Teoh and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 2577

Teoh and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 2577 (19 July 2024)
Division:GENERAL DIVISION
File Number(s): 2023/3713
Re:Jana Kean Hooi Teoh
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:19 July 2024
Place:Canberra

Being satisfied for the purposes of s 21(2) of the Australian Citizenship Act 2007 that Mr Teoh is of ‘good character’ and eligible for conferral of Australian citizenship, the decision under review is set aside and in substitution thereof, under s 24(1) of that Act, the Tribunal decides to approve Mr Teoh’s application to become an Australian citizen
......................[SGD]..................................................
Mr S. Webb, Member
Catchwords
AUSTRALIAN CITIZENSHIP – application for conferral of citizenship refused on character grounds – permanent resident – applicable citizenship policy – relevant considerations – enduring moral quality – good character – decision set aside and substituted
Legislation
Australian Citizenship Act 2007 (Cth), ss 21, 24, 52
Cases
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663
Razeghi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3113
Secondary Materials
Australian Citizenship Policy Statement
Citizenship Procedural Instructions
REASONS FOR DECISION
Mr S. Webb, Member
19 July 2024

Jana Teoh is a citizen of Malaysia who holds a Resident Return (subclass 155) visa in Australia. He arrived in Australia with his parents as a child and was convicted of a number of offences. After many years, he applied for conferral of Australian citizenship. A delegate of the Minister decided to refuse his application on character grounds. Mr Teoh applied for review of this decision by the Tribunal.
Facts
I am satisfied the following facts are established by the evidence before the Tribunal.
On 2 August 1980, Mr Teoh first arrived in Australia on a BF-R Permanent resident visa with his father, mother, sister and brother. He was 15 years old. The family resided in Sydney.
Mr Teoh attended primary and high school in the Sydney area.
In 1992, he enrolled in a Bachelor of Science Degree at Macquarie University.
Mr Teoh did not complete the Degree and commenced a landscaping business. He attended TAFE from 1993 to 1997 and obtained an Associate Diploma of Science (Landscape).
For 32 years, Mr Teoh has been self-employed in his landscape construction business.
From 1993 to 2004, Mr Teoh held a security industry licence. He was employed in this capacity from 1999 to 2004.
Mr Teoh engaged in physical and sporting activities, including with the ACCA Dragon Boat Racing Team.
On 20 December 1991, Mr Teoh obtained an Unrestricted Class 1A Driver’s Licence. On 20 May 1994, 8 November 1994, 30 March 1996 and 8 September 1996, Mr Teoh committed traffic offences: 1 count of ‘drive contrary to stop sign’ and 3 counts of ‘exceed speed limit by more than 15 km/h but not more than 30 km/h whilst driving a motor vehicle’.[1] On 3 February 1997, Mr Teoh’s driver’s licence was cancelled.
[1] Exhibit 2, page 56.
On 5 June 1997, Mr Teoh was issued an Unrestricted Class 1A Driver’s Licence.[2] He committed 4 further speeding offences, and his licence was suspended on 9 June 1999 with effect from 17 June 1999. This decision was lifted on 15 July 1999.
[2] Ibid.
On 16 May 2000, Mr Teoh was issued an Unrestricted Class C Driver’s Licence. On 11 August 2000 Mr Teoh was fined $162 for negligent driving. On 15 December 2000, his driver’s licence was again suspended from 19 January 2001 to 19 April 2001.[3]
[3] Ibid, page 55.
On 5 January 2002, Mr Teoh committed an “unlicensed driver/rider – wrong class” offence for which he was fined $336.
On 2 May 2002, Mr Teoh was issued a Learner Licence (Class R).[4] On 17 August 2002, Mr Teoh’s Class C Unrestricted Licence and his Class R Learner’s Licence were suspended for fine default with effect from 30 August 2002 to 19 November 2002.[5]
[4] Ibid.
[5] Ibid.
On 23 June 2003, Mr Teoh was issued with a Class C driver’s licence. This licence was suspended from 25 November 2003 to 25 December 2005 for fine default.[6]
[6] Ibid, page 54.
