Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 206
•12 February 2021
Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 206 (12 February 2021)
Division:GENERAL DIVISION
File Number(s): 2020/1235
Re:Liam Taylor
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Brigadier A G Warner, AM LVO (Retd), Member
Date:12 February 2021
Place:Perth
The Tribunal affirms the decision under review.
....... ...................[sgd]..............................................
Brigadier A G Warner, AM LVO (Retd), Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – national of the United Kingdom – refusal of application – whether Tribunal satisfied of Applicant’s good character –
UK offending – failure to make complete declaration in Application for Citizenship – Australian conviction and sentence for aggravated assault occasioning bodily harm – whether Applicant meets onus to show why conviction and sentence should not be prima facie evidence – reviewable decision affirmedLEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2)(h) 24(1), 47, 52(1)(b)
Criminal Code (WA) – ss 1, 221, 246, 248, 317, 317(1)(b), 801
Sentencing Act 1995 (WA) – ss 39(2)(c), 45CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
DOY17 v Minister for Immigration and Border Protection [2019] FCA 1592
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422
MBJY v the Minister for Immigration [2020] FCA 1161
Minister for Home Affairs v Sharma [2019] FCA 597
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Ragni Mala Prasad and Minister of Immigration and Ethnic Affairs [1994] AATA 326Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship [Policy Statement] 27 November 2020
Australian Citizenship Regulation 2016 (Cth) – reg 18(c)
Department of Immigration and Border Protection, Citizenship Policy at 1 June 2016
– ch 11Revised Citizenship Procedural Instructions – CPI 15
REASONS FOR DECISION
Brigadier A G Warner, AM LVO (Retd), Member
12 February 2021
INTRODUCTION
The Applicant seeks review of a decision made by a delegate of the Respondent
(the delegate) on 7 February 2020 to refuse the Applicant citizenship by conferral approval under s 24(1) of the Australian Citizenship Act 2007 (the Act).
The delegate was not satisfied that the Applicant was of good character for the purposes of s 21(2)(h) of the Act.The Tribunal has jurisdiction to review the delegate’s decision under s 52(1)(b) of the Act.
The hearing was conducted by telephone conference. Mr Barry Pike, of Western Australian Migration Services, a registered migration agent, represented the Applicant who gave evidence on affirmation. Mr J Papalia, of the Australian Government Solicitor,
represented the Respondent.BACKGROUND
Application for citizenship
The Applicant was born in 1984 and is a citizen of the United Kingdom.
On 10 September 2012, he arrived in Australia (ST2/196) as a holder of a Subclass 417 Working Holiday (Temporary) Class TZ visa, which was granted on 27 June 2012 (ST1/192).On 16 January 2014, the Applicant was granted a Subclass 187 Regional Sponsored Migration Scheme (Permanent) Class RN visa (ST1/192). He currently holds a Five Year Resident Return (Permanent) Class BB Subclass 155 visa (ST1/192).
On 12 July 2017, the Applicant applied for conferral approval under s 21(1) of the Act (T8/117-136). In his application form, the Applicant made the following relevant character declaration:
Has the applicant 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)?
Yes
Givedetails: I have a spent conviction in the UK for criminal damage for which I received a Pound fine
I also have a spent conviction in Australia for assault occasioning bodily harm for which i received a $3,000 fine
(Without alteration.) (Original emphasis.) (T8/130)On 11 October 2019, the Respondent’s Department sent the Applicant a natural justice letter, inviting him to comment upon his criminal history in Western Australia (T12/160-170). The Applicant responded with the following material in response:
a.Statutory Declaration dated 29 October 2019 (T13/171);
b.Personal letter addressed ‘To the Magistrate’ requesting a spent conviction,
dated 20 September 2017(T13/173);c.Character reference dated 19 September 2017 (T13/172);
d.Character reference dated 20 September 2017 (T13/174); and
e.Transcript of proceedings (T13/175-186).
On 7 February 2020, the delegate refused to approve the application (T2/14-19).
On 13 March 2020, the Applicant sought review in this Tribunal (T1/1-6).
The Applicant claimed the delegate’s decision was wrong because:The Applicant contends that the Delegate erred in his finding that the Applicant is not of good character insofar as;
1. That he has never in his entire life initiated violence against any person;
2. That in the one conviction he was in fact the victim, as the other man punched him first and the Applicant simply defended himself and his partner;
3. That he is no danger to any Australian citizen.
Therefore the Applicant contends that he ought to pass the Character Test and be granted Australian Citizenship.
