprehending the discussion of “the 4 February 2021 incident” at paragraphs [42] to [46] above, the Tribunal gives limited weight to the reference, and cites it at paragraph [53] in the assessment of the Applicant’s remorse.
CONCLUSION
CPI 15 at paragraph [3.1] specifically states that when assessing an applicant under the “good character” provisions, the decision-maker must be mindful of the requirement that the applicant does not have to be of a “perfect character” to be found to be of good character. Therefore, in view of the current circumstances, it is the Tribunal’s opinion that at the time of this decision the Applicant does not fail the character test as per s 21(2)(h) of the Citizenship Act.
The Applicant has no pattern of offending and the Court found her to be of good character prior to her single offence in the period 2013 to 2014. Since then she has overcome personal difficulties to establish herself in Australia, pursued training and education and engaged in meaningful employment and prosocial activities. She has completed the counselling mandated by the Court and embraced the ways and standards of the Australian community. The Tribunal accepts the evidence of her remorse. The Applicant remains in an established relationship and together with her partner they are raising a young child born soon after her trial. The Applicant presented reliable references from the people who knew her and were fully aware of her offence.
Having looked holistically at the Applicant’s behaviour over time and having regard to all the material before it, together with the relevant policy guidance, the Tribunal has reached a firm belief, and finds that the Applicant is of good character for the purposes of s 21(2)(h) of the Citizenship Act.
DECISION

The Reviewable Decision, being the decision of a delegate of the Respondent dated 21 December 2020 to refuse the Applicant’s application for Australian citizenship by conferral, is set aside and remitted to the Respondent for reconsideration with the direction that the Applicant meets the good character criterion as per s 21(2)(h) of the Citizenship Act.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, AM LVO (Retd), Member

........................[Sgd]................................................
Associate
Dated: 19 October 2021

Date of hearing:

3 September 2021

Counsel for the Applicant:

Mr David Blades, Chisholm Law

Counsel for the Respondent:

Mr Ashley Burgess, Sparke Helmore

Date of hearing:	3 September 2021
Counsel for the Applicant:	Mr David Blades, Chisholm Law
Counsel for the Respondent:	Mr Ashley Burgess, Sparke Helmore