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

Usmani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1153 (13 May 2022)
Division:GENERAL DIVISION
File Number(s): 2021/6462
Re:Nasar Yamin Usmani
APPLICANT

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

DECISION
Tribunal:Senior Member B J Illingworth
Date:13 May 2022
Place:Adelaide

The decision under review is affirmed.
..........................[SGND]....................................
Senior Member B J Illingworth
Catchwords
CITIZENSHIP – Whether applicant was of ‘good character’ for the purposes of s 21(2)(h) – criminal convictions of assault – applicant on good behaviour bond – domestic violence – false declaration in Incoming Passenger Card – Australian Citizenship Act 2007 (Cth) – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
McDonald v Director General of Security (1984) 1 FCR 354
Sun v Minister for Immigration (2016) 243 FCR 220
Secondary Materials
Australian Citizenship Policy
REASONS FOR DECISION
Senior Member B J Illingworth
13 May 2022
INTRODUCTION

The applicant has made an application, pursuant to s 52(1) of the Australian Citizenship Act 2007 (Cth) (the Act), for a review of the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the respondent) dated 19 August 2021, refusing his application for Australian Citizenship by conferral because he did not satisfy s 21(2)(h) of the Act.
The delegate was not satisfied that the applicant was of good character at the time of the decision because on 8 February 2018, the applicant was sentenced at the Adelaide Magistrates Court for seven offences of common assault committed by him when he was a taxi driver, in respect of three female passengers. Further on 9 January 2020, the applicant entered Australia and filled out an Incoming Passenger Card (IPC) in which he did not declare those criminal convictions.
At the hearing before the Administrative Appeals Tribunal (the Tribunal), the applicant appeared in person and was self-represented. Ms Claudia Calabrese of the Australian Government Solicitor appeared for the respondent.
The Tribunal heard evidence from the applicant and four witness were called to attest to his character.
BACKGROUND
The applicant is a 56-year-old citizen of Pakistan and was born on 12 July 1975. He is married with two daughters, currently aged 27 and 26 years, and two sons aged 22 and 20 years. He has a grandson born in Australia. His wife and children are all Australian citizens.
The applicant joined the Pakistan army at 16 years of age, attended university and obtained the qualification as a civil engineer in 1991. He left the Army at 32 years of age and with his family he moved to Dubai where he worked as a civil engineer. He moved to Australia to better his children’s education and arrived in Australia on 15 May 2012 as the holder of a skilled migrant (subclass 176) visa.
The applicant was unable to work as a civil engineer in Australia. He is currently employed as a handyman. He has also been employed as a truck driver, a service station console operator, and for a brief period of three months, as a taxi driver before being charged with offences of assault, which he committed on 7 and 12 June 2015 in respect of three female passenger complainants aged approximately 24, 28 and 32 years of age.
On 2 June 2016, the applicant lodged his first application for Australian Citizenship by Conferral which was refused on 25 September 2017.
On 14 November 2017, the applicant lodged with the Tribunal an application for review of that decision. On 10 May 2018, the Tribunal affirmed the decision to refuse the application for Australian Citizenship on the basis that the prohibition in s 24(6)(a) of the Act applied because the applicant had pending criminal proceedings, namely the assault charges.
On Thursday 2 November 2017, in the Adelaide Magistrates Court before Magistrate O’Connor, the applicant was found guilty following a trial, of seven counts of assault. The complainants were three female passengers. On 8 February 2018, he was sentenced to a total of six months imprisonment suspended on the basis that he be placed on a bond in the sum of $500 to be of good behaviour for two years.[1]
[1] Exhibit B, attachment ST4, page 86.
On 18 September 2019, the applicant was granted a Resident Return (Subclass 155) visa.
On 19 November 2019, the police were called to the applicant’s home following an incident between the applicant and his wife resulting in the applicant being placed on an Intervention Order as a consequence of domestic violence. The applicant said in evidence that the order was for a period of 12 months.[2]
[2] Exhibit B, attachment ST1 page 1 and attachment ST2 pages 17-29, at 18-20.
In January 2020, the applicant and his family travelled to Pakistan. His daughter was then engaged to be married, and the purpose of the travel was for the applicant and his family to celebrate the pending marriage and meet with the extended family members. He returned to Australia on 9 January 2020. He completed an IPC in which he failed to answer the question, “Do you have any criminal convictions?”. He signed the declaration which stated, “The information I have given is true and complete. I understand failure to answer any questions may have serious consequences.”
On 6 February 2021, the applicant lodged a second Application for Australian Citizenship by Conferral which was refused and is the subject of the application before the Tribunal.
On 21 July 2021, the applicant was sent a “Notice to comment on adverse information” (the Notice) in respect of his application for citizenship, which referred to both his Police History Information Sheet[3], which detailed his criminal and road traffic convictions and the incomplete IPC.
[3] Exhibit A, attachment T5, pages 73-74.