(T1/4)
UK Criminal Offending
In support of his application for a permanent visa, the Applicant provided a police certificate issued by the UK Association of Chief Police Officers on 9 July 2013 (Exhibit A6). The police certificate relevantly records the following interactions with police:
Court
Date
Offence
Offence Date
Disposal
Northumbria Police
30 Apr 2004
Destroy or damage property
(value of damage
£5000.00 or less)30 Apr 2004
Caution
Northumbria Police
2 Apr 2006
Possessing controlled drug – Class A – other
2 Apr 2006
Caution
Northumbria Police
11 Jun 2011
Destroy or damage property
(value of damage
£5000.00 or less)10 Jun 2011
Caution
North Tyneside District Magistrates
26 Jun 2012
Destroy or damage property
(value of damage
£5000.00 or less)2 Jun 2012
Conditional discharge
6 mthsCosts £85.00
Compensation
£100.00Assault Occasioning Bodily Harm
At approximately 1.15 am on 14 April 2017, the Applicant and his fiancée were passengers in an Uber vehicle which was taking them to their home address from an address in the suburb of Wandi. The Applicant’s fiancée was seated in the front passenger seat, whilst the Applicant sat behind the front passenger seat (T13/176). During the trip, the Applicant and the Uber driver got into a verbal argument, which escalated to a physical confrontation where there was ‘fray back and forth’ (T13/178).
The Applicant leant forward and punched the driver two to three times to the head,
and subsequently the driver was transported to hospital for treatment (T13/182).The Applicant participated in an electronic record of interview with police on 12 July 2017, where he made admissions to punching the victim numerous times to the head in alleged self-defence after being punched by the driver (T13/176-177). Subsequently, the Applicant was charged with the offence of assault occasioning bodily harm (AOBH) contrary to
s 317(1)(b) of the Criminal Code (WA).On 22 September 2017, the Applicant appeared in the Armadale Magistrates Court and entered a plea of guilty to the charge. His Honour Magistrate Flynn (as he then was), imposed a financial penalty in the amount of $6,000, half of which was made payable to the victim by way of compensation, and made a spent conviction order under
s 39(2)(c) of the Sentencing Act 1995 (WA) (T13/182).In sentencing the Applicant, his Honour made the following pertinent remarks:
… [I]n April this year … you had a night out and you took an Uber home.
That was the right decision to make. But you, it transpired at least on this occasion, were an ugly drunk. Worse than that, you were a violent drunk. Anybody doing their job, including an Uber driver is entitled to feel safe when they do their job.…
You need to get the message, people need to get the message, that people doing their job such as Uber drivers should not have to face that conduct.
This does seem to be out of character on the material which I’m told.
Parliament provides for the possibility of imprisonment for these offences. It also provides for the possibility of fines … On balance, I have decided to deal with this by way of a fine. The fine needs to mark [my assessment of] the seriousness of what took place. That will be a fine of $6000. I’ve decided that half of the fine should be paid to the complainant by way of compensation.and in respect of the application for a spent conviction order:
…
Mr Taylor, I don’t normally take so long to make these decisions. I can’t afford to because of the volume of people. But you can tell that it’s not an easy decision in your case. There’s a lot at stake [in respect of the Applicant’s business].
I accept that. You’re – the issue for me though is to apply the law … whether or not I’m satisfied [that] you’re unlikely to commit the offence again, whether or not you’re someone of previous good character and whether or not you should be relieved of the effect of a conviction … the issues which trouble me is the likelihood of reoffending. You’re someone who is of previous good character.You’ve been frank about the criminal damage. It seems to be a different type of offence and, generally, there’s a lot at stake here because of your success in your business, but the nature of the business. The real question which troubled me is whether or not it this is likely to happen again and that has troubled me because of the presence of alcohol in this offending that suggests that unless I can be confident that you understand that you need to change the way you interact with alcohol, how can I be confident that this is [not] going to happen again.
On balance though, I do accept I’ve been told you …have taken some steps to deal with that … and I’ve decided that it is appropriate then for me to be satisfied or I am satisfied that you’re unlikely to do this again.(T13/182, 184-185)
LEGISLATION AND POLICY FRAMEWORK
Section 21(2)(h) of the Act relevantly provides that the Minister must be satisfied that the applicant:
(h) is of good character at the time of the Minister’s decision on the application.
