VFWQ and Minister for Home Affairs (Citizenship)

VFWQ and Minister for Home Affairs (Citizenship) [2019] AATA 1096 (31 May 2019)
Division:GENERAL DIVISION
File Number: 2018/6287
Re:VFWQ
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:31 May 2019
Place:Perth

The decision under review is affirmed.
..................................[sgd]......................................
Member C Edwardes
CATCHWORDS
CITIZENSHIP – whether Applicant of good character – meaning of good character – traffic conviction – ASIO assessment – enduring moral qualities – Australian values – Applicant found not to be of good character at time that the Minister made decision – decision under review is affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(h), 24(1), 24(1A), 24(2), 24(4), 52(1)(b)
CASES
Assafiri v Minister for Immigration and Border Protection [2014] AATA 35
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Instructions, at

1 January 2014
Department of Immigration and Border Protection, Australian Citizenship Policy, at 1 June 2016 – Chapter 11
REASONS FOR DECISION
Member C Edwardes
31 May 2019
INTRODUCTION

This is an application for the review of a decision of a delegate of the Respondent (the Delegate). This decision, made on 18 October 2018 (T2 8-17, R1), refused the Applicant’s application for Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The application was refused on the basis that the Applicant did not satisfy the character requirements under s 21(2)(h) of the Citizenship Act at the time of the Minister’s decision.
Citizenship by conferral (that is, where citizenship is granted to a person who does not have an automatic or statutory entitlement to citizenship) may be granted where an applicant satisfies certain requirements of the Citizenship Act.
BACKGROUND
The Applicant is a citizen of Sri Lanka who arrived in Australia in February 2007 as an illegal maritime arrival (T2 9, R1).
On 10 January 2008 the Applicant was granted a Refugee (subclass 200) visa (the Refugee Visa) (T2 9, R1).
He arrived in Australia on the Refugee Visa in January 2008 (T2 9, R1).
The Applicant applied for citizenship by conferral on 19 December 2013 and the application was refused on 30 July 2018, as it was determined that the Applicant failed the character test as required by s 21(2)(h) of the Citizenship Act.
The Delegate stated (T2 5-11, R1):
3. APPLICANT’S BACKGROUND
You first arrived in Australia on [date omitted] February 2007 as an Illegal Maritime Arrival (IMA) and were subsequently transferred to Nauru on [date omitted]
March 2007. On 14 December 2007, you applied for a Refugee (subclass 200) visa and provided your Sri Lankan birth certificate, National Identity card and copies of your parents’ Sri Lankan birth certificates. Your visa was granted on [date omitted] January 2008 and you arrived in Australia on [date omitted] January 2008.
On [date omitted] January 2013, you were convicted of the offence ‘Failure to comply with a requirement to provide a breath analysis’ and were disqualified from driving for 10 months and fined $900.
On [date omitted] December 2013, you lodged an application for conferral of Australian citizenship and provided your Sri Lankan National Identity card and birth certificate, a Western Australia driver’s licence, a copy of your Document for Travel to Australia (DfTtA) and copies of your parents’ Sri Lankan birth certificates. On
[date omitted] December 2013, the Australian Security Intelligence Organisation (ASIO) requested that your application be referred for assessment. On [date omitted] February 2014, you were interviewed by ASIO officers in respect of your application for Australian citizenship and you were subsequently interviewed by ASIO again on 24 March 2014.
On [date omitted] May 2017, you applied for a Resident Return (subclass 155) visa. This visa was granted on [date omitted] February 2018 and remains in effect at the time of this decision.
On [date omitted] August 2017, ASIO issued a Qualified Security Assessment (QSA) in respect of your application for Australian citizenship. The QSA advised the Department that you had been involved in the facilitation of potential illegal immigrants (Plls) to Australia. ASIO further advised in the QSA that you were not a direct or indirect risk to security as at the date of the assessment.
You have only travelled overseas once since the grant of your first visa, on
[date omitted] June 2018. You returned on [date omitted] July 2018.
…
Qualified Security Assessment
I have considered the QSA issued by ASIO on [date omitted] August 2017, in which they assessed you as being involved in the facilitation of Plls to Australia. This QSA was based on two Security Assessment Interviews (SAls) conducted by ASIO with you, on [date omitted] February 2014 and [date omitted] March 2014. Subsequent to these interviews, ASIO assessed you as having been dishonest during the SAls regarding your knowledge of, and involvement in, people-smuggling activities and in relation to your peoplesmuggling associations. Specifically, ASIO assessed that you were involved in facilitating the passage of your father and another person on Search and Rescue (SAR) [detail omitted], which departed [location omitted] on [date omitted] July 2013 and capsized, resulting in the deaths of at least [number of deaths omitted] people.
According to the Citizenship Policy, a person of good character would not be involved in the illegal movement of people or be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia. ASIO have assessed that you were involved in both of these activities, and that you were also dishonest with the Australian Government (ASIO) in relation to this involvement.
Furthermore, in the QSA, ASIO stated that “border integrity policies have diminished the ability of people smugglers to undertake successful people-smuggling operations to Australia”. I have interpreted this to mean that you ceased in your facilitation of people smuggling ventures due to the success of the Australian Government’s approach to stopping people-smuggling, rather than as a result of a change in your character or a desire to stop. I place significant weight on these factors in my assessment of whether you are of good character.
I have considered ASIO’s comment in the QSA that, should people-smuggling networks re-establish, you no longer have the intent or capability to undertake people-smuggling activities and, therefore, is not directly or indirectly a risk to security. However, while I have placed weight on this statement I have placed greater weight on ASIO’s assessment that it was a strengthening of government policies that led to you ceasing your association with people smuggling activities.
I have also placed significant weight on the risk to Australian borders that may arise should you re-establish your previous networks and capabilities in relation to people smuggling and believe that there is not enough information before me to satisfy me of a change in character in relation to this behaviour. That is, the information before me indicates that your change in behaviour was circumstantial and related to Government policy, rather than having occurred due to a change in your personal moral qualities.
I have considered the following statements regarding the QSA, made by your representative:
·That you requested the second SAI and voluntarily divulged the knowledge of your father’s presence on SAR [detail omitted];
·That ASIO's Qualified Security Assessment would amount essentially to an “opinion or advice”... such an opinion or advice could not be equated to a criminal charge or conviction;
·Since you have not been convicted of people smuggling, your testimony during the SAls cannot be considered dishonest.
In considering the representative’s claim that you “voluntarily divulged” the knowledge of your father’s presence on the boat, I am of the opinion that this alone does not demonstrate that you are of good character. Conversely, if you did voluntarily divulge this information at the second interview, I would consider this information to support ASIO’s assessment that you were dishonest during the first interview.