On 24 July 2021, the applicant responded to the Notice by email.[4] He said he believed he was of good character because “I completed the good behavior period and there was never any such complaint against me afterwards.” He said in respect of the convictions for assault that he still considered himself innocent, that he was unrepresented in court because he could not afford legal fees, that Legal Services Commission denied him representation, and that he was seriously disadvantaged and could not cross-examine the witnesses. Nonetheless, he accepted the terms of the sentence and completed his good behaviour bond. In respect of the incomplete IPC, he said he did not believe there was any need to mention the offences for which he had already completed his sentence. He questioned why an airline should be concerned about the criminal history while the Department of Immigration had the details of his criminal history. He said, “Why should I be embarrassed every now and then in the presence of random passengers? Do I never get a chance to live a normal life for the rest of my life?” He then wrote, “I didn’t check either of “No” or “Yes” and left it blank which means “I decline to answer” is neither a false or a misleading statement, it is [sic] exercise of my rights. Had there been an utmost necessity the officer receiving it could have returned it to me for incompleteness.”
[4] Exhibit A, attachment T6, page 75.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
The only issue for the Tribunal is whether the applicant is of good character of the time of the Tribunal’s decision and meets the eligibility requirements in s 21(2)(h) of the Act.
LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Act provides that where the Minister receives such application, the Minister must approve or refuse to approve the person becoming an Australian citizen.
Section 24(1A) provides that the Minister must not approve a person to become an Australian citizen unless that person is eligible under ss 21(2) - (8) of the Act. Relevantly in this matter, s 21(2)(h) 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 decision on the application.
In BOY19 v Minister for Immigration and Border Protection,[5] O’Bryan J considered the requirement that a decision maker be satisfied of an Applicant’s good character.
His Honour stated:[6]
“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. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite.[7] Second, the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion.
…
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.”
[5] [2019] FCA 574.
[6] Ibid at [54]-[55].
[7] McDonald v Director General of Security (1984) 1 FCR 354 at 356-7 per Woodward J, 365-6 per Northrop J and 369 per Jenkinson J; Sun v Minister for Immigration (2016) 243 FCR 220 at [6] per Logan J and at [76]-[79] and [95] per Flick and Rangiah JJ.
The term “good character” is not defined in the Act, however, there is guidance on the application of the good character requirement in the Australian Citizenship Policy (the Policy). The Tribunal is not bound to apply the Policy, however, it should give regard to and apply the Policy unless there are cogent reasons not to do so.[8] The Tribunal is not aware of any cogent reason why it should not take the Policy into consideration in this case.
[8] Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634.
Chapter 15 of the Policy sets out the relevant legislative requirements and policy guidelines for Australian Citizenship where good character is involved. It states:
“‘Good character refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.”
In Irving v Minister for Immigration, Local Government and Ethnic Affairs,[9] Lee J said, 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.”
[9] (1996) 68 FCR 422 (‘Irving’).
Chapter 15 of the Policy also sets out the phrase, "enduring moral qualities" as encompassing the following concepts[10]:
(i)characteristics which have been demonstrated over a long period of time;
(ii)distinguishing right from wrong; and
(iii)behaving in an ethical manner, conforming to the rules and values of Australian society.
[10] Exhibit A, attachment T9 (the Policy), paragraph 3.3, pages 102-103.
The Policy also outlines the characteristics of good character as an Applicant who would:
i.respect and abide by the law in Australia and other countries;
ii.be honest and financially responsible;
iii.not practice deception or fraud in dealing with the Australian Government or other organisations, for example:
ointentionally providing false personal information (such as fraudulent work experiences or qualification documents);
oother material deception during visa and citizenship applications;
oconcealing criminal convictions;
iv.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 incidents of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a license)
The Policy also says that the instruction is not to be applied rigidly or inflexibly but provides guidance about the types of behaviour which may give rise to an adverse finding. It is for the Tribunal to exercise its statutory obligation having regard to the facts of the matter.[11] The Policy also informs the need to consider other information provided by the applicant including for example, raising children, being in a stable home environment, being employed and paying taxes, and the community work undertaken. Expression of genuine remorse for past wrongdoing and the time that has elapsed since the wrongdoing may also be relevant in the decision-maker reaching a conclusion about the applicant’s character.
[11] Exhibit A, attachment T9 (the Policy), chapter 15, paragraph 4.4.
The applicant’s offending
Common Assault (7 counts)
The Tribunal received into evidence the judgement of Magistrate S. O’Connor dated 2 November 2017[12]; the Remarks on Penalty dated 8 February 2018[13] , and the judgement of Justice Parker of the Supreme Court on the applicant’s appeal against his conviction dated 23 March 2018.[14]
[12] Exhibit B, attachment ST3, pages 57-80.
[13] Exhibit B, attachment ST4, pages 81-86.
[14] Exhibit B, attachment ST5, pages 87-106.
In her judgement, Magistrate O’Connor accepted each of the three complainants as witnesses of truth and found that the complainants were not willing participants in the events in the taxi, as evidenced by their contemporaneous complaints to police.