On 24 March 2004, Mr Teoh committed a speeding offence, exceed speed limit by more than 15 km/h but not more than 30 km/h, and he was fined $203.[7]
[7] Ibid.
On 22 October 2004, following the receipt of information and having obtained a warrant, NSW Police conducted a search of Mr Teoh’s home, where he resided with his parents. Three rifles, two computer hard drives and other items were seized. Mr Teoh attended an interview with police on 1 November 2004 in respect of which the NSW Police Facts Sheet states:
… The accused made admissions to the possession of the firearms and prohibited weapons… In regard to the possession of child pornography which was located on his hard drive the accused made admissions to paying for some of the images and that they were saved onto his hard drive. He made further admissions that some of the images contain persons aged under 13 years old and that he saved them for his pleasure...[8]
[8] Ibid, page 3.
The images on Mr Teoh’s hard drive were sent to the Office of Film and Literature Classification (OFLC) on 19 November 2004 for classification. On 21 December 2004, the OFLC issued a certificate of ‘refused classification’ under the Films Table of the National Classification Code as the images “depict in a way that is likely to cause offence to a reasonable adult, a person who is, or who looks like, a child under 16 (whether the person is engaged in sexual activity or not)”.[9]
[9] Ibid.
On 22 December 2004, Mr Teoh was charged with child pornography, firearms and prohibited weapon offences.
On 28 June 2005, Mr Teoh was convicted of the following offences:[10]
(a)two counts of ‘possess child pornography’;
(b)two counts of ‘possess unauthorised firearm – T2’; and
(c)two counts of ‘possess/use a prohibited weapon w/o permit – T2’
[10] T6 and T20.
He was sentenced to periodic detention for 10 months for the child pornography offences and to four months periodic detention for the firearm offences. He was fined $150 for the prohibited weapon offences.[11]
[11] Ibid, Exhibit 2, pages 51-52.
As a result of his child pornography offences, Mr Teoh was placed on the Sex Offenders Register and he was required to report his movements until 2014.
On 15 August 2005, Justice Blanch heard Mr Teoh’s severity appeals in respect of the child pornography and firearms offences. His Honour confirmed the convictions but reduced the sentences. Mr Teoh was given a 200 hour community service order in respect of the child pornography offences and a cumulative 200 hour community service order in respect of a firearm offence involving a .22 calibre rifle.[12] Mr Teoh was placed under a 3-year section 9 bond with conditions supervised by the NSW Probation Service, commencing on 15 August 2005 in respect of firearms offences relating to an air rifle and a shotgun and the prohibited weapon offence (involving a rocket launcher).[13] It was a condition of bond that he “Obey all reasonable demands of Probation and Parole Service including as to undertaking Sex Offenders’ Programme”.[14]
[12] Exhibit 2, pages 24, 27, 30 and 44.
[13] Ibid, pages 25, 26 and 28.
[14] Ibid, page 29.
Mr Teoh’s driver’s licence was suspended from 18 October 2005 to 21 December 2005 for fine default.[15] On 16 November 2005, Mr Teoh was stopped while driving by NSW Police and informed his driver’s licence was suspended from 18 October 2005 for fine default.[16]
[15] Ibid, page 54.
[16] Ibid, pages 23 and 54.
On 16 December 2005, Mr Teoh was detected driving an unregistered vehicle by NSW Police – the vehicle registration had been cancelled on 22 November 2005 for fine default.[17] From 27 January 2006 to 12 March 2007, Mr Teoh’s driver’s licence was suspended for fine default.[18]
[17] Ibid, pages 45-46.
[18] Ibid, page 54.
On 14 March 2006, in the Hornsby Local Court, Mr Teoh was convicted a “Drive on Road while Licence Suspended” offence committed on 16 December 2005. He was issued a $600 fine and disqualified from driving for 12 months.[19]
[19] T20.
On 28 April 2006, in the Ryde Local Court, Mr Teoh was convicted of a “Fail to hold Valid Ticket for Train Travel” offence committed on 16 December 2005, for which he received a fine of $80.[20]
[20] Exhibit 2, page 37.
On 31 July 2006, the term of Mr Teoh’s Community Service Order was extended to 14 February 2007.[21] Mr Teoh had not completed the hours of service required within the specified term of the order.