For the purposes of Australian citizenship, assessing whether a person is of good character does not solely take into account a person’s criminal convictions,
but considers the enduring moral qualities of the person. The fact that you have not been charged or convicted of people smuggling activities does not mean that you have not been involved in the activities to some extent, and does not mean that you can automatically be considered of good character. Furthermore, SAls conducted by ASIO are not conducted at the request of a citizenship applicant, rather, they are conducted by ASIO as the need arises, in order to ensure the integrity of Australian borders and the security of the Australian people. As such, while I have considered the statements provided by your representative, I have placed greater weight on the advice provided by ASIO, as this agency could reasonably be viewed as experts in the assessment of issues relating to Australia’s security, inclusive of matters relating to people smuggling.
In conducting a security assessment on behalf of the Department of Home Affairs, ASIO draws on their global network of intelligence partners as well as their own unique collection and assessment capabilities. While their QSA may amount to an opinion or advice, it is made from a well-informed position, as they are Australia’s experts in National Security matters. As such, I have placed no weight on your representative’s assertion that an opinion or advice cannot be equated to a criminal charge or conviction, and significant weight on the information contained within the QSA.
Offence
I am satisfied that you have a criminal record in Australia. Information held by the department regarding your criminal record in Australia indicates the following:
·On [date omitted] January 2013 you were convicted of the offence ‘Failure to comply with a requirement to provide a breath analysis’. As a result, you were disqualified from driving for 10 months and fined $900.
Under citizenship policy, I must consider whether the offence is serious or minor. Serious offences include, but are not limited to: crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death), crimes against children and other vulnerable people, drug trafficking, people smuggling, fraud (including identity fraud), harassment or stalking, illegal pornography (including child pornography), breaches of immigration law, war crimes, crimes against humanity, genocide and terrorism. In addition, any other offences incurring prison sentences of 12 months or more.
I am satisfied that you have not been convicted of an offence that would ordinarily be considered serious. Having regard to the sentence imposed, I am satisfied that your only offence is at the lower range of seriousness and that adds some weight to your good character.
Attitude towards law enforcement/government officials
A person of good character would interact with Australian Government, or other, officials in a manner that is honest, respectful and cooperative. I have considered your dealings with the Western Australia Police and with ASIO officers during his two SAls. While the failure to comply with a requirement to provide a breath analysis conviction is on the lower end of the scale, and you have acknowledged that you should have provided the sample, I consider that you have shown a disregard for law enforcement. I consider you to have also displayed dishonesty in your dealings with ASIO, which continued even after you were provided with an opportunity to correct the misinformation provided, I have placed significant weight on these interactions as both demonstrate a willingness to lie or mislead Australian Government officials in order to achieve a favourable outcome for yourself.
Character references
Citizenship policy states that the onus is on the applicant to demonstrate that there has been a change in their character since last offending. You have provided information about volunteer and community work through your referee reports.
Policy states referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of “good character”. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations then [sic] those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, and who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship.
It is preferable that references are not submitted from family members. However,
if they are, less weight should be given to them because of the societal expectation that family members would tend to support one another and play down unacceptable conduct. Decision makers should take particular care with references from victims of domestic violence.
….
Generally, the character references state that you are hardworking, honest and trustworthy and comment on your volunteer work at your temple and for members of the Tamil community in Western Australia. The character referees indicate that they support your application for Australian citizenship. Some of the character referees acknowledge your criminal offence and comment on your remorse and how you have accepted responsibility for this matter. I give the contents of the referee reports some weight in my assessment of whether you are of good character, however, note that none of the references provided by you refer to people smuggling, or your involvement with ASIO.
Summary
While you have been convicted of one minor offence in Australia, you have also been assessed by an Australian government agency as a person who has been involved in people smuggling activities. I acknowledge that your character references state that you are an honest, hard-working member of the Tamil community, that you have not been charged or convicted with people smuggling offences, and that, if people smuggling activities were to recommence, you would no longer have the capability to participate. However, people smuggling is a very serious issue that poses a significant threat to the integrity of Australia's border, and places human lives at risk, as evidenced by the venture you were involved in where the boat capsized and at least [number of deaths omitted] people lost their lives. I have placed significant weight on your involvement in these activities as demonstrating that you are not of good character. I feel that not enough time has passed since your involvement in people smuggling, to demonstrate that you can be considered a person of good character for the purposes of the Act.
(Original emphasis.)
The Applicant applied to the General Division of the Administrative Appeals Tribunal
(the Tribunal) on 30 October 2018 for a review of the Delegate’s decision (T1 1-7, R1).
JURISDICTION
This application for review is made in accordance with s 52(1)(b) of the Citizenship Act, which allows applications to be made to the Tribunal for review of a decision made under s 24 of the Citizenship Act.
RELEVANT LEGISLATION AND POLICY
Section 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Citizenship Act provides that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 24(1A) of the Citizenship Act provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under ss 21(2), 21(3), 21(4), 21(5), 21(6), 21(7) or 21(8).
Section 21(2) of the Citizenship Act sets out the general eligibility criteria for a person to become an Australian citizen as follows:
(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.
Relevantly, 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 Minister’s decision on the application.
The term ‘good character’ is not defined in the Citizenship Act. There is, however, guidance on the application of the ‘good character’ requirement in the Australian Citizenship Policy (the Policy). The Tribunal will apply Departmental policy unless there are cogent reasons in a particular case to not do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634) (Re Drake).
In Re Drake, Brennan J stated (at [642]):
In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.
Justice Brennan further explained how the Tribunal might apply government policy when reviewing decisions (At [645]):
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.
The meaning of good character