The respondent fairly summarised the applicant’s offending, namely, that in relation to each of the three complainants, the applicant was found guilty of assaulting by kissing, hugging, caressing, and stroking each of them without permission.[15]
[15] See Respondent’s Statement of Facts, Issues and Contentions, paragraph 22.
Magistrate O’Connor in her judgement rejected the applicant’s assertion that the complainants were consenting to physical contact. She referred to two of the complainants’ taxi rides being of short duration and not of sufficient time for each complainant to form any type of rapport with the applicant. Her Honour said at [81] – [82]:
“The defendant is intelligent, educated and, to qualify as a taxi driver, he was trained to keep appropriate boundaries with passengers in his taxi yet asserts that these young women would be interested in cuddling, stroking, kissing or caressing an unknown taxi driver. I reject this assertion as implausible and a reconstruction to justify his inappropriate behaviour.
The defendant was opportunistic, predatory and hoping to engage with women he considered attractive to relieve the boredom or frustration he felt in the long hours he worked as a taxi driver…. He used passengers for his own amusement. He professed to know whether a passenger welcomed his jokes and conversation, which is foolish as his only guideline was to not persist in conversation with the chosen passengers if they ignored him but continue when there was no complaint. He made no allowance for the likelihood that politeness may cause some passengers to converse because they do not wish to appear rude by shutting down a conversation.”
Two of the complainants “were in the taxi for only a matter of minutes, certainly insufficient time for him to make any assessment of their willingness to engage with his game. He was selective in whom he smiled and joked with. It is not in dispute that the defendant was only wanting to touch, hug and kiss young women who he viewed as attractive or interesting. He focused on good looks, ….”
Her Honour found that it was not proved that the applicant’s actions were part of a plan to engage in more intimate or sexual contact. Her Honour then said at [85]-[88]:
“It is reasonable to accept the complainants were alarmed by all such contact and would have reasonably worried that the defendant may want to go further…. It has not been proved that the defendant wanted to engage in sexual intercourse or touch their genitals or breasts.
It has not been proved that the defendant’s conduct was accompanied by an intention to obtain sexual gratification. Throughout his trial he had maintained a misguided belief that his actions do not constitute assault…
The defendant hides behind a supposed belief system, created to flatter himself into a false belief that young attractive women would be amused by his conversation and welcome physical contact. He created a barrier to separate himself from the consequences of his actions, doggedly maintaining that he did not engage in physical contact with women who did not invite attention or who did not respond. He considers that as he did not have a malicious intent, and because he was never forceful and never compelled passengers to have physical contact, he has not assaulted anyone. To reach this conclusion, he had to ignore his training as a taxi driver and construct an unreasonable belief that the lack of complaint means acceptance. He unreasonably flatters himself with a professed belief that such attention would be welcome because the complainants found his conversation amusing. They did not.
I find he knew that the complainants might reasonably object to contact. I find he knew that female passengers would not expect to be touched, stroked, hugged or kissed by an unknown taxi driver. I find his conduct and physical contact with the complainant’s goes well beyond “conduct that lies within the limits of what would be generally accepted in the community as a normal incident of social interaction or community life.” ….. The defendant waited for these young, attractive, unescorted complainants to enter his taxi and, wrongly, he felt justified to continue physical contact with them unless or until they complained.”
Magistrate O’Connor in her Remarks on Penalty at page 82 paragraphs [2] and [3] referred to the applicant’s conduct during the trial. She said, “I consider the defendant showed that he was wilful, conceited, belligerent and disrespectful of the court system in the way he conducted himself”. She referred to numerous delays caused by the applicant not being prepared for trial, not making appropriate arrangements, and not considering the restrictions on cross-examination. She referred to both she and the prosecutor trying to persuade the applicant to obtain legal representation which I note he did for part of the hearing. Her Honour referred to the applicant making personal attacks on the prosecutor and that he behaved in a high handed and outrageous manner, challenging the prosecutor to disclose any past relationships that he had with young women and his attitude to such relationships. The applicant suggested a conspiracy between the prosecutor who he alleged was in cahoots with the boyfriend of one of the complainants who was also a police officer. She said, “It was extraordinary the length that a supposedly intelligent man would go to basically blame everybody except for himself for the situation that he put himself in.”

Her Honour observed that the applicant had shown no appropriate contrition or remorse and at no time expressed any empathy. She said, “He has never had second thoughts in relation to how he appears to young women, in particular these three victims”.
Her Honour observed that one complainant was psychologically affected by the incident, became withdrawn, lost a long-term relationship of 18 months, re-engaged in destructive behaviour, suffered an eating disorder, and was currently under the care of a psychiatrist who was attempting to resolve her eating disorder and to get over the grief or upset caused by the episode. The complainant is concerned about feeling vulnerable in public or if intoxicated.