[21] Ibid, page 40.
On 31 August 2006, Justice Blanch issued a No Action on Breach direction in respect of the 14 March 2006 and 28 April 2006 convictions.[22]
[22] Ibid, pages 41 and 43.
On 25 September 2006, Mr Teoh was released early from supervision under the 3-year bond imposed on 15 August 2005.[23]
[23] Ibid, page 42.
On 15 March 2007, Mr Teoh was issued with an Unrestricted Class C Driver’s Licence.
On 6 May 2008, Mr Teoh committed a “disobey left turn/right turn/no turns sign at intersection” for which he was fined $185.[24]
[24] Ibid, page 54.
On 30 September 2011, Mr Teoh committed the offence of “drive using hand-held mobile phone” and was fined $265.[25]
[25] Ibid.
On 12 November 2015, Mr Teoh committed an “exceed speed limit by not more than 10 km/h whilst driving a motor vehicle” and he was fined $112.[26]
[26] Ibid.
On 22 November 2019, Mr Teoh committed the offence of “disobey traffic lights” and was fined $457. On 7 October 2021 and 9 November 2022, he was detected exceeding the speed limit by more than 10 km/h for which fines of $124 and $211 were respectively imposed.[27]
[27] Ibid.
On 18 November 2019, Mr Teoh applied for a Resident Return (subclass 155) visa,[28] which was subsequently granted. In the application form, Mr Teoh answered ‘No’ to the following questions:
Has the applicant ever been convicted of an offence in any country (including an offence which is now removed form [sic] official records)?
Has the applicant ever been found guilty of a sexually based offence involving a child (including where no conviction was recorded)?
Has the applicant ever been named on a sex offender register?[29]
Plainly enough, Mr Teoh’s answers to these questions were incorrect. When this was brought to Mr Teoh’s notice in the course of these proceedings, he sought to correct the incorrect answers using a Notification of Incorrect Answers Form 1023. In so doing, he addressed his obligation under s 105 of the Migration Act 1958.
[28] Ibid, pages 83-88.
[29] Ibid, pages 86 and 87.
On 25 September 2022, 24 April 2023 and 6 October 2023, Mr Teoh completed Incoming Passenger Cards on returning to Australia, in which he answered ‘Yes’ to the questions “Do you have any criminal convictions?”.[30]
[30] Ibid, pages 89-91.
On 7 March 2022, Mr Teoh lodged an application for conferral of Australian citizenship.[31]
[31] T4.
On 30 March 2023, the Minister’s Department invited Mr Teoh to comment on adverse information.[32]
[32] T20.
On 4 May 2023, a delegate of the Minister decided to refuse Mr Teoh’s application for conferral of Australian citizenship under s 24(1) Australian Citizenship Act 2007 (Citizenship Act) on the ground he did not meet the criterion set out in s 21(2)(h) concerning good character.[33]
[33] T2(a).
On 29 May 2023, Mr Teoh lodged an application for review of this decision by the Tribunal.[34]
[34] T2.
Issues
The issues for determination in this review are:
(a)Mr Teoh’s eligibility for conferral of Australian citizenship under s 21(2) of the Citizenship Act; and
(b)his application to become an Australian citizen under s 24(1) of the Citizenship Act.
There is no controversy, correctly in my assessment, Mr Teoh satisfies the eligibility grounds in s 21(2)(a), (b), (c), (d), (e), (f) and (g) of the Citizenship Act. The sole eligibility issue in contention is whether he is of ‘good character’ for the purposes of s 21(2)(h).
This assessment is to be made presently, at the time of this decision.
Law and policy
The Tribunal’s jurisdiction is conferred by s 52(1)(b) of the Citizenship Act:
(1) An application may be made to the Administrative Appeals Tribunal for review of the following decisions:
…
(b) a decision under section 24 to refuse to approve a person becoming an Australian citizen;
…
(3) For the purposes of the Administrative Appeals Tribunal reviewing a decision of a kind referred to in paragraph (1)(b):
(a) the Tribunal must not exercise the power under subsection 22A(1A) or 22B(1A); and
(b) the Tribunal must not review any exercise of the power or any failure to exercise the power.