Chapter 11 of the Policy provides guidance for assessing an Applicant for the purposes of the ‘good character’ test prescribed by s 21(2)(h) of the Citizenship Act. Chapter 11 of the Policy cites the case of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, in which Lee J noted:
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 to 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 whilst 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.
Chapter 11 of the Policy states that ‘enduring moral qualities’ encompasses the following concepts:
•    characteristics which have been demonstrated over a very long period of time
•    distinguishing right from wrong
•    behaving in an ethical manner, conforming to the rules and values of the Australian society
Chapter 11 of the Policy states that the broad definition of ‘good character’ means that:
…a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.
Chapter 11 of the Policy provides that an Applicant of good character would, among other things:
•respect and abide by the law in Australia and other countries
•    …
•    be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example,
•    …
•    be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations …
•    …
o   concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship application;
•    … not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance).
The Policy also provides that in weighing up whether an Applicant is of good character, decision makers are required to apply community standards, not their own personal standards. Decision makers must also question whether any mitigating circumstances and/or explanations provided by the Applicant outweigh the Applicant’s behaviour in question. Decision makers are to consider factors including:
•would a person of good character have behaved the way the applicant did
•what is there to demonstrate that the applicant has upheld and obeyed the law
•has the applicant behaved in accordance with Australia’s community standards
•does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
The Policy further states that:
[a] decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be “lasting” or “enduring” depends on the merits of each case, but in most cases will go back prior to any visa application.
The Tribunal is guided by the Policy in how it should assess and assign weighting to referee reports. The Tribunal notes the following at Chapter 11 of the Policy:
[Referee reports] can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
When considering whether an Applicant who has had previous criminal convictions is a person of good character, Deputy President Wright in Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14] stated:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
ISSUE
The issue for determination by this Tribunal is whether the Applicant was, as at
18 October 2018, a person of good character for the purpose of satisfying
s 21(2)(h) of the Citizenship Act.
EVIDENCE
The application for review was heard on 9 May 2019. The Applicant appeared in person, assisted by an interpreter, and was represented by Ms Graziotti of Estrin Saul. The Respondent was represented by Ms Ladhams of the Australian Government Solicitor.
The Tribunal received the following evidence:
·Applicant’s Statement of Facts, Issues and Contentions (SoFIC) dated
7 March 2019 (Exhibit A1);
·Statement by [name omitted] dated 7 March 2019 (Exhibit A2);
·Statutory Declaration of [name omitted] dated 5 February 2019 (Exhibit A3);
·Statutory Declaration of [name omitted] dated 5 February 2019 (Exhibit A4);
·Statutory Declaration of [name omitted] dated 9 February 2019 (Exhibit A5);
·Statutory Declaration of [name omitted] dated 9 February 2019 (Exhibit A6);
·Statutory Declaration of [name omitted] dated 5 February 2019 (Exhibit A7);
·Statutory Declaration of [name omitted] dated 8 February 2019 (Exhibit A7);
·Letter from [name omitted] dated 7 February 2019 (Exhibit A9);
·Statutory Declaration of [name omitted] dated 12 February 2019 (Exhibit A10);
·Notices of tax assessment – 2010-2018 (Exhibit A11);
·Letter from the Department of Immigration and Border Protection dated
14 March 2014 (Exhibit A12);
·Hearing certificate (Exhibit A13);
·T documents (T1-T23 pp1-200) (Exhibit R1);
·The Respondent’s SoFIC dated 8 April 2019 (Exhibit R2); and
·Hearing certificate (Exhibit R3).
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Applicant makes the following contentions (A1):
26.The Applicant contends that he meets the requirements for approval of Australian citizenship by conferral, including subsection 21(2)(h)) [sic] of the Act, and there are no legislative prohibitions to him becoming an Australian citizen under this subsection.
27.The Applicant contends that the evidence before the Tribunal, namely his non-disclosure of the knowledge that his father was onboard SAR [detail omitted] (a fact he discovered after the vessel capsized) and his subsequent voluntary disclosure of this information to ASIO during the Second interview, does not demonstrate that he regularly practices deceptive and fraudulent conduct which is not in line with community standards.
28.A further contention is whether the QSA’s finding that the Applicant facilitating the passage of two people to Australia (with no further evidence to support this having been provided to the Tribunal) is sufficient to consider he has been involved in the illegal movement of people so as to prevent him from being able to satisfy the good character requirement set out in
s 21(2)(h) of the Act.
29.The Tribunal equally has to determine whether there are any mitigating circumstances, or explanation provided by the Applicant which might address those concerns.
…
55.The Applicant has one minor conviction in Australia and no convictions in any other country.
56.The delegate’s finding in the Decision that he was not of good character was made on the basis of his conduct during the First interview.
Dishonesty during the First interview
57.The Applicant was dishonest in the First interview as he denied knowing anyone onboard the people-smuggling venture known as SAR [detail omitted] (SAR [detail omitted]). The Applicant states the following about the First interview:
I was also asked if there was anyone related to me or who had a connection to me on the boat that sank. I said no, because I meant that I was not involved with anyone getting on the boat. I did not organise the boat to come to Australia and I was not involved in anything to do with the boat. I also felt like I had been asked these questions out of the blue and I panicked. I knew my father had been on that boat but I did not tell the interviewers that at the time.
58.On 1 March 2014 the Applicant contacted the Department via email and requested a second meeting. A copy of that email has been provided with this submission. Between the First interview and 1 March 2014 the Applicant did not receive any correspondence from ASIO or the Department.
59.At the Second interview the Applicant disclosed that he knew his father was onboard SAR [detail omitted] and that he discovered this after the boat had capsized, emphasising that he did not assist his father to get onto SAR [detail omitted] nor was he involved whatsoever with the venture. He advised that he was aware that his father had been on SAR [detail omitted] during the First interview. He states:
My father never informed me he would come on the boat or that he would try to come to Australia. I had no information about how my father got on the boat or who helped him. The only thing I knew was that my father was on the boat that sank. I found this out maybe the day after the boat sank. My mother called me and told me that my father went to Australia by boat and the boat had an accident. She didn’t know anything else, like whether my father was alive or how the boat sank. My mother updated me after he was picked up by another boat and taken to hospital. I don’t remember the date but this was before the ASIO interview.
60. Between the First interview and Second interview the Applicant questioned his parents further and discovered that the smuggler who had organised SAR [detail omitted] was named “[name omitted]”. He was unaware of this at the time of the First interview but disclosed it during the Second interview.
61.The Decision notes:
A person of good character would interact with Australian Government, or other, officials in a manner that is honest, respectful and cooperative.
62.There is no indication that the Applicant was not respectful or cooperative during the Second interview. His dishonesty in the First interview was limited to his non-disclosure of the knowledge that his father was on SAR [detail omitted], which he discovered after the vessel had capsized.
63.Though the decision-maker was dismissive of the Applicant’s evidence that he requested the Second interview and voluntarily divulged his dishonesty, evidence of that request and acknowledgement of it by the Department have been provided with these submissions, and the Tribunal should consider these actions as a demonstration of the Applicant’s enduring moral qualities.
64.The decision-maker’s finding that the Applicant displayed dishonesty in dealings with ASIO “which continued even after [he] was provided with an opportunity to correct the misinformation provided” ignores the fact that the Applicant sought that opportunity out by requesting the Second interview and used it to correct the misinformation provided in the First interview. It is unclear what further (uncorrected) dishonesty the delegate is referring to in this statement.
65. Additionally, divulging his dishonesty during the Second interview has not led to a favourable outcome for the Applicant – to the contrary, he has gained no benefit whatsoever from this action, despite a clear effort to “right his wrongs” by contacting ASIO and requesting a second meeting.
66.The recent case of Nguyen v Minister for Immigration and Border Protection [2018] AATA 1082 states:
82     Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.
83     Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
84     Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others…
67.The Applicant accepted responsibility for his dishonesty during the First interview at the next available opportunity (the Second interview). His application for Australian citizenship was made over five years ago and his first visa application was made over 11 years ago. Apart from this one lapse and one minor conviction, there is no evidence before the Tribunal to indicate that the Applicant has a pattern of behaviour of using deception or fraud.
68.The Applicant’s voluntary disclosure of his dishonesty demonstrates he has an ability to distinguish right from wrong and an ability to behave in an ethical manner, conforming to the rules and values of Australian society. Attempting to rectify his mistake should be considered behaviour in accordance with community standards.
“Facilitation” of people-smuggling
69.The QSA noted that the Applicant was dishonest regarding “his knowledge of, and involvement in, people-smuggling activities and in relation to his people-smuggling associations”. The evidence on which this finding is seemingly based appears to be limited to the Applicant’s dishonesty regarding his “people-smuggling associations”, which in turn appears to be based on his non-disclosure of the knowledge that his father was on SAR [detail omitted] (discovered after the vessel capsized) and his later discovery of another name of a person on that vessel.
70.The QSA report does not provide ASIO’s evidential basis for its finding that the Applicant was “involved in facilitating the passage of his father and another individual to Australia” or that he was “involved” in people-smuggling activities at all.
71.The Macquarie Dictionary (Sixth Ed.) defines “facilitate” as “1. to make easier or less difficult; help forward (an action, a process, etc). 2. to assist the progress of (a person): to facilitate the customer to find the right product”.
72.Pure knowledge of a fact or circumstance (in this matter, the name of a person on SAR [detail omitted] after it had already departed and capsized) cannot form a basis for a finding that another person “facilitated” the passage of that person when the ordinary dictionary meaning of “facilitate” is applied. Discovering a person is onboard a vessel once the vessel has already capsized cannot constitute behaviour that has made that person’s journey onto the vessel “easier or less difficult”, or be considered “help” at all.
73.Section 233A of the Migration Act 1958 (Migration Act) contains the following offence:
(1)     A person (the first person) commits an offence if:
(a)the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person (the second person); and
(b)   the second person is a non-citizen; and
(c)the second person had, or has, no lawful right to come to Australia.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
74.No prosecution has ever been commenced against the Applicant under this section (or any others in the Migration Act) at any time.
75.This offence was inserted into the Migration Act by the Anti People Smuggling and Other Measures Act 2010, for which the explanatory memorandum states:
The use of the term organise and facilitates is used to cover all conduct associated with people smuggling and is consistent with term used in the current section 232A of the Migration Act. The fault element of intention will attach to the physical element of conduct of organising or facilitating, by operation of the default elements in section 5.6 of the Criminal Code.
76.This suggests an element of intention is required to find that a person has been involved in “facilitating” people smuggling. Nothing in the Applicant’s documents or the QSA suggests that he had (at any stage) an intention to organise or facilitate (or be involved in whatsoever) the illegal passage of people to Australia.
77.On the contrary, the QSA states:
ASIO assesses [the Applicant] does not currently hold the intent or capability to undertake people-smuggling activities…
78.While the finding that the “success of the Australian Government’s approach to stopping people-smuggling” may be interpreted as a reason why the Applicant does not currently hold the capability to undertake people-smuggling activities, there is no indication that this is the basis for the Applicant not having an intention to undertake people-smuggling activities. Rather, that should be drawn from his consistent and repeated statements indicating that he does not have, and has never had, an intention to facilitate people smuggling, as well as the lack of evidence that he has been in any way involved in such activities apart from being related to a person onboard SAR [detail omitted].