A second complainant is now uncomfortable in taxis, does not sit in the front seat of the taxi, and does not talk to taxi drivers. If she uses a taxi, she is left in dread and fear.
The third complainant was left in shock. She only had to travel from the railway station to a tavern a few hundred metres away and could have walked had she known the address of the tavern. She is now left with invasive thoughts and suffers from anxiety. She wakes at night anxious and in a hot sweat. She too is seeing a psychologist in relation to the incident.
Her Honour said that the applicant had limited insight into his behaviour, that he willingly admits he was unprofessional, which has resulted in him being unable to work as a taxi driver and that he has demonstrated little insight or empathy in relation to the needs, aspirations, and feelings of others. Her Honour said at page 85, paragraph [16]:
I consider it is unlikely that the defendant would behave in the same way again. He will not be employed as a taxi driver again, nor should he. The embarrassment, the family upset, the effect this must have had on his family who have supported him by coming to court today, should be sufficient in my view to stop him reoffending. He did nothing before, he has done nothing since. He was a foolish, nasty, creepy, lonely taxi driver who had no empathy for others and used these women as playthings for his own amusement. That may sound harsh, but I think it is the only way I can categorise this type of behaviour and unfortunately, his continual assertion that these women would be interested in a middle aged man shows conceit. I do not consider his conceit is such that he is likely to offend again, particularly as I do not consider what he did suggests that he was wishing to sexually engage or have sexual contact with his victims.
Her Honour said, “In my view there is no way to distinguish between the three victims because the assaults had the same level of serious intrusion to vulnerable victims that has left them shocked and they bear a long-term effect.” She sentenced the applicant to 2 months imprisonment with respect to each complainant to be served cumulatively upon each other; namely a total head sentence of 6 months imprisonment which was suspended on condition that he enter into a bond in the sum of $500.00 to be of good behaviour for two years.
The applicant appealed his conviction to the Supreme Court. He made various complaints about the manner in which the hearing proceeded, including that the prosecutor coached the complainants and that he was unrepresented at trial because Legal Services Commission declined representation. Justice Parker observed that Legal Services Commission were not obliged to provide legal representation, however the applicant was entitled to legal representation for the purpose of cross-examining the witnesses, which occurred. His Honour received and twice viewed the CCTV footage of the assaults which was before the Learned Magistrate at trial. Justice Parker rejected each of the grounds of appeal and dismissed the appeal.
The Tribunal hearing
The applicant’s evidence about the offences
The applicant said that at the time of his offending, he was the holder of a probationary taxi driver’s licence and had undertaken all the relevant training, including behavioural training. He accepted that he did not act professionally as a taxi driver, but he did not accept that his conduct was criminal. He said, “I consider myself innocent”.
He said putting aside that he was a taxi driver, he believed the engagement with each of the three complainants were consensual. He complained that the video footage of the incidents which were before Magistrate O’Connor at trial and Justice Parker on appeal had no audio which would have made plain that his conduct was consensual.
Domestic Violence
The allegation of domestic violence was contained in the Police Apprehension Report of 19 November 2019. It is noteworthy that at this time, the applicant was still the subject of the two-year good behaviour bond which was imposed by Magistrate O’Connor on 8 February 2018.
The applicant said that at the time, his life had come to a grinding stop as a consequence of the assault convictions. He was under stress. He was unable to obtain employment relevant to his qualifications because of his offender history.
The applicant said that he and his wife had one occasion of violence and as a consequence, he completed the 12-month term of the Intervention Order without further incident.
The Tribunal put the Police Apprehension Report allegations to the applicant for comment namely that:
·there was a verbal argument between the applicant and his wife during which the applicant snatched the phone from his wife’s hand;
·there was shouting during which the applicant said “I will smash the phone”, “I will kill you”, “you bastard”, “you bitch”;
·the applicant went to the bedroom and was lying on the bed with his wife’s phone and a kitchen knife next to him;
·his wife entered the bedroom and sat on the bed; the knife was between the applicant and his wife;
·the wife said the applicant was shouting at her and she became frightened; she grabbed the knife off the bed and ran out of the bedroom; and
·the applicant chased her out of the bedroom, grabbed another knife and continued to chase her out of the house.
The applicant accepted that was a fair summary of what happened on that occasion. He made the point that the knife was a bread knife, and it was a blunt knife longer than a butter knife. He said the argument happened and the police understood and there was a restraining order issued. Following the incident, he and his wife continued to live together, and still live together. He also has a continuing relationship with his children.
The applicant said he has been seeing a psychologist in relation to issues involving him and his wife particularly after he denounced his religion. Arguments developed but there was no violence except for this one occasion. He and his wife have a close-knit family and they still want to live together, and that is why they were both seeing a psychologist in hope that he could help them both understand each other. It was hoped that the psychologist could assist in their continued relationship into the future.
