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

VFWQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4849 (2 December 2020)
Division:GENERAL DIVISION
File Number: 2018/6287
Re:VFWQ
APPLICANT

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

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:2 December 2020
Place:Perth

The Reviewable Decision is set aside and is remitted to the Department for reconsideration with the direction that the Applicant is of good character and therefore satisfies s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
.............[Sgd]...........................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – re-hearing following remittal from the Federal Court – whether Tribunal satisfied of Applicant’s good character at the time of the Tribunal’s decision – qualified security assessment from Australian Security Intelligence Organisation (ASIO) – non-disclosure that Applicant knew his father was on board a people smuggling vessel in first ASIO interview – Applicant requested second ASIO interview to voluntarily disclose information – Applicant only has one traffic conviction in 2013 – substantial contributions to community through employment and volunteer work over a 12 year period – reviewable decision set aside and remitted for reconsideration with a direction that the Applicant is of good character under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth)
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 5, 20, 21(1), 21(2), 21(2)(h), 24, 24(1), 24(4), 52(1)(b)
Australian Security Intelligence Organisation Act 1979 (Cth) – ss 4, 17(1), 17(1)(c), 35, 37(1), 37(2), 54(1)
Road Traffic Act 1974 (WA) – s 67(2)(a)
CASES
Archibald v Barndon (1991) 16 MVR 239
BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39
BLBS and Director-General of Security [2013] AATA 820
Fang and Minister for Immigration and Border Protection [2018] AATA 3686
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
Leghaei v Director-General of Security (2007) 97 ALD 516
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Smith v Turner (Supreme Court of Western Australia, Walsh J, 4 March 1992)
VFWQ and Minister for Home Affairs [2019] AATA 1096
VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIAL
Citizenship Policy, Department of Immigration and Border Protection (1 June 2016) – Chapters 11, 13
CPI 15 – Assessing Good Character Under the Citizenship Act (17 April 2019) in Revised Citizenship Procedural Instructions, Department of Home Affairs (1 January 2019) – [4.1], [4.3], [4.4], [4.12]
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
2 December 2020
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Minister for Home Affairs (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated

18 October 2018 (T2/8-17) to refuse to grant the Applicant Australian citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the CitizenshipAct). This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (Tribunal).
The basis for the refusal was that the delegate was not satisfied that the Applicant was of good character, as required by s 21(2)(h) of the Citizenship Act (T2/10-15).
The Applicant initially lodged an application for a review of the Reviewable Decision in the Tribunal on 30 October 2018 (T1/1-7). However, on 31 May 2019 a differently constituted Tribunal affirmed the Reviewable Decision (VFWQ and Minister for Home Affairs [2019] AATA 1096).
The Applicant appealed this decision to the Federal Court of Australia. On 28 February 2020, the Federal Court ordered that the decision of the Tribunal dated 31 May 2019 be set aside and remitted the matter to the Tribunal to be heard and decided according to law (VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 (Appeal Decision)).
The basis for the remittal was that the Tribunal, as it was then constituted, erred with respect to the time at which the Tribunal was required to be satisfied that the Applicant was of good character. Instead of considering whether it was satisfied as to the good character at the date of the Tribunal’s decision (31 May 2019), the Tribunal had incorrectly and inconsistently referred to the relevant time being the time of the Minister’s decision, the time of the delegate’s decision and at the time the Applicant made his application for citizenship. However, as stated in the Appeal Decision by Her Honour Banks-Smith at [42], “the Tribunal is to consider whether it is satisfied as to the good character of the applicant as at the time of its decision and having regard to relevant evidence available to it at that time”.
Following remittal from the Federal Court the matter was re-constituted to a new member, Senior Member Dr M Evans-Bonner, who conducted a re-hearing of the application on