79.The finding in the Decision that the Applicant’s lack of capability or intention to undertake people-smuggling activities is due to stronger border protection policies is not stated in the QSA.
80.The Decision also erroneously stated that ASIO assessed the Applicant to have been “associated with others who are involved in anti-social or criminal behaviour” and refers to him having “previous networks”. The QSA contains no findings whatsoever in relation to the Applicant’s associations or networks.
81.The QSA’s lack of details regarding the evidentiary basis for its findings mean it is insufficient to be used as a sole basis for finding that the Applicant is not of good character.
82.Policy notes that if an applicant has committed a “very significant offence” (with examples including taking the life of another person, sexual assault, crimes against children, war crimes, genocide) the period of “enduring moral quality” that would need to be demonstrated in order for a decision-maker to contemplate a finding that that person is of good character could be potentially “a period of many years” or effectively that they may never satisfy the good character requirement.
83.Aside from the fact that the Applicant has never been charged with or convicted of a people- smuggling offence, his dishonesty during the First interview cannot be considered to be in the same realm as convictions for genocide, war crimes or crimes against children.
84.Whatever contribution he had to people-smuggling (as his exact degree of “facilitation” appears to be limited to knowledge of two names of persons on SAR [detail omitted]) this contribution is clearly very small. There is no indication, suggestion or finding that the Applicant has ever profited (financially or otherwise) from involvement in people-smuggling or has been an organiser of people-smuggling activities.
Are there any mitigating factors?
85.Should the Tribunal find that the dishonesty displayed by the Applicant during the First interview, as well as the QSA’s findings in relation to his involvement in people-smuggling activities are sufficient for him to not meet the good character requirement, it should also consider whether there are any factors that mitigate the Applicant’s behaviour.
86.Mitigating factors that are relevant to the Applicant’s conduct include:
a.there is no evidence that the Applicant has been dishonest with the Department or ASIO at any other time. His first visa application was made in 2007 and he has lived in Australia for 11 years. He has consistently declared the Conviction and previous charges in his visa and citizenship applications and there is no evidence that he has provided false or misleading information to the Department or other government officials at any time other than during the First interview;
b.he has been assessed by ASIO as not presenting a direct or indirect risk to national security and ASIO has not recommended against the Applicant becoming an Australian citizen;
c.six years has passed since the First interview. During that time the Applicant has responded to numerous requests for further documents and information from the Department and has attended its office for an interview;
d.there is no evidence he has ever endangered Australian society or members of the Australian community in any way;
e.he has accepted responsibility and shown remorse for his conduct. This has been demonstrated through his behaviour (requesting a Second interview and voluntarily divulging his dishonesty) and statements made both to friends and to the Tribunal;
f.he has made an otherwise conscious effort to obey and uphold Australian laws (having only been convicted of one minor offence six years ago during his 11-year residence in Australia);
g.the Applicant was dishonest during an interview that he had no preparation or warning for (the invitation did not state that he would be interviewed by ASIO or what would be discussed during the interview). He was extremely surprised at the questions being asked of him and states that he “panicked” when asked whether he knew anyone onboard SAR [detail omitted] and answered incorrectly out of fear and panic about being sent back to Sri Lanka;
h.he has a long and consistent history of full-time employment since arriving in Australia;
i.he has been heavily involved in the Tamil community in Australia for the last 11 years and has undertaken many hours of voluntary work;
j.he is well-respected within his community and employment circle; and
k.he shares Australia’s democratic beliefs and respects its rights and liberties.
87.In regard to responsibility and remorse, the Applicant states:
I still feel bad about making that mistake in the first interview. Because of that one mistake, when I was younger, this has given me a bad character and reputation with the Department and my character has been tarnished.
Apart from this, I have never given any untrue information about anything to the government. I have never given any false information to the government and I would never make this kind of mistake again in my life…
I came to Australia by boat and am fully aware of the dangerous journey by the terrible sea. I never ever encourage my father or any other person to do this suicide journey. I never ever had greed in making money on some one death and pursuing this dangerous journey. I always work hard and honestly do my activities and earned my income.
88.The evidence before the Tribunal demonstrates that the Applicant has, notwithstanding one lapse six years ago (which he attempted to rectify within weeks of it occurring), respected and abided by the law in Australia and other countries; been honest and financially responsible; been otherwise truthful in his dealings with the Australian government; and has behaved in accordance with Australia’s community standards.
Character statements
89.The Applicant provided a number of character references with his original application and has now obtained further updated statements for the Tribunal. The references have been provided by a range of community members, friends and colleagues.
90.The Decision noted that:
Generally, the character references state that you are hardworking, honest and trustworthy and comment on your volunteer work at your temple and for members of the Tamil community in Western Australia. Some of the character referees acknowledge your criminal offence and comment on your remorse and how you have accepted responsibility for this matter. [emphasis added]
91.The references also confirm that the Applicant is a committed and trusted community member who takes his duties and responsibilities as a tax payer, worker, resident and community member very seriously.
92.They also speak to a growth in the Applicant’s maturity over the last five years (since the First interview was conducted) and the fact that he has built a life in Australia and considers it to be his home (including having purchased two properties).
93.The various character references lodged with the Department and the Tribunal show that the Applicant is respected and liked in his community and workplace, and is trustworthy, generous with his time, diligent and hard-working – factors which demonstrate enduring moral qualities.
(Original emphasis, footnotes omitted.)