The applicant said he was currently under a mental health plan particularly as a consequence of the stress because of his inability to obtain employment as a result of his criminal convictions. The Tribunal referred the applicant to a letter from Dr Emmanuel Afari dated 4 September 2021[16] and the reference to the applicant needing a mental health care plan. The applicant said that both he and his wife have been seeing a psychologist pursuant to mental health care plans for each of them.
[16] Exhibit A, page 11.
The applicant also referred to the Minister having raised the question as to whether the applicant had undertaken community service. He asked rhetorically, “what the Minister would expect a person of my age to do?” He said his way of helping the community would be different. He had some suggestions about traffic management and has taken his proposal to a parliamentary candidate, a Lord Mayor and to SA Police but was ignored by each. He applied to be a volunteer for CFS, but the application was refused when they sought a police clearance. He also volunteered for an Arctic expedition but was not successful. He is a blood and an organ donor. The Tribunal accepts that evidence.
In cross-examination, the applicant accepted his antecedent history contained in the criminal history report was correct.[17] He agreed that he was sentenced to a total of six months imprisonment which was suspended.[18]
[17] Exhibit A, pages 73-74.
[18] The Criminal History Report incorrectly referred to 2 months imprisonment,
The applicant accepted that during the course of the criminal proceedings, the Magistrate requested assistance from Legal Services Commission in the cross-examination of the complainant witnesses and counsel was appointed and cross-examined the complainants and made submissions on the applicant’s behalf, however, he said counsel was not present at the hearing for very long.
The applicant confirmed that the Magistrate received the taxi CCTV footage of the offending, but said it was only video and no audio. Hence in the applicant’s view, the complainant’s consent or implied consent could not be proved.
In respect of the first complainant referred to by the Magistrate who I will call “complainant A”, the applicant said in evidence to the Tribunal that she initiated the contact. He said in evidence before the Magistrate, the complainant said she could not remember the initial contact. The applicant said that complainant A initiated everything and said she would kiss the applicant when they reached their destination. He said because there was no audio, this evidence was not before the Magistrate.
The applicant also said complainant A complained three months after the event, which led him to believe at that time of the hearing, that the police were motivated to charge him and that police spoke with complainant A in order to make their case stronger. He said the police looked at the videos and used complainant A to catch a nasty criminal. This was how he felt at the time of the prosecution, albeit he later said in evidence that he does not now think that is the case.
However, the Tribunal referred the applicant to the finding of the Magistrate that complainant A did not take three months to complain, but she complained on the same night. The applicant did not appear to now take issue with the Magistrate’s finding.
The applicant maintained that as a taxi driver, the conduct was not appropriate, but said he has a friendly personality. He does not deny the incidents, but he challenges the word ‘assault’, which suggests there was an absence of consent. He said the complainants might not have initially entered the taxi with the intention of kissing the taxi driver, but his conduct was not criminal. He said he did not use any force and did not do anything that was not consensual.
Counsel referred to the Findings of the Magistrate[19] who accepted the complainants as witnesses of truth and they were not willing participants; and then later said at paragraph 79 that the applicant’s evidence was self-serving. The applicant maintained before the Tribunal his criticism of the court process and that he was disadvantaged as he raised in the Supreme Court appeal, which criticism was rejected.
[19] Exhibit B, attachment ST3, page 75, paragraph 75.
The applicant also referred to the principle that witnesses should not be allowed to engage with each other, but in his case after one complainant gave evidence, she left the Court and sat down with the other complainants whom he described as her friends. This, he said, was a violation of the law which was overruled by the Supreme Court.
The applicant said he was not challenging the Supreme Court’s decision, but he has been punished enough. His whole family had been punished. His children have gone through mental trauma. His eldest daughter’s engagement ended as a consequence of the details of the offending being published in the newspaper. He has been unable to gain a white-collar job because of his antecedents.
The applicant said the incidents occurred in 2015 and eight years have now passed. It would be pointless to rechallenge the Magistrate’s finding. The good behaviour bond has concluded, and he now asks to be able to move on with his life. By complying with the terms of the bond, he demonstrated that he behaved in a responsible manner and as a law-abiding citizen.
The three traffic offences, referred to in the antecedent report also occurred whilst driving the taxi. He said the antecedent report gave a bad impression of him. He lost the challenge to each of the speeding offences in court and now they form part of his antecedent history.
Incoming Passenger Card
In relation to the false IPC in January 2020, the applicant accepted that he read and completed the card, and his signature appears at the bottom of the card. He said he did not answer the question about criminal convictions because he was embarrassed and not proud of his record. He said he had remorse because of that. Further, he said this was not the appropriate question to be asked on the IPC. The question should be directed to anything that happened when he was abroad as the convictions in Australia are already known.
The applicant said that the officer receiving the IPC checks it to see if all questions have been answered, so he should have returned the IPC to the applicant if it was compulsory to answer the questions. Further, the fact that he did not answer the question is not a moral crime and likened it to a student doing a test in which a question was not answered. It is not the same as cheating. He said he knew all the questions had to be answered but that he might have missed it. He then said he did not want to give any false statement and if he left it blank, it only meant that he declined to answer.