Relevantly, s 24 is in the following terms:
(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.
Note: The Minister may cancel an approval: see section 25.
(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)….
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2)….
…
Subsection 21(2) is in the following terms:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
…
These provisions frame the Tribunal’s review in this case. For the purposes of reviewing the decision to refuse Mr Teoh’s application for conferral of citizenship under s 24(1) of the Citizenship Act, the Tribunal may exercise all the powers and discretions conferred upon the decision maker, and it is subject to the same limits.
The term ‘good character’ is not given any specific meaning in the Act. It is to be understood in the statutory context of the Act, which provides the following preamble:
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.
The term has been construed according to its ordinary meaning:
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 moralqualities 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.[35]
[35] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663 (Irving); (1996) 68 FCR 422, at 431-432.
The Minister’s Department has promulgated policies of relevance to this review. These are set out in the Australian Citizenship Policy Statement (Policy)[36] and the Revised Citizenship Procedural Instructions (CPIs)[37].
[36] T22.
[37] T23.
CPI15 provides a framework for assessing the ‘good character’ of an applicant for the purposes of the Act. The Instruction provides the following guidance:
This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
-    consider any character issues that arise on the facts of a case;
-    consider all relevant information;
-    guard against bias;
-    be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
-    be mindful that a person who may not have been of good character can become a person of good character;
-    continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.
The following guidance is given in respect of the term ‘enduring moral qualities’:
The phrase ‘enduring moralqualities’ encompasses the following concepts:
-    characteristics which have endured over a long period of time;
-    distinguishing right from wrong; and
-    behaving in an ethical manner, conforming to the rules and values of Australian society.
It emphasises that in assessing good character it is necessary to view an applicant’s circumstances holistically:
-    The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
-    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 the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
The following exemplary indicia of ‘good character’ are given:
As a general proposition, 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);
-    not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
-    intentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
-    evading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
-    knowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
-    concealing criminal convictions;
-    fraud against the Commonwealth such as tax fraud or Centrelink fraud;
-    giving false names and/or addresses to police;
-    not be the subject of any extradition order or other international arrest warrant;
-    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);
-    not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
-    not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide
-    not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
…
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

Paragraph 12 of CPI 15 sets out a framework for the consideration of any criminal offences, including the seriousness of offences:
Decision-makers can only act on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct…
The necessity to act on the basis that the conviction is correct will apply regardless of whether the applicant maintains his or her innocence. If the conviction or sentence was appealed, the decision-maker should take the outcome of the appeal into account, not the original finding or sentence, except insofar as the original finding or sentence remains relevant (for example, particular views expressed by the trial judge may be referred to with approval by an appeal court).
…
If the applicant has committed an offence, was it serious offence? For example:
-    crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death);
…
-    illegal pornography, including child pornography;
…
-    offences incurring prison sentences of 12 months or more.
…
Minor offences may include:
…
-    some traffic offences that have been included in a criminal record. An ‘on the spot’ fine would usually have little weight in a character assessment, unless the applicant has a history of such fines. This disregard for the law may be relevant to the assessment of character;
…
Under the Policy and the Instruction, decisions about ‘good character’ should be made on a principled basis:
In addition to the general principles of good decision-making set out in CPI 17 – Decision-making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:
-    characterise the nature of any offence or behaviour
-    is the offence serious or minor?
-    did the offence harm other people?
-    who were victims?
-    is there a pattern of behaviour?
-    was it a one off incident?
-    were there extenuating circumstances?
-    Consider any associations with people or organisations of concern.
-    Consider any mitigating circumstances:
o   length of time since the offence was committed
o   age at time of offence
o   behaviour since completing prison sentence or obligations to court
o   remorse regarding their offending behaviour
o   community support (referee reports etc)
o   changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moralqualities.
…
The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.
Decision-makers should consider the following matters:
-    Would a person of good character behave the way the applicant did?
-    What evidence is there to demonstrate that the applicant has upheld and obeyed the law?
-    Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?
-    Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?
-    Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?
-    Are there any other factors that are relevant to an assessment of the applicant’s character?
...
A decision-maker needs to look holistically at an applicant’s behaviour over time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.