The Respondent contends (R2):
Whether the applicant meets the good character requirement in s 21(2)(h)
Conviction and qualified security assessment
21.The Minister acknowledges that the applicant has only a single conviction, that conviction being recorded on [date omitted] January 2013 for failure to comply with a requirement to provide a breath analysis. Nevertheless, that failure to comply with a lawful requirement to provide a breath analysis demonstrates lack of good character.
22.The Minister also submits that the qualified security assessment conducted by ASIO raises significant concerns about the applicant’s character. In particular, ASIO assessed that the applicant was involved in the facilitation of potential illegal immigrants (being his father and one other person) to Australia in relation to Search and Rescue [detail omitted] (SAR [detail omitted]).
23.ASIO further assessed at [11] that the applicant was dishonest in his security assessment interviews regarding his knowledge of, and involvement in, people-smuggling activities and in relation to his people smuggling associations.
24.According to the Citizenship Policy (extracted above), a person of good character would generally not be involved in evading immigration control, assisting others to do so and being involved in the illegal movement of people. Further, the applicant requested a second interview in relation to his citizenship application because he had provided false information in the first interview. While the applicant sought to partially correct his dishonesty, it remains of concern that the applicant was dishonest in the first place and that ASIO continued to assess that the applicant had been dishonest about his knowledge of and involvement in people smuggling activities after the second interview (see T16, p142 at [11]). This is particularly so in circumstances where the applicant has a conviction for failing to comply with a request to provide a breath analysis, and the 2 incidents together demonstrate the applicant’s lack of willingness to be forthcoming and honest with authorities.
25.The Minister submits that significant weight should be given to ASIO’s qualified security assessment.
26.A ‘qualified security assessment’ is defined in s 35 of the ASIO Act as a security assessment in respect of a person:
-that contains any opinion or advice, or any qualification of any opinion or advice that is or could be prejudicial to the interests of a person
-but which does not contain any recommendation about whether certain administrative action, including relevantly the exercise of any power in relation to a person under the Act, should be taken in relation to that person, being a recommendation that would be prejudicial to the interests of the person
whether or not the matters contained in the assessment would, by themselves, justify the prescribed administrative action being taken in relation to the person to the prejudice of their interests.
27.‘Prescribed administrative action’ relevantly includes:
(c) the exercise of any power, or the performance of any function, in relation to a person under the Australian Citizenship Act 2007, the Australian Passports Act 2005 or the regulations under either of those Acts…
28.ASIO did not recommend that the applicant was a direct or indirect risk to security, and therefore the Minister was not required to refuse to approve the applicant becoming a citizen under s 24(4) of the Act. ‘Security’ is defined in s 4 of the ASIO Act to mean:
(a)     the protection of, and of the people of, the Commonwealth and the several States and Territories from:
(i)     espionage;
(ii)    sabotage;
(iii)   politically motivated violence;
(iv)   promotion of communal violence;
(v)   attacks on Australia’s defence system; or
(vi)   acts of foreign interference;
whether directed from, or committed within, Australia or not; and
(aa) the protection of Australia's territorial and border integrity from serious threats; and
(b)     the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).
29.Accordingly, whether a person is assessed to be a risk to Australia’s security requires a high test, and is very different from whether a person is of good character for the purposes of s 21(2)(h) of the Act. ASIO’s finding that the applicant had helped facilitate the illegal movement to Australia of his father and another person was insufficient to find that the applicant was a risk to Australia’s security within the meaning on s 4 of the ASIO Act. However, the Minister submits, for reasons discussed below, that it warrants a finding that the applicant is not of good character for the purposes of s 21(2)(h) of the Act. Further, the qualified security assessment makes clear that its purpose is to assess and advise whether it would be consistent with the requirements of security to approve the applicant become a citizen (emphasis added). It was not the purpose of the qualified security assessment to assess whether the applicant meets the good character requirement, or any other non-security related criteria for citizenship. This is acknowledged by ASIO at [17] of the qualified security assessment, where ASIO says:
While ASIO is not recommending the Minister for Immigration and Border Protection refuse to approve [the applicant] becoming an Australian citizen on security grounds, some information contained within this security assessment may otherwise be relevant to a decision making process which may affect [the applicant’s] eligibility for Australian citizenship…
30.The applicant in his witness statement dated 7 March 2019 has denied being involved in people smuggling. The respondent submits that the Tribunal should prefer the assessment of ASIO to the applicant’s assertions. The assessment of ASIO was very specific, finding that the applicant had been involved in facilitating the passage of his father and one other person to Australia on SAR [detail omitted]. In making this assessment ASIO stated at [16] that it had regard to relevant information and sources available to ASIO (available information) and took into account the currency, credibility, nature and authenticity of the available information. ASIO further stated at [16] that only information with a reasonable nexus to the assessment subject and relevant to the requirements of security was taken into account. ASIO is skilled and experienced in assessing whether people may have been involved in people smuggling and the finding that the applicant had been involved in facilitating the passage to Australia of 2 people, despite his protestations to the contrary, would not have been made lightly.
31.The Minister submits that the Tribunal should recognise the expertise of ASIO, and give weight to ASIO’s assessment: see, for example, Alister v The Queen (1984) 154 CLR 404 at 435, 455 and Leghaei v Director-General of Security [2007] FCAFC 37 at [56]-[61], [65]. This is not a case in the Tribunal’s Security Division, where the Tribunal has access to all relevant material: contrast BLBS and Director-General of Security [2013] AATA 820. Rather ASIO has had access to all the relevant material, and has reached conclusions based on those materials and the Tribunal should now defer to ASIO’s finding that the applicant had been involved in facilitating the passage to Australia of 2 people.
32.Further, the applicant had a right to seek review by the Tribunal of the qualified security assessment under s 54 of the ASIO Act and s 27AA(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act). The applicant has not exercised this right of review and, accordingly, the qualified security assessment remains unchallenged. The applicant indicated in his witness statement dated 7 March 2019 at paragraph 24 that he did not realise what the report was until after the 28 days to appeal the qualified security assessment had expired. The applicant was provided a copy of the qualified security assessment by hand on 26 September 2017 (T15, p133). It appears that the applicant had a migration agent at the relevant time (see T14, p129-132). Shortly after 26 September 2017, the applicant provided the qualified security assessment to his lawyer. The applicant’s lawyer wrote to the Department by letter dated 3 November 2017 (T16, p136-149). Accordingly, even if the applicant was unaware of the nature of the qualified security assessment within the 28 day timeframe (which the Minister does not accept), the applicant had access to legal advice at some stage during this period. Furthermore, even if the applicant did not lodge an application for review within the 28 day time frame, it would have been open to him to seek an extension of time for review under s 29(7) of the AAT Act.
33.Based on all of the above, the Minister submits that the Tribunal should find that the applicant was involved in facilitating the passage to Australia of his father and one other person in 2013, and that the applicant has given false information to the Australian authorities, including ASIO and the Department (in the application for citizenship) in relation to his involvement in the illegal movement of people.
34.Although the alleged involvement in the illegal movement of people was now 6 years ago, the Minister submits that insufficient time has passed, taking into account the seriousness of the alleged conduct, for the Minister to now be satisfied that the applicant is of good character. Further, as at 7 March 2019, the applicant continues to deny that he facilitated the travel to Australia of his father and another person, suggesting that the provision of false information to Australian authorities has continued.
Information provided by applicant to support his character