The explanation for not completing the card was wholly unsatisfactory. His suggestions that he did not answer the question because he was embarrassed and the further suggestion that he might have missed the question were inconsistent. His evidence that if the answering of all questions was compulsory then the officer should have returned the card for completion, was of no substance given his evidence that he knew it was compulsory to answer each question. His evidence was an attempt to distance himself from any responsibility for the incomplete card and the false declaration.
The Tribunal asked the applicant to explain his answer and what was, in fact his position with respect to the incomplete card in circumstances where he knew he was obliged to answer each question. He agreed that he made a conscious decision not to answer the question because he was embarrassed, and because the government had his criminal record and had the answer to the question.
The applicant then volunteered that by leaving the answer blank, it suggested that the answer to the question was yes, that he had criminal convictions. He said, “It is not a false statement. It is not even a misleading statement.”
Counsel referred the applicant to the declaration signed by the applicant which reads, “The information I have given is true, correct and complete. I understand failure to answer any questions may have serious consequences.” The applicant said that was correct.
In relation to his rehabilitation, the applicant said he has successfully raised 4 children and has a grandchild. He has raised his family to be successful members of the Australian society.
The applicant also said that because of his Pakistani passport, he is confined to being in Australia or Pakistan and is unable to travel elsewhere in the world which he would like to do. He wants to be an Australian citizen so he can travel freely around the world.
Applicant’s witnesses
The applicant called four witnesses who each provided letters of support and gave oral evidence.
Dr Paterson
Dr Paterson provided a brief letter dated 25 August 2021.[20] He was a veterinarian who knows the applicant socially. He described the applicant as a person of good character with whom he shares an interest in agriculture and engineering. Dr Paterson was not aware of the details of the applicant’s criminal offences, but he believed it to involve two people in a taxi at one time.
[20] Exhibit A, page 9.
He said the applicant had expressed remorse and he found the applicant’s character to be honourable. They met when they lived in the same suburb of Plympton. He has met the applicant’s family and other members of the Pakistan community. He supports the applicant because he thinks he has good regard for Australia. The applicant’s wife and children are Australian citizens, and he thinks the applicant would be a good Australian citizen.
Mr Nath
Mr Nath provided a brief letter dated 26 August 2021.[21] He has known the applicant since 2015 and is his recruitment officer. He said he had identified various employment opportunities for the applicant, and he had always responded positively in attempts to find employment. He was reliable and eager to work.
[21] Exhibit A, page 10.
He said the applicant was always punctual, and never declined work whether it was factory work or cleaning a shopping centre. He believed the applicant has a good reputation in the Pakistani community and is always respectful.
Although in his letter, Mr Nath said he was aware of the applicant’s court conviction and had expressed deep remorse for his acts. In evidence, he said he had no memory of any criminal convictions and could not explain why that comment appears in his letter.
Dr Afari
Dr Afari has been the applicant’s treating general medical practitioner since March 2014 and also treated his family. He provided a brief letter dated 4 September 2021. Unfortunately, he did not have his notes available and did not have the full details of the applicant’s criminal offending. When prompted by the Tribunal, he said he believed the applicant told him he was convicted of seven counts of assault. He remembered it was to do with a taxi, but he did not recall the allegations and when further assisted by the Tribunal, he could still not recall the details of the offending. He said that it had something to do with assaulting three women. He recalled the assaults were inappropriate but had no further details.
Dr Afari in his letter to the Tribunal dated 4 September 2021[22] said that the applicant expressed deep remorse. When explaining that remorse, Dr Afari said in evidence that the applicant now realised his conduct was inappropriate, that there was initially some cultural issue, but the applicant has now seen it was not appropriate at all. Since then, he has integrated into Australian society and realised it was not the culture in Australia to do what he did. He now understands how bad and how inappropriate it was. But when pressed to explain what he meant about the conduct being culturally inappropriate, he explained that the applicant realised it was not appropriate conduct for a taxi driver to do that sort of thing.
[22] Exhibit A, page 11.
Dr Afari referred to the applicant being placed on a mental health care plan. He has had two plans each of which permit 10 visits with a psychologist per year. He said the applicant and his wife were having relationship problems, in the nature of communication problems, and that is why they were seeing a psychologist. Sometimes the applicant saw the psychologist alone and sometimes together with his wife. Dr Afari was not aware of a domestic violence order imposed on the applicant.
To the extent that Dr Afari wrote that he supports the applicant’s application for citizenship, he said it was because he knows the applicant’s family, he has four lovely children, and he has met the applicant’s daughter when she was applying to gain entry into medical school. She is now a doctor. He has been to their home and seen the interaction between family members and for those reasons, he supports the applicant.