The Act does not define the term ‘good character’, which indicates that Parliament intended the term to be used in a broad way. Guidance is contained in the Revised Citizenship Procedural Instructions (the CPIs), which is government policy and should be followed unless there are cogent reasons against its application (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644-645).
Guidance for assessing an applicant under the ‘good character’ test is provided in
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422 at 431-432, in which the Full Federal Court stated: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 is 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 the matter BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 (BOY19) at [51], the Federal Court has recently summarised the relevant principles,
as follows:First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person.
Second, the expression does not have a fixed and precise content.
Like other broad statutory standards … the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions …
Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.The ideals of diversity, democracy and liberty, reflected in the Preamble to the Act,
indicate that the expression ‘good character’ is not to be informed or assessed by individual religious, political or social beliefs, but by moral qualities that are regarded as a necessary concomitant of Australian citizenship (BOY19 at [53]). Paragraph 4.4 of CPI 15 (T7/100) provides further guidance on the characteristics of good character and relevantly indicates that:… a person who is of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth [sic]);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
…ogiving false names and/or addresses to police;
· not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
Paragraph 4.7 of CPI 15 requires that when assessing the relative seriousness of an offence, a decision maker must ask if there were victims of the offence and if they were elderly or others who were reliant on, or placed trust in, the applicant (T7/106).
In providing guidance on a decision maker’s task in weighing up a character determination, the Tribunal in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7], said:
A decision about whether a person is of good character requires a 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.
As to referee reports, or character references, the Department of Immigration and Border Protection Citizenship Policy (1 June 2016) (the Policy), now superseded by the reissued version of 27 November 2020, helpfully advised at page 155:
[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, and who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc., if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.
(Policy, p155)ISSUE
The issue before the Tribunal is whether it is satisfied, at the time of its decision,
that the Applicant is of good character for the purposes of s 21(2)(h) of the Act.
For the Tribunal to be so satisfied, it must reach an affirmative belief that the Applicant is of good character.EVIDENCE
The Tribunal had before it the following evidence:
·The ‘T Documents’ (T1-T14, pp1-191);
·The Supplementary ‘T Documents’ (ST1-ST4, pp192-200);
·Further Supplementary ‘T Documents’ (ST5-ST7, pp201-290);
·Applicant’s Statement of Facts, Issues and Contentions dated 13 January 2021 (Exhibit A1);
·Applicant’s Submission of Facts and Contentions filed with Application dated
4 March 2020 (Exhibit A2);·Applicant’s Witness Statement dated 29 May 2020 (Exhibit A3);
·Video of Applicant’s interview with WA Police on 8 July 2017, stored in thumb drive and filed on 30 December 2020 (Exhibit A4);
·WA Police Incident Report for emergency call dated 14 April 2017 (Exhibit A5);
·Letter from UK Association of Chief Police Officer covering a Police Certificate dated 9 July 2013 (Exhibit A6, also at ST3 and Exhibit R3);
·Three certificates of appreciation awarded to Liam Taylor and Savana Environment, filed 29 May 2020 (Exhibit A7);
·Character reference dated 29 May 2020 (Exhibit A8);
·Character reference dated 21 May 2020 (Exhibit A9);
·Character reference dated 10 February 2020 (Exhibit A10);
·Statement of Facts, Issues and Contentions of the Respondent dated
14 August 2020, and with paragraph 30 amended during the hearing
(see Transcript p8) (Exhibit R1);·Bundle of Authorities not cited in Exhibit R1 (Exhibit R2);
·Letter from UK Association of Chief Police Officers covering a Police Certificate dated 9 July 2013 (Exhibit R3, also at ST3 and Exhibit A6);
·Access password for files referred to at ST5 and stored in thumb drive filed
4 January 2021 and 14 January 2021 (Exhibit R4); and·The oral evidence of the Applicant.
CONSIDERATION
The Respondent contends that in assessing whether the Applicant is of good character,
the Tribunal should have regard to the Applicant’s criminal history in the UK between 2004 and 2012, and the assault occasioning bodily harm in Western Australia in 2017.