35.The Minister acknowledges that the applicant has provided a number of witness statements, some in the form of statutory declarations, and most of which acknowledge his past conviction. Many of the witness statements also indicate that the applicant informed the witness that he had been accused of people smuggling and that he had denied the accusation.
…..
37.Taking the policy into account, the Minister contends that it is appropriate for the witness statements to be given some weight. However, the weight to be given to these statements should not be significant. To the extent that the statements refer to the past conviction or the applicant’s possible involvement in people smuggling, the Minister contends that the statements are merely a recording of what the applicant has told each respective witness. The statements otherwise contain few specific positive examples of the applicant’s claimed good character.
HEARING
In his oral evidence to the Tribunal at the hearing, the Applicant referred to his statement dated 7 March 2019 (A2). He stated:
·He came to the Australian mainland through Christmas Island, after obtaining a refugee visa;
·He explained circumstances of his breath test conviction;
·As a result of applying for citizenship he undertook two interviews with ASIO;
·At the first interview he told the Tribunal he lied to the officials about his father being on a people smuggling boat, which capsized. In mitigation he said he panicked at the line of questioning;
·He sought a second interview in order to clarify information he provided at the first interview after discussing matters with a friend;
·At the second interview he told ASIO officials that his father was on board the people smuggling boat, and he gave up the people smuggler’s name. He received this information from his mother;
·He was fully employed in Australia, works approxmately 80 hours per week, owns two properties, and volunteers for a community group cleaning and cooking;
·He is committed to living in Perth and wants citizenship in order to sponsor a spouse visa and start a family; and
·Since leaving Sri Lanka he has had infrequent contact with his parents.
Under cross-examination he stated:
·He accepted he did not tell the truth at the first interview;
·He sought a second interview after discussions with a friend about the role of ASIO;
·At the time of seeking the second interview he said he did not think ASIO knew about his father. Only after his mother called him did he know about his father and the name of the smuggler;
·He said his father did not tell his mother that he was planning to enter Australia;
·He only spoke to his father whilst he was in hospital after the boat capsized;
·He did not tell ASIO about any another people on the boat. He only told them about his father and the name of the people smuggler;
·He did not seek a review of the ASIO Qualified Security Assessment (QSA) because he did not want to add further time to the Citizenship process;
·He passed his Australian Citizenship test after three attempts. The test comprised of multiple choice questions; and
·He travelled to Malaysia on Australian travel documents.
During re-examination at the hearing, the Applicant stated:
·He never spoke to ASIO between 2014 and 2018;
·His father was never mentioned by ASIO in the first interview;
·In the second interview he told ASIO about his father and the name of the smuggler; and
·He did not appeal the ASIO QSA in the first instance because he did not understand the contents of the advice he received.
The Applicant called one witness. The witness confirmed the contents of his statutory declaration (A2 12), stating that:
·He attested to the Applicant’s character, and said he was very hard working and committed as a volunteer to the Tamil community;
·He was unsure as to when he learned about the traffic offence of the Applicant;
·He thinks he became aware of the people smuggling allegation around the time of the Citizenship application in 2018-2019; and
·He believes the Applicant is a very good person.
CONSIDERATION
In determining whether the Applicant was of good character at the time that the Delegate made his decision, the Tribunal must take into account a number of considerations. These are outlined below.
Was the Applicant of good character at the time the Delegate made the decision?
The Tribunal accepts the Applicant is the subject of an alcohol related driving offence. For the purpose of this application it is considered to be minor.
The Tribunal accepts the Applicant has submitted a number of statutory declarations attesting to his character (A2-A10). In the majority these statutory declarations acknowledge his alcohol driving offence and the allegation concerning his role in the facilitation of people smuggling.
In summary the statutory declarations state:
·He is an active member of the Tamil community.
·He has a strong work ethic, is hard working and pays his taxes.
·He is committed and acts as a volunteer in many roles in the Tamil community.
·He is loyal, trustworthy and honest.
The primary contention for the Tribunal relates to the very serious allegation that the Applicant was involved in the facilitation of people smuggling.
The Tribunal notes the Applicant’s statutory declaration (A2). He states:
ASIO interviews
9. I can't exactly remember whether I was invited to the ASIO interview by phone or by email, but I was told it was a citizenship interview. I was questioned as to whether I was aware of anyone in Perth doing people smuggling, who was responsible for the boat that sank, if I was aware of anyone who was involved with the boat that sank.
10.I was also asked if there was anyone related to me or who had a connection to me on the boat that sank. I said no, because I meant that I was not involved with anyone getting on the boat. I did not organise the boat to come to Australia and I was not involved in anything to do with the boat. I also felt like I had been asked these questions out of the blue and I panicked. I knew my father had been on that boat but I did not tell the interviewers that at the time.
11.I did not have a lawyer or a representative at that time. I did not have any advice about what the interview was and what it meant. I didn't know they would be asking all these questions, I thought the questions would be about the court case I had at the time (I was acquitted).
12.There were two people interviewing me and I had an interpreter. The interpreter was Indian and not very clear but I was able to understand them. At that stage my English was very bad.
13.My father never informed [sic] me he would come on the boat or that he would try to come to Australia. I had no information about how my father got on the boat or who helped him. The only thing I knew was that my father was on the boat that sank. I found this out maybe the day after the boat sank. My mother called me and told me that my father went to Australia by boat and the boat had an accident. She didn't know anything else, like whether my father was alive or how the boat sank. My mother updated me after he was picked up by another boat and taken to hospital. I don't remember the date but this was before the ASIO interview.
14.At the same time my mother called me I told some of my friends in my house that that had happened (there were 8 or 9 people living in my house at that time, also from Sri Lanka).
15.After the ASIO interview (first one) I asked my mother how my father got on the boat. She told me the smuggler's name was [name omitted] but she did not know the last name. I did not know this name when I went to the first ASIO interview.
16.My father has not tried to come to Australia again. I didn't know he was going to try to get on the boat. I have not helped anyone come to Australia by boat.
17.My friend helped me with the citizenship application, I did not have a lawyer or agent helping me with it. After the interview, I went home and was thinking about the interview for a few days. I was feeling bad and uncomfortable because I did not declare that I had found out my father was on that boat.
18.I emailed ASIO and told them I wanted to meet them again. I think I had the contact details from the interview. I am trying to log back into that email address as I have not used it for a long time and do not know what the password is.
19.I also spoke to some friends about who ASIO was so I understood more why they were asking those questions.
20.After that, ASIO replied to me and organised another interview. In that interview I admitted that I knew my father was on the boat that sank but because of fear and panic I said I did not know anyone on the boat. I also told them the smuggler's name that I had discovered. Then they asked all the same questions that they had asked in the first interview. All my other answers were the same.
21.I still feel bad about making that mistake in the first interview. Because of that one mistake, when I was younger, this has given me a bad character and reputation with the Department and my character has been tarnished.
22.Apart from this, I have never given any untrue information about anything to the government. I have never given any false information to the government and I would never make this kind of mistake again in my life.
23.It took almost two years for the Department to give me the ASIO report. I got it after I made an online complaint and complained to the Ombudsman. The Department then called me around 4:30pm and told me to come to the Department office. Someone in the building handed me a normal white envelope which had the ASIO report inside. There was no letter or email from the Department and no one explained to me what this report was.
24.My English was not good and I was very busy at work so by the time I realised what the report was and that I had only 28 days to appeal it, the 28 days was over. So I tried to call about it to say the clearance is wrong but they told me the time had passed for appealing it.