Mr Franklin McCurdy clinical psychologist

Mr McCurdy is a clinical psychologist who provided a brief letter dated 3 March 2022.[23] He wrote that he has known the applicant since 2019 and was aware of the applicant’s “conviction for low level indecent assault (2019) due to an incident when he was employed as a taxi driver in 2015. He received a fine of $2000.” Later in evidence, Mr McCurdy acknowledged that the applicant told him he had been sentenced to 6 months imprisonment which sentence was suspended. He said that the applicant disputed the outcome in his court case, was unsuccessful in defending the charges, and as a consequence, lost his job and had problems gaining new employment. In supporting the applicant becoming an Australian citizen, Mr McCurdy said he had shown regret for his past action leading to his unemployment.
[23] Exhibit C.
In evidence, Mr McCurdy confirmed he was consulted by the applicant due to marital problems and anger issues. Police had been called to the applicant’s home on at least 20 occasions, usually by the neighbours, because of shouting and the applicant’s abuse directed to his wife. The applicant would get angry quickly and would lose emotional control.
He was seeing both the applicant and his wife under separate mental health care plans, and he always sees them separately on the same day. This arrangement is continuing. He said that originally, there was a lot of fighting between themselves which was upsetting to the family as a whole. The mental health care plan has nothing to do with the criminal offending but is related to the domestic violence situation.
Mr McCurdy said that he has not had much luck in treating the applicant’s mental state, however, his wife has learnt to “shut up” and not engage with the applicant which has resulted in a more peaceful household. He explained that a lot of the applicant’s mental state is a consequence of him being unemployed.
Mr McCurdy said he was aware of the applicant’s criminal offending. He originally said it was a one-off offence which occurred when he was driving a taxi and he tried to kiss one of two women who were in the car and she reported it to police. When the details of the offending were put to Mr McCurdy, he was then unsure about the extent of the offending as communicated to him by the applicant.
Mr McCurdy also confirmed that the applicant disputed the outcome of the court case and he did not agree that he was guilty of committing an offence. He believed it was okay for him to do what he did and that he was given permission to do so.
The applicant assured Mr McCurdy that he will not do anything like this again and it is Mr McCurdy’s opinion that he will not reoffend. Insofar as the applicant has expressed regret, he regrets that he cannot get a job.
Consideration
The applicant maintains the belief he held at the time of his criminal trial in November 2017, that he did not commit a criminal offence and that each of the three complainants consented to his conduct. Further, it was only insofar as his conduct occurred whilst performing the duties of a taxi driver that rendered the conduct inappropriate.
The reasoning of the applicant is alarming. He has not received any professional treatment to address his behaviour and thereby gain insight and understanding that his conduct, irrespective of whether or not it occurred whilst he was driving a taxi, was wholly unacceptable, inappropriate and criminal.
I accept the findings of Magistrate O’Connor including the circumstances of the offending, that the conduct was non-consensual, the guilt of the applicant and the observations and comments about his demeanour in court as referred to earlier in this decision.
When the Tribunal asked the applicant if he had any remorse for his offending, he said the remorse was the impact that the criminal convictions have had on him and his inability to gain employment, his inability to travel, and the impact on his family including his eldest daughter whose pending marriage was cancelled. He regretted the distress that the conduct caused to his family.
However, what is of particular concern, is the applicant’s failure to express any contrition or remorse for the impact his offending clearly had on the three complainants, as detailed by the Learned Magistrate, or that as a result of his conduct, two of those young women were being treated by mental health practitioners for the consequences of the applicant’s behaviour. He lacked insight into his conduct which as the Learned Magistrate rightly observed goes well beyond “conduct that lies within the limits of what would be generally accepted in the community as a normal incident of social interaction or community life.”… “He has never had second thoughts in relation to how he appears to young women, in particular these three victims”.
The fact that the applicant still has no appreciation for his wholly inappropriate conduct with respect to the three complainants, also demonstrates a lack of understanding or awareness of the values of the Australian community and the respect to be given to women in the community.
The fact that the offending occurred in 2015, that he was sentenced in 2018, and that the applicant was not dealt with for breaching the condition of his bond or domestic violence order, does not now provide a basis for finding him to be a person of good character.
That he still regards himself as innocent, that the kissing, hugging, caressing and stroking of each of the complainants were consensual, that his only wrongdoing was to engage with the complainants, as he did, when performing the duties of a taxi driver, are factors which weigh against a finding that the applicant is of good character. They demonstrate his inability to distinguish right from wrong and raise concerns about his ability to act in an ethical manner conforming to the rules and values of the Australian community.
The conduct of the applicant during the course of the Magistrates Court hearing and the demeanour he demonstrated to the Court and prosecutor are also relevant in considering the applicant’s character. His explanation for that belief including collusion between police and the complainants was plainly misconceived and wrong.
As I understand the applicant’s evidence to the Tribunal, he no longer holds those views, but that was his belief at the relevant time which influenced his demeanour in Court and towards the police prosecutor. Nonetheless, the way he conducted himself in 2017 during the hearing is also relevant to the question of the applicant’s character and his attitude to the laws of Australia and the authorities including police and the courts for the administration of those laws.