If a person has committed a serious offence (such as murder, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the period would be much longer, potentially over a period of many years. Depending on the offending and the circumstances, it may be extremely difficult for a decision-maker to be satisfied that a person is of good character, even after the passage of many years.
Submissions
Mr Teoh submits he meets the ‘good character’ threshold. He relies on character references and letters of support which have been provided to the Tribunal, particularly the evidence of his long-term friend David Emanuel, who gave written[38] and oral evidence.
[38] See Exhibit 6, for example.
Mr Teoh alleges he has reformed and he recognises the harm and moral wrong of his previous offending conduct. He explained his criminal offences were committed at a difficult point in his life, soon after the end of an intimate relationship. He expressed remorse for what he did and gave evidence of the changed circumstances in his family, life, work and activities over the subsequent 20 years. In his submission, he has reformed: he is not the young man he was, and he has gained insights into his previous conduct which are reinforced by the values to which he adheres, as demonstrated by his family life and his social and community activities in Australia.
Regarding his long record of traffic infringements, Mr Teoh acknowledges his previous offences. He submits his driving record should be considered in 3 sections.[39] The first section from 1992 to 2005 Mr Teoh describes as “terrible”.[40] He describes the second period from 2005 to 2006 as one in which he encountered issues with unpaid road tolls and fines which resulted in suspension of his driver’s licence while running his landscaping business. He explained he did not have “a full understanding of what it means to drive unlicenced”.[41] Mr Teoh noted in the third period, from 2007 to 2024, he has only 6 traffic infringements of a minor nature, which resulted in him losing no more than 6 demerit points in any 3-year period.[42] Mr Teoh submits there has been a substantial improvement in his driving record since 2007. He puts his more recent offences down to the large amount of time he is required to spend driving in his business and the amount of kilometres he traverses as “an above average user with minor infringements for an 18 year period”.[43]
[39] Exhibit 4, page 1.
[40] Ibid, page 2.
[41] Ibid, page 3.
[42] Ibid, page 4.
[43] Ibid.
With regard to his provision of incorrect answers in the application he lodged for grant of a Resident Return (subclass 155) visa in 2019, Mr Teoh explained this was an oversight on his part which occurred in a “rush to upload the document”.[44] As soon as he became aware of the incorrect information, Mr Teoh asserts he acted promptly to correct it and this demonstrates his good character.
[44] Exhibit 5.
It is Mr Teoh’s contention he views himself as Australian, his wife of 20 years and his children are Australians and he has no other home than Australia. He asserts he has never attempted to downplay his crimes and, as an adult, he has always worked, “helping out the broader community with my landscape construction business”.[45] Mr Teoh gave evidence of his engagement with community, charitable and sporting activities in the community, and his belief that “life is an apprenticeship” in which he has learned from his mistakes.[46] For these reasons, Mr Teoh argues the Tribunal should be satisfied that he is now of good character and his application for conferral of Australian citizenship should be approved.
[45] Exhibit 3, page 7.
[46] Ibid and Exhibit 4, page 5.
The Minister asserts the Tribunal should not be satisfied Mr Teoh is of good character. It is the Minister’s submission Mr Teoh’s child pornography and firearm offences weigh heavily against a finding of good character. The Minister argues Mr Teoh’s child pornography offence is serious and not indicative of the qualities associated with good character. In particular, Justice Blanch's observations that Mr Teoh’s purchase of the images added fuel to the market for child pornography, and further, the exploitation of children in order to produce it, reinforces the Minister’s point.
This notwithstanding, the Minister accepts Mr Teoh has demonstrated some insight and remorse with respect to his child pornography and firearm offences, but contends he has not provided any insight or explanation with respect to his history of traffic infringements. The Minister asserts, as a general proposition a person who is of good character would respect and abide by the law in Australia and not cause harm to others through their conduct, such as by speeding or driving without a licence. The Minister contends that the Tribunal should adopt the observations made in Bartlett and Minister for Immigration and Border Protection[47] in respect of the potentially serious adverse consequences of unlicensed driving for other road users and the incapacity to distinguish right from wrong such conduct demonstrates.
[47] [2017] AATA 1561.