The Tribunal accepts the Applicant has not been charged with the offence of facilitating people smuggling, however noted that he is the subject of a QSA by ASIO. It is alleged by ASIO that the Applicant was involved the facilitation of people smuggling activities and associating with people-smuggling associations (T2 11, R1). The allegation related to his father and another person on a search and rescue which capsized, resulting in a number of deaths.
The critical point for ASIO is that the Applicant was dishonest in his dealings with that organisation. This is also of primary concern to the Tribunal.
The Tribunal notes the Statement of Grounds (at T19 167-168, R1 10-11):
10. ASIO assesses Mr [VFWQ] was involved in facilitating the passage of his father and another individual to Australia onboard the vessel associated with people-smuggling venture known as SAR [detail omitted] (hereafter SAR [detail omitted]). SAR [detail omitted] departed for Australia from [location omitted] on [date omitted] July 2013 and shortly after capsized, resulting in the deaths of at least [number of deaths omitted] people onboard. During both SAIs, Mr [VFWQ] denied any involvement in people smuggling.
11. …ASIO assesses Mr [VFWQ] was dishonest during his SAIs regarding his knowledge of, and involvement in, people smuggling activists and in relation to his people-smuggling associations.
…
17. ...some information contained within this security assessment may otherwise be relevant to a decision making process which may affect Mr [VFWQ]’s eligibility for Australian citizenship and the entitlements that accompany Australian citizenship, such as the eligibility to apply for an Australian passport.
The Tribunal is mindful that to attain citizenship, one must satisfy the character test, as a citizenship document is an important part of the process of being accepted into the Australian community. The Tribunal notes that Australian citizenship brings both tangible and intangible benefits.
The Tribunal accepts the Applicant has not been prosecuted by ASIO in respect to the allegation, however after having considered both written and oral evidence submitted by the Applicant, it is not pursuaded by the narrative submitted by the Applicant, and in fact finds it implausible that he had no knowledge or information concerning the whereabouts and activities of his father, given that in a question put to him in oral evidence he said he came from a close family. The Tribunal accepts the Citizenship Policy discusses good character in the following terms:
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 the case Assafiri Minister for Immigration and Border Protection [2014] AATA 35 (Assafiri), Senior Member Toohey said (at [55]):
55. For the Minister it is submitted that the standard of “good character” required in relation to an application for citizenship is higher than that required by s 501 of the Migration Act 1958 under which the Minister may refuse or cancel a visa of a person who does not satisfy the Minister that she or he passes the character test in the Act.
In Assafiri, Senior Member Toohey also stated:
64. There is no formula for determining how much is sufficient time in order to be satisfied that a person is of good character. The ACIs refer to the phrase “enduring moral qualities” as encompassing the concept of “characteristics which have been demonstrated over a very long period of time”: 10.3.1.
At 10.5.2 they state that, in the case of a serious offence, “a significant amount of time may have to have passed before the decision maker is satisfied that the person is now of good character”. A decision-maker
“needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any [...] application”: cl 10.5.4.
The Tribunal is unable to determine the character of the Applicant prior to his entrance into Australia. It does however have evidence that ASIO has determined that the Applicant has been dishonest in his dealings with Australia’s primary inteliigence agency and has grave suspicions that he has been involved in the facilitation of people smuggling and associated with people in that trade.
Whilst there is no direct evidence to support this view, the Tribunal is pursuaded that there is sufficient evidence in the ASIO’s Statement of Grounds for the Tribunal to come this conclusion on the basis of paragraph 45.
The Tribunal notes s 35(1) of the Australian Security Intelligence Organisation Act 1979 (Cth) (the ASIO Act) provides:
qualified security assessment means a security assessment in respect of a person that:
(a)contains any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person; and
(b)does not contain a recommendation of the kind referred to in paragraph (b) of the definition of adverse security assessment;
whether or not the matters contained in the assessment would, by themselves, justify prescribed administrative action being taken or not being taken in respect of the person to the prejudice of the interests of the person.
(Original emphasis.)
The Tribunal also notes s 4 of the ASIO Act states:
security means:
(a)the protection of, and of the people of, the Commonwealth and the several States and Territories from:
(i)espionage;
(ii)sabotage;
(iii)politically motivated violence;
(iv)promotion of communal violence;
(v)attacks on Australia’s defence system; or
(vi)acts of foreign interference;
whether directed from, or committed within, Australia or not; and
(aa)the protection of Australia’s territorial and border integrity from serious threats; and
(b)the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).
(Original emphasis.)
The Tribunal places great weight on ASIO’s statutory responsibilities and accepts the important role the organisation plays in the security of Australia. The Tribunal therefore, places significant weight on the qualified security assessment it has in respect to the Applicant.
Whilst the Tribunal has evidence that the Applicant failed to submit to a breath analysis in 2013 (T9 111, R1) and the consequence of this offence resulted in a $900.00 fine and disqualification of 10 months for his motor driver’s licence, the Tribunal accepts this offence is not of primary concern before it in determining the character of the Applicant.
In the context of ASIO’s assessment, the Tribunal finds the Applicant was dishonest in his dealings with officials of that organisation. The Tribunal accepts that since that time the Applicant may well have gone through a process of rehabilitation whilst in Australia, however in the Tribunal’s view, sufficient time has not passed in order to determine that he is a person of good character for the purpose of the Citizenship Act.
The Tribunal finds, having reviewed the evidence before it, that the Applicant’s activity in terms of the facilitation of people smuggling was calculated, and is not the behaviour of a person of good character. It finds his explanation of lack of knowledge in respect to his father and another person to be implausible.
Was the Applicant of good character at the time of his application?
Character references
The Tribunal has considered the references provided on behalf of the Applicant.
The Tribunal accepts there are a number of references as statutory declarations attesting to the character of the Applicant. They describe the Applicant as being friendly, having a strong work ethic, a regular volunteer to community work, trustworthy, respectful, and helpful.
They also disclose that the Applicant is remorseful for not being honest with ASIO officials during his initial engagement with that organisation. The Tribunal accepts this may well be the case.
The Tribunal is mindful of the weight attached to these submissions and finds them to be helpful to the Applicant. They are weighted appropriately, given they are in the form of statutory declarations. Having considered them carefully the Tribunal is however not persuaded that the description of his character outweighs the Applicant’s QSA.
The Tribunal places great weight on the ASIO assessment arising out of two Security Assessment Interviews that indicate the Applicant to be dishonest in his dealings with that organisation.
CONCLUSION
The Tribunal accepts and appreciates the Applicant is making an effort to be a good and productive member of the Australian community.
It is the Tribunal’s view that while the Applicant may have a genuine desire for Australian citizenship, Australian citizenship is more than a mere piece of paper, it is about a person embodying and reflecting the values of Australian society in everyday life; a person abiding by and upholding Australia’s laws.
The Tribunal notes the comments of Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]:
The grant of Australian citizenship is a privilege not bestowed lightly.
It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. […] The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year’s time when he can demonstrate a longer period of positive contribution to the Australian community.
The Tribunal is of the view that more time needs to pass before a proper assessment can be made in determining whether the Applicant may be considered to have satisfied the character requirements of the Citizenship Act. Additional time will allow for a greater capacitity to assess the Applicant’s character in terms of his commitment and values to Australia.
Having considered all the evidence before it, the Tribunal is not satisfied that at the time of submitting his application for citizenship the Applicant was of good character for the purposes of s 21(2)(h) of the Citizenship Act.
DECISION
For the reasons stated above the Tribunal affirms the decision under review.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

..................................[sgd]......................................
Associate
Dated: 31 May 2019

Date(s) of hearing: 9 May 2019

Representative for the Applicant: Ms A Graziotti

Solicitors for the Applicant: Estrin Saul Lawyers

Representative for the Respondent:
Ms A Ladhams

Solicitors for the Respondent:

Australian Government Solicitor

[2019] AATA 1096

31 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Standing

Statutory Construction

Date(s) of hearing:	9 May 2019
Representative for the Applicant:	Ms A Graziotti
Solicitors for the Applicant:	Estrin Saul Lawyers
Representative for the Respondent:	Ms A Ladhams
Solicitors for the Respondent:	Australian Government Solicitor