The Respondent contends that this criminal history evidences a pattern of behaviour which should cause the Tribunal to find that the Applicant is not of good character, and that the passage of only three years since the commission of a serious violent offence is patently insufficient to determine whether the conduct was aberrant (Exhibit R1, paras 27 and 28).The Respondent further contends that:
The Tribunal should treat the applicant’s conviction as strong prima facie evidence of the facts upon which it is necessarily based so as to throw a heavy onus on the applicant to show why it should not be accepted.
The authority for that proposition is the Federal Court’s recent decision in DOY17 v the Minister for Immigration and Border Protection [2019] FCA 1592 at paragraphs 33 to 40 and MBJY v the Minister for Immigration [2020] FCA 1161 at paragraphs 75 to 80 and the cases cited therein.
(Without alteration.) (Transcript p8; Exhibit R1, para 30)
The Applicant cites, and the Tribunal has regard to, the comment by Branson J in
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 at [43] that
‘“This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing”’ (Exhibit A1 para 29).
The Applicant’s offending in the UK is detailed at paragraph [10] above.
The Respondent notes that ‘The applicant was just under 20 years of age when he received his first caution for criminal damage, 21 years of age when he was cautioned for drug possession, and 26 years of age when he received the second caution for criminal damage in June 2011 (which was only 1 year prior to his conviction for the third criminal damage)’ (Exhibit R1, para 31.2).The Tribunal agrees with the Respondent that ‘The Applicant’s UK offending clearly falls into the minor offences category.’ (Transcript p35), however notes with concern that the Applicant did not accurately declare details of his UK offending in his Application for Australian Citizenship by Conferral dated 12 July 2019 (T8/130), despite a warning to the effect that it was an offence to deliberately make a false or misleading statement,
or conceal circumstances, in such an application (T8/134).Noting the passage of time since the Applicant’s UK offending behaviour,
and the Magistrate’s comment in the AOBH sentencing on 22 September 2017 that:
‘It seems to be a different type of offence ... ’ (T13/184), the Tribunal concludes that the UK history is not sufficient to find that the Applicant fails the character test, but rather casts a shadow over the Applicant’s character.The tenor of the Applicant’s submissions and contentions in relation to the AOBH can be summarised as follows:
a. When the Applicant pleaded guilty to the AOBH charge he was not fully aware of the relevant Statement of Material Facts and the evidence against him
(Exhibit A1, para 26). He pleaded guilty ‘solely on proportionality’ and the advice of his lawyer (Exhibit A2, para 12);b. There are serious inconsistencies in the accounts, statements and reports given by the Uber driver and assessment of the credibility of his evidence is necessary to evaluate the seriousness of the offence and the character of the Applicant (Exhibit A1, paras 32, 33). The hospitalisation of the Uber driver, including the duration of that hospitalisation, was more related to his pre-existing conditions rather than being hit by the Applicant (Transcript p33);
c. The Applicant and his partner shared two bottles of white wine between approximately 7 pm and 1 am prior to the AOBH, and he was ‘not particularly drunk’ at the time of the offence (Exhibit A1, para 34 b). Excessive alcohol was not a factor in the altercation with the Uber driver (Exhibit A3, para 10 d);
d. The AOBH altercation was over within the conscious reaction time (Exhibit A2, paras 20, 21 refer) of the Applicant. The moment the Applicant was cognizant of the situation and his actions he removed ‘himself and his partner from danger despite himself having been punched in the face for no apparent reason’ (Exhibit A2, para 22)
e. The Applicant’s action in hitting the Uber driver two or three times in rapid succession was consistent with normal community standards as the average person would likely defend himself and a loved one against assault (Transcript p7);
f. The delegate was wrong in expecting the Applicant to be remorseful when the
Uber driver started the altercation by punching the Applicant in the face, and any such expectation was ‘an entirely preposterous proposition’ (Exhibit A2, para 26); andg. Although the sentencing Magistrate found the AOBH to be serious, he also remarked that the Applicant was unlikely to reoffend. This shows that the offence was out of character and that the Applicant is of good character (Transcript p37).
The Applicant’s submission that his conviction and sentence for AOBH should not be considered as prima facie evidence in determining his character is underpinned by his assertion that the Uber driver hit him first, and that he responded in self-defence and to protect his partner and her honour. The Tribunal has regard to the following factors in its consideration of this assertion:
a.The Applicant had legal representation when he pleaded guilty to unlawfully assaulting a person, doing him bodily harm on 14 April 2017 (T13/176).