The Minister contends that the applicant's previous failure to disclose his child pornography offence and inclusion on the sex offender register as recently as 2019 weighs against a finding of good character.
The Minister acknowledges that it has been 18 years since Mr Teoh’s conviction for his most recent offence, and 19 years since his conviction for the child pornography and firearm offences. Nevertheless, relying on what the Tribunal said in Razeghi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[48] the Minister contends that the length of time should be attributed limited weight in light of the seriousness of Mr Teoh’s offending, in particular, the child pornography offence.
[48] [2021] AATA 3113 at [54].
Good character and eligibility
In order to address the statutory question of ‘good character’ posed by s 21(2)(h) of the Citizenship Act, it is necessary to make an objective assessment of the enduring moral qualities of the person in consideration of all the relevant evidence. In this context, satisfaction requires an affirmative belief the person is of ‘good character’. It does not require a high degree of confidence, but it does require more than a chance the person is of good character.[49]
[49] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [55].
Mr Teoh’s child pornography offence must be viewed as serious. Child pornography is illegal, inherently abhorrent and not tolerated in Australia. The purchase of child pornography promotes the market for child pornography and it funds the sexual exploitation and abuse of children. The possession and use of child pornography perpetrates abhorrent sexual ideation and the sexualisation of children. These are matters which do not align with conceptions of moral quality or indicia of ‘good character’.
Even though Justice Blanch considered the offence to be at the lower end of child pornography offences, the child pornography material was in the form of 60 images of children, some of whom were likely under 13 years old, in states of undress and provocative poses.[50] By his own account, Mr Teoh paid for these images, albeit in a single payment for access. He admitted the images were downloaded onto his computer and he repeatedly accessed them for sexual gratification purposes before being charged and convicted. In his evidence, Mr Teoh gave a full and frank account of what occurred and his motivations at the time.
[50] Exhibit 2, page 19.
At the time of this offending conduct, Mr Teoh was 29 years old and an intimate relationship in which he was engaged had come to an end. I accept this might have had an emotional effect on him at the time. While it is possible this might have affected Mr Teoh’s behaviour at the time, it does not explain his interest in child pornography. Mr Teoh explained he was lonely and he spent time surfing pornography sites on the internet. His curiosity led him to access the site from which the child pornography images were downloaded onto his computer. There is no evidence his emotional state informed his repeated use of the downloaded images for sexual gratification purposes.
With regard to rehabilitation, there is no evidence Mr Teoh engaged in a program for sexual offenders, or that he was required to do so under the terms of the Bond which was in effect until 25 September 2006. Nevertheless, the Minister is correct to accept that Mr Teoh has insight into his previous child pornography offences, including the adverse effect of purchasing such material and, in so doing, supporting the sexual exploitation and abuse of children in its production. I am satisfied Mr Teoh’s insight into his previous child pornography offending is clear-eyed and his remorse is genuine. There is no evidence Mr Teoh has engaged in any similar conduct in the last 20 years or that there is a risk he might do so in the future. Nevertheless, Mr Teoh’s child pornography offence stains his character.
Mr Teoh’s firearms offences are also of a serious nature. In the search of his home, three firearms were located: a .22 calibre rifle, a shotgun and an air rifle. Mr Teoh did not have a licence for each of the firearms, which were not kept in secure storage. While Mr Teoh had previously been issued a firearms licence, this had lapsed several years before the time of the offences. The retention of firearms in this manner is a serious matter which poses an unacceptable risk to the community and weighs on Mr Teoh’s character.
The offence involving a prohibited weapon is of a less serious nature, as indicated by the level of penalty imposed – a fine of $150. The prohibited weapon was a used rocket launcher, without any ammunition, which Mr Teoh obtained and retained as a souvenir. This does not bear significantly, one way or the other, on Mr Teoh moral qualities or his character.
There is no controversy Mr Teoh expressed genuine remorse for and clear insight into his previous firearms offences. Mr Teoh does not presently own a firearm and he explained he moved on from his previous interest in firearms and shooting long ago. His evidence is that at the time of the offences, he retained the firearms for sentimental reasons.