Although the applicant was never dealt with for breaching his February 2018 bond to be of good behaviour for two years, the incident of domestic violence in November 2019 was still within the period of the bond. The police apprehension report records that no family member would provide a statement following the incident of domestic violence, and the family did not wish to proceed with a prosecution. However, importantly, the applicant admitted in evidence the factual circumstances of the domestic violence as contained within the police apprehension report. He said this was the only incident of violence. No other incident of violence was put to the applicant and I accept this was an isolated event involving violence. Nonetheless I am satisfied, by virtue of his own admission, that he was not of good behaviour during the whole of the period of the February 2018 bond imposed by Magistrate O’Connor.
The incident of family violence was further aggravated by the applicant introducing a knife into the argument with his wife. The applicant gave the impression, when making the point that the knife was a bread knife, as distinct from a sharp pointed knife, that this somehow mitigated his behaviour. The introduction of any knife into a domestic dispute, is reprehensible.
The applicant’s evidence with respect to the IPC and the reason for leaving the question blank were wholly unsatisfactory. In evidence, the applicant became evasive and self-serving when he said his action was not a moral crime and likened it to a student failing to answer a question in an exam. He said it was not the same as cheating. When he then said he might have missed the question, and if he left it blank it only meant he declined to answer; and by leaving it blank it suggested the answer to the question was yes, were outrageous and unbelievable explanations. I am satisfied he deliberately disobeyed his obligation to complete each question and then signed a declaration he knew to be false.
This conduct was an example of the applicant deliberately disobeying the requirements for those entering Australia and ignoring his obligation for his own selfish reason. That he disagreed with the question which he thought was wrong, as a reason for not answering the question, demonstrates his lack of appreciation and understanding of the rules and expectations of members of the Australian community.
As was observed by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs, “the words ‘good character’ should be taken to be used in the ordinary sense, namely, a reference to 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 a subjective public opinion.”
To the extent that the Tribunal received written letters and heard evidence from four character witnesses, each referred to their subjective opinion of the applicant and his good standing fame or repute in the community. In short, each thought he was a good and decent person who was well liked and will be a good Australian citizen. Neither witness had a clear and accurate understanding of his criminal behaviour and did not give evidence with respect to the incident of domestic violence.
Mr McCurdy was aware of arguments within the marriage often resulting in police attending the applicant’s home. He was treating the applicant for marital problems and anger issues. He said the applicant would anger quickly and lose emotional control. He has not had much luck treating the applicant and it was his wife’s silence rather than engaging in an argument that has brought calm to the household. But Mr McCurdy’s evidence like the other witnesses did not satisfy the Tribunal of the applicant’s enduring moral qualities.
The Policy guidelines in respect of good character refer to enduring moral qualities and also that a person will likely uphold and obey the laws of Australia and commitments made through the pledge should that person be approved for citizenship. The fact that the applicant committed seven offences of assault against three women in 2015, committed an act of domestic violence in 2019 when he was still on a good behaviour bond imposed by Magistrate O’Connor in 2018, made a false declaration in an IPC in 2020, and despite treatment from a clinical psychologist, has not addressed his anger issues and loss of self-control, all raise significant concerns about whether, in the future, the applicant will be likely to uphold and obey the laws of Australia and commitments in the pledge. Significant time must pass during which the applicant must demonstrate those attributes before the Tribunal would be satisfied that the applicant is a person of good character.
The Policy informs the Tribunal about the meaning of enduring moral qualities. By his conduct from 2015 to date, the Tribunal is not satisfied that appropriate characteristics have been demonstrated over a long period of time, that the applicant can distinguish right from wrong, particularly as evidenced by his denial that he committed the criminal offences, and the false IPC, or that the applicant has behaved in an ethical manner conforming to the rules and values of the Australian Society.
I have taken into account and accept that the applicant has helped raise four children, each of whom he brought to Australia to improve their education. They have each excelled in their studies and have become Australian citizens. I also accept that his wife has become an Australian citizen. I am satisfied that the applicant, having expertise as an engineer, has attempted to assist relevant authorities to improve road traffic conditions and that he has endeavoured to volunteer for the CFS which was rejected because of his antecedent history. He is also a blood and organ donor.
All of those personal factors are to the applicant’s credit. But when viewed against his serious criminal offending, the incident of domestic violence and the false IPC, the Tribunal is not satisfied that the applicant is a person of good character in accordance with s 21 (2)(h) of the Act and is eligible to become an Australian citizen. Insufficient time has passed such that the applicant could be said to demonstrate that he is a person of good character.
Decision
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

........................[SGND]................................
Associate

Dated: 13 May 2022

Dates of hearing: 25 March 2022

Advocate for the Applicant: Self-represented

Advocate for the Respondent: Claudia Calabrese, Australian Government Solicitor

[2022] AATA 1153

13 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Dates of hearing:	25 March 2022
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Claudia Calabrese, Australian Government Solicitor