The Respondent notes that ‘The applicant did not avail himself of the complete defences of provocation and self-defence under ss 246 and 248 of the Criminal Code (WA), nor could he on the facts accepted by him and as found by the Magistrate’ (Exhibit R1, para 10, footnote 11). The Applicant told the Tribunal that even without his lawyer he ‘definitely would have pled guilty, because it was –
my response was disproportionate’ (Transcript p19);b.The Applicant accepts that the Uber driver’s position was that he did not strike the Applicant (Transcript p27). In his sworn statement dated 14 April 2017 (ST5/211-215), the Uber driver makes no mention of striking the Applicant. He states that the Applicant started swearing, using the ‘“F word”’, and called him a ‘“Fucking wog”’ (ST5/213);
c.The relevant Statement of Material Facts (ST5/209) states that ‘The accused made admissions to punching the victim numerous times to the head in self-defence after being punched by the victim whilst he was sitting in the driver’s seat.’
The Statement does not say that the Uber driver struck or punched the Applicant. Further, the record of the Uber driver’s emergency call made shortly after the altercation makes no mention of the Uber driver striking the Applicant (Exhibit A1, para 17);d.Prior to the hearing, the Applicant was consistent in claiming that the Uber driver hit him first by punching him in the face (See, for example, Exhibit A2, paras 4, 16 and 18; Exhibit A3 paras 9b and 9c; ST5/209.) In his closing submissions during the hearing, Mr Pike used the phrase, ‘he had been smacked in the mouth’ (Transcript p34). However, the Applicant gave a different version during the hearing. The Applicant told the Tribunal that the Uber driver lifted his left arm and hit him ‘like, in a slap in the face’ (Transcript p16);
e.There is no dispute that the Applicant’s fiancée was in the Uber vehicle when the AOBH occurred. The Applicant recalls that ‘she just – just – just screamed’ (Transcript p16), while in his statement dated 14 April 2017 the Uber driver states: ‘I could hear the woman shouting at the male to stop hitting me’ (ST6/238).
During cross-examination by Mr Papalia related to his police interview on 12 July 2017, the Applicant accepted that the police put to him ‘your missus had said Liam, don’t hit him, he is an old man’, and that he responded ‘I don’t give a fuck,
he just hit me in the face’ The Applicant further accepted that the police put to him that his fiancée had said ‘“I am very sorry”’ to the driver, and that the Applicant had said ‘“stupid old cunt, I am not sorry”.’ The Applicant agreed that it was
‘very, very possible’ that those things had been said (Transcript p26).The Applicant’s acceptance of this verbal exchange with his fiancée, and the language used in the exchange, puts in serious question his submission that
‘the entire altercation was over within the conscious reaction time of the Applicant, with the blows struck by the Applicant being delivered within the pre-conscious period’ (Exhibit A2, para 22) (see also paragraph [31d] above);
f.The Applicant includes mention of his then fiancée (now wife) in his Statutory Declaration dated 29 October 2019 (T13/171; paragraph [7a] above refers). Although as a nurse, the Applicant’s wife would be a person before whom a declaration may be made, the Tribunal considers it unusual in the present circumstances where she is the spouse of the person making the declaration and a party to the document;
g.The Tribunal is of the view that nothing in the material before it relevant to the AOBH incident indicates that there was a physical threat to the Applicant’s fiancée or a threat to her honour;
h.The Applicant told the Tribunal that his fiancée is a fully qualified nurse who witnessed that the Uber driver was fully conscious when the Applicant got his wife out of the car (Transcript p14). He agreed that she took no action beyond a quick observation to ascertain whether the driver was alright, and that they were out of the vehicle ‘all in a split second … within two or three seconds’ (Transcript p17);
i.In the Magistrates Court proceedings on 22 September 2017, there was some discussion about who commenced the physical confrontation. The Prosecution did not resile from its position that the Uber driver did not commence the confrontation. Rather, the Prosecution did not dispute the Applicant’s response, and submitted that ‘even if one punch was thrown by the Uber driver’, the Applicant’s response was ‘disproportionate and over the top’ (T13/178-179).
The Tribunal considers it regrettable that the Applicant’s wife did not provide a witness statement or give oral evidence in these proceedings. Had she done so, the Tribunal would have been provided with the opportunity to adduce information relevant to the situation on 14 April 2017, and the Tribunal draws a negative inference from her failure to do so.