Mr Teoh’s provision of incorrect information to the Minister’s Department when applying for a Resident Return visa in 2019 is not disputed, and it weighs against his good character. The incorrect information was deceptive or, at best, prone to mislead in the period before Mr Teoh acted to correct the information.
While the provision of incorrect information in the visa application form may have been a mistake or an oversight as Mr Teoh alleges, he made a declaration the information in the form was “complete and correct in every detail”[51]. The declaration is objectively false. Making a false declaration cannot be passed off as an oversight, it requires an act of deliberate decision-making. By making the declaration, Mr Teoh was attesting to the accuracy of the information he provided in the form. On his account, he was in a rush to upload the visa application as he required a new visa prior to departing on an overseas trip. If that is correct, it suggests a cavalier approach to his dealings with the Minister’s Department, in which Mr Teoh placed his self-interest in obtaining a visa ahead of his legal obligation to ensure the information he provided in the application form was complete and correct in every detail. Mr Teoh’s conduct in this regard does not well align with the attributes of a person of good character with enduring moral qualities who is capable to distinguishing right from wrong.
[51] Exhibit 2, page 88.
The same can be said of Mr Teoh’s long record of traffic infringements. His infringements include repeated medium range speeding offences, as well as offences disobeying road signs and traffic lights, and driving without a licence or current registration. While it is factually correct that most of his traffic offences occurred more than 10 years ago, within the last 10 years Mr Teoh has committed traffic offences involving speeding on 3 occasions and disobeying a traffic light on one occasion.
Mr Teoh’s history of traffic infringements points to his continuing disregard for Australian laws which are for the purposes of protecting the community from harm and protecting the safety of road users, including passengers and pedestrians. It appears Mr Teoh places his interests, in particular his business interests, ahead of other considerations relating to the safety of others on the roads and the protection of the community from the risk of harm. Mr Teoh’s history of violating traffic laws smacks of convenience and a disregard for the harm prevention and community safety purposes those laws effect.
Mr Teoh’s expressed remorse for and insight into his history of traffic offences. He explained the understanding he has developed of the importance of licenced driving and vehicle registration in respect of insurance and, in breach, the potential for harm to road users and the community. A licence to drive is a permission conditioned by qualification and regulated by law. Mr Teoh has lost his qualification and he has breached the law on a number of occasions over many years. That he cavils with the grounds for his loss of qualification (through the non-payment of fines and tolls) and offers excuses for his repeated violation of traffic laws, suggests he might not yet fully comprehend the significance of the history of traffic infringements he professes to fully accept, and he may not yet have learned the lessons of this history.
Mr Teoh asserts his infringements are a consequence of his heavy road usage and the distances he travels in his business. But this is no answer to the actual causes of Mr Teoh’s traffic offences, which lie squarely in decisions he has made to speed or to disobey traffic lights or signs, and to disobey licence and registration requirements. Mr Teoh asserts he fully accepts his “traffic infringement history was poor from a responsible road users point of view”[52] and “a drivers licence is a privilege and not just a right”[53]. Mr Teoh’s traffic infringement history cannot be treated as something in the past when he has continued to offend, albeit less frequently than in the past, including since he applied for conferral of Australian citizenship. References to privilege and rights do not assist his case.
[52] Exhibit 4, page 4.
[53] Ibid, page 5.
Nevertheless, in order to make the correct or preferable decision in this case, it is necessary to consider the whole of the materials before the Tribunal, and to look holistically at Mr Teoh’s behaviour and his conduct over time in order to determine if he is possessed of enduring moral qualities consistent with a person of good character, distinguishing right from wrong, behaving ethically and conforming to the rules and values of Australian society.
While the stain of the criminal offences Mr Teoh committed on his character is not indelible, even after many years the blemish remains to some extent. Mr Teoh’s record of traffic infringements and his provision of incorrect information to the Minister’s Department suggest a cavalier disregard for legal obligations which runs counter to moral qualities associated with good character in this context. This weighs against a finding of good character.
The weight to be given, however, is outweighed by the contrary evidence of Mr Teoh’s enduring moral qualities in his family life, his social and community involvements and his business activities, as well as the character references in evidence[54]. In the 20 years since he committed criminal offences in 2004:
[54] See for example Exhibit 2, pages 4-7; Exhibit 6; Exhibit 7.
(a)Mr Teoh married the Australian citizen who was his girlfriend when he was convicted of the criminal offences, who has full knowledge of his offences;
(b)he was released early from supervision under Bond;
(c)he and his wife provide a stable family environment in the house they purchased;
(d)he has two young daughters who are Australian citizens;
(e)he has a supportive network of family, friends and associates;
(f)he has generously assisted Mr Emanuel with his son who has a serious disability, travelling overseas and assisting with employment;
(g)he has ethically operated a successful landscaping business, providing services to clients and paying taxes;
(h)he has repeatedly engaged in charitable activities, providing assistance to those in need;
(i)he has positively engaged in community sporting activities; and
(j)there is no evidence he has engaged in any further criminal activities or conduct.

These factual circumstances point to Mr Teoh’s enduring moral qualities.
I am satisfied Mr Teoh has developed a stable platform with his family, his social network and his business which has supported his maturation into a person more attuned to his responsibilities and the consequences of his actions, and his failings, than the younger man who committed the crimes which blemished his character. Mr Teoh’s history of traffic infringements and his provision of incorrect information to the Minister’s Department notwithstanding, the passage of 20 years and the reformulation of Mr Teoh’s life with his wife and children point to his rehabilitation and his adoption of a clear moral compass.
On balance, when all of the evidence is considered, despite the flaws I have identified, I am satisfied Mr Teoh has developed enduring moral qualities in the 20 years since he committed a criminal offence. His evidence about the values he applies and qualities he demonstrates in his family life, his social and community activities, and in his business is supported by character references and the evidence of Mr Emanuel. This evidence is compelling, and I accept it. It supports a conclusion that Mr Teoh knows right from wrong and behaves in an ethical manner which substantially conforms to the rules and values of Australian society. I am satisfied this is so despite his history of traffic violations and his provision of incorrect information in the 2019 visa application.
While his previous criminal conduct has left a lingering stain on his character, and questions remain about the extent of his insight into the significance of and reasons for his traffic offences and the incorrect information he gave to the Minister’s Department, these are matters to be weighed in the balance. I am satisfied these considerations do not outweigh other considerations which bear on the assessment of Mr Teoh’s enduring moral qualities and his good character for the purposes of s 21(2)(h) of the Citizenship Act. In conclusion, the balance tips in Mr Teoh’s favour.
I am positively satisfied Mr Teoh has moral qualities of an enduring nature. Despite the character flaws I have identified and the factors which weigh against such a conclusion, I am satisfied he is a person of good character for the purposes of s 21(2)(h) of the Citizenship Act. Like anyone, Mr Teoh could benefit from learning from the errors he has committed. I am satisfied he understands this. I am also satisfied Mr Teoh understands the importance of respecting Australian laws and placing a high value on their protective purposes, above the convenience of his personal, private interests. These matters go to the privileges, rights and responsibilities of Australian citizenship for which, I am satisfied, he is eligible.
In conclusion, I am satisfied Mr Teoh meets the good character threshold in s 21(2)(h) of the Citizenship Act. As there is no controversy, correctly, that he meets all the other criteria in s 21(2), Mr Teoh is eligible for conferral of Australian citizenship.
As there is no bar in s 24 to approval of his application, and the Minister has not contended for any ground on which the discretion in s 24(2) should be exercised, it is appropriate to exercise the power in s 24(1) to approve Mr Teoh’s application for Australian citizenship.
Decision
Being satisfied for the purposes of s 21(2) of the Citizenship Act that Mr Teoh is of ‘good character’ and eligible for conferral of Australian citizenship, the decision under review is set aside and in substitution thereof, under s 24(1), the Tribunal decides to approve Mr Teoh’s application to become an Australian citizen.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Member S. Webb.

........................................................................
Associate
Dated: 19 July 2024

Date(s) of hearing: 18 June 2024

Solicitors for the Respondent: Ms G Gutmann, Minter Ellison

Date(s) of hearing:	18 June 2024
Solicitors for the Respondent:	Ms G Gutmann, Minter Ellison