In Minister for Home Affairs v Sharma [2019] FCA 597 at [20], Anastassiou J put how criminal convictions should be considered by a Tribunal (adopting the language of Bromberg J in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78] as follows:
1)Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction
(or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.2)Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
In his submissions the Applicant has generally sought to minimise his assault on the
Uber driver and effectively asserts that he is innocent of the charge (T13/171).
The Tribunal accepts that there appears to be inconsistencies in the Uber driver’s accounts of the assault arising from his later Criminal Injuries Compensation Application (Exhibit A1, para 11 refers), however agrees with the Applicant’s own comment that some of the evidence offered by the Applicant may ‘seem to be of questionable relevance’ (Exhibit A1, para 2). The Tribunal notes that the material provided to the Applicant by the Department of Justice, Criminal Injuries Compensation was provided solely for preparation of a response to the Uber driver’s application for compensation (ST6/226).There is relevant evidence that:
a.Police attended the scene subsequent to an emergency call by the Uber driver and after the Applicant and his fiancée had departed, and requested ambulance attendance;
b.The Fiona Stanley Hospital (FSH) Emergency Medicine Summary records the presenting complaint as ‘Injury – Head – Blunt Injury. Uber Driver Assaulted By Intoxicated Passenger. Hit With Fist Multiple Times To Top Of Head + To Face’ and noted the principal diagnosis as ‘Head Injury, Close & ? Duration Loss Of Consciousness’ (ST6/273);
c.The FSH Discharge Summary for the Uber driver’s admission from 14 April to
19 April 2017 records the presence of ‘small left scalp haematomas’ (ST6/275),
and details the following clinical synopsis:-Assaulted by a drunken passenger of his uber.
-Punched in the head multiple times, hitting his head on the window.
-Lost consciousness, after which he roused enough to call an ambulance.
-Reasonable memory of the event.
-Nausea, but no vomiting.
-Complaining of back, neck and head pain currently.
-Feeling dizzy and nauseous.
-Complaining of blurred vision
(Without alteration.) (ST6/274)d.In his sentencing remarks on 22 September 2017, the sentencing Magistrate stated that the Applicant had been an ugly and violent drunk at the time of the AOBH, and that the fine of $6,000 he was imposing needed to mark
‘the seriousness of what took place’ (T13/182).The Tribunal has regard to the certificates of appreciation awarded to the Applicant and his company recording support and donations to community organisations (Exhibit A7).
The Tribunal also has regard to the three character references provided by the Applicant (Exhibits A8, A9 and A10), cognizant of the advice guidance at paragraph [22] above from the Policy. These references indicate that the Applicant engages in prosocial relationships and makes a contribution to the Australian community. The references are not made as statutory declarations and all three contain no mention of the Applicant’s UK offending history. Further, the character reference dated 29 May 2020 is potentially biased by the referee being an employee of the Applicant. These references do not educe significant support for the Applicant’s submissions.CONCLUSION
Having careful regard to all the material before it, the Tribunal is not satisfied that the Applicant meets the heavy onus upon him to show why the AOBH conviction and sentence should not be held as prima facie evidence in determining his character.
The Tribunal is unable to reach an affirmative conclusion that the Applicant is of good character for the purposes of s 21(2)(h) of the Act.The spirit of the Citizenship Act provides an enduring right for the Applicant to apply again for citizenship. The Respondent correctly notes that the Tribunal’s finding on whether or not it is satisfied that the Applicant is of good character is not immutable (Transcript p36).
A person who has failed to satisfy the requirement to be of good character may,
with the passage of time, demonstrate behaviour, attitudes and other positive attributes which might support a future finding that the person is of good character for the purposes of the Act.DECISION
The reviewable decision, being the decision of a delegate of the Respondent dated
7 February 2020 to refuse the Applicant’s application for Australian citizenship by conferral, is affirmed.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Brigadier
A G Warner, AM LVO (Retd), Member....................[sgd]....................................................
Associate
Dated: 12 February 2021
Date of hearing: 18 January 2021 Advocate for the Applicant: Barry Pike Solicitors for the Applicant: Western Australian Migration Services Counsel for the Respondent: Jon Papalia Solicitors for the Respondent: Australian Government Solicitor
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