20 October 2020.
BACKGROUND
The Applicant was born in Sri Lanka. He arrived in Australia as an illegal maritime arrival on 24 February 2007, first entering the territory of Christmas Island before being transferred to Nauru on 17 March 2007 (T2/9; T17/192).
On 14 December 2007 the Applicant applied for a Refugee (subclass 200) visa (Refugee Visa) (T2/9).
On 4 January 2008 the Australian Security Intelligence Organisation (ASIO) furnished a non-prejudicial security assessment in respect of the Applicant’s application for the Refugee Visa (T23/231). The security assessment was furnished pursuant to s 17(1)(c) and s 37(1) of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act).
He was subsequently granted the Refugee Visa on 10 January 2008. He arrived in Australia on that visa on 15 January 2008 (T2/9; T17/192).
Since June 2008, the Applicant has been continuously employed, including as a cleaner, factory hand, delivery driver, loader and forklift operator.
On 14 January 2013 the Applicant was convicted in the Fremantle Magistrate’s Court of “Failure to comply with a requirement to provide a breath analysis” under s 67(2)(a) of the Road Traffic Act 1974 (WA) (Traffic Offence). The date that this offence was committed was 24 June 2012. He received a $900 fine and his drivers’ licence was disqualified for 10 months (T13/175; ST1/266).
On 18 December 2013, the Applicant lodged an application for Australian citizenship by conferral with the then Department of Immigration and Border Protection (now, the Department of Home Affairs) under s 21(1) of the Citizenship Act (T9/124-133). In this application form, the Applicant disclosed that he had been convicted of the Traffic Offence, as well as other pending charges that he was later acquitted of (T9/131). In response to the question “[h]ave you ever been involved in any activity, or been convicted of any offence, relating to the illegal movement of people to any country (including Australia)?”, the Applicant ticked the box marked “No” (T9/131).
On 23 December 2013, ASIO requested that the Applicant’s application for citizenship be referred for assessment (T2/9).
The Department emailed a letter dated 30 January 2014 to the Applicant asking him to attend an interview to assist in the assessment of his citizenship application (A2/46; R4). The Applicant was interviewed by ASIO officers on 4 February 2014 (First interview).
On 1 March 2014, the Applicant emailed the Department requesting a second meeting, which appears to have been received in the Department’s email inbox on 2 March 2014 (A2/47; R4). The Department sent the Applicant a letter dated 14 March 2014 asking him to attend a second interview on 24 March 2014 (A2/48; R4). He attended this interview and was again interviewed by ASIO officers (Second interview).
The Department sent the Applicant a letter dated 23 June 2014 which stated that an appointment had been made for him to sit the citizenship test on 2 July 2014 (T10/134). He attended and passed this test.
The Department sent the Applicant a letter dated 12 September 2014 requesting the Applicant to complete a declaration form and provide additional documentation, which he complied with (T11-T13/139-176). In a letter dated 17 August 2016, the Department asked the Applicant to provide further documents to help confirm his identity, which he also complied with (T14/177-190).
A letter from the Applicant’s former legal representatives dated 3 November 2017 states that on or around April 2017 the Applicant contacted the Ombudsman regarding progress of his citizenship application. The letter stated that the Applicant was advised by the Ombudsman that his application was being investigated by ASIO (T20/201).
The Applicant was invited to attend the Department’s office in Perth, which he attended on 26 September 2017. He attended the office and was handed a copy of an undated qualified security assessment (QSA) from ASIO (T19/197).
The QSA made the following statement concerning the Applicant, based on the two Security Assessment Interview’s [SAI’s] of the Applicant conducted by ASIO officers (T23/231):
10.ASIO assesses [the Applicant] was involved in facilitating the passage of his father and another individual to Australia onboard the vessel associated with people smuggling venture known as [vessel reference omitted]. [The vessel] departed for Australia from West Java on 23 July 2013 and shortly after capsized, resulting in the deaths of at least 17 people onboard. During both SAI’s, [the Applicant] denied any involvement in people smuggling.
11. In [the Applicant’s] first SAI, he denied knowing anyone on board [the vessel], however, he retracted this in his second SAI, admitting that he was aware of his father’s presence on the venture, but did not wish to say this at the first interview. [The Applicant] also stated he had since learnt from his father that the smuggler was called [name omitted]. [The Applicant] said he had only learnt of this since his first interview. ASIO assesses [the Applicant] was dishonest during his SAIs regarding his knowledge of, and involvement in, people smuggling activities and in relation to his people-smuggling associations.
12. Border integrity policies have diminished the ability of people smugglers to undertake successful people-smuggling operations to Australia.
13. Should people-smuggling networks re-establish to meet any new demand, ASIO assesses [the Applicant] does not currently hold the intent or capability to undertake people smuggling activities and, therefore, is not directly or indirectly a risk to security.
The QSA continued to state that (T23/231):
15. ASIO assesses [the Applicant] is not directly or indirectly a risk to security, and that it would be consistent with the requirements of security to approve [the Applicant] becoming an Australian citizen.
This means that the prohibition in s 24(4) of the Citizenship Act does not apply. In summary, s 24(4) provides that the Minister must not approve a person becoming an Australian citizen if there is an adverse security assessment or a QSA that the person is directly or indirectly a risk to security.
On 5 November 2017, the Applicant’s former legal representatives made submissions in support of fast tracking his citizenship application (T20/200-213).
The Department (which had been re-named the Department of Home Affairs) sent the Applicant a letter dated 16 January 2018 inviting him to comment on adverse information, specifically the Traffic Offence and the QSA (T22/216-222).
Two days later, on 18 January 2018, the Department sent the Applicant another letter inviting him to comment on further adverse information, this time the Applicant’s declaration in his citizenship application that he had not been involved in any activity relating to the illegal movement of people to any country (including Australia) (T23/223-233).
The Applicant was granted a Class BB Subclass 155 Five Year Resident Return (permanent) visa on 13 February 2018, which is the visa he currently holds (T2/9). This means that he is a permanent resident within the meaning of s 5 of the Citizenship Act.
The Applicant’s then legal representative at that time made representations on his behalf in a letter dated 20 February 2018 (T24/234-241).
However, as noted above in paragraph [1], on 18 October 2018, a delegate of the Respondent made the Reviewable Decision to refuse to grant the Applicant Australian citizenship by conferral (T2/8-17).
MATERIAL BEFORE THE TRIBUNAL
The application was heard on 20 October 2020 and the parties appeared in person. The Applicant was represented by Ms Graziotti of Estrin Saul Lawyers. The Respondent was represented by Mr Papalia of the Australian Government Solicitor.
The Applicant gave evidence at the hearing and was cross-examined by Mr Papalia.
The Tribunal admitted into evidence the following materials at the hearing:
(a)the Applicant’s Statement of Facts, Issues and Contentions dated 19 June 2020 (Exhibit A1);
(b)the Applicant’s bundle of evidence comprising 48 pages, filed with the Tribunal on 19 June 2020 (Exhibit A2);
(c)the Respondent’s Statement of Facts, Issues and Contentions dated 16 July 2020 (Exhibit R1);
(d)
the s 37 (T-documents) numbered T1 to T27, comprising pages 1 to 264

(Exhibit R2);
(e)the Respondent’s Supplementary Relevant Documents, numbered ST1 and comprising pages 265 to 269 (Exhibit R3); and
(f)correspondence between the Applicant and the Department regarding security assessment interviews, from 30 January 2014 to 2 March 2014 (Exhibit R4).
ISSUE
The issue that the Tribunal must determine in this review is whether the Tribunal is satisfied, at the time of the Tribunal’s decision, that the Applicant is of good character for the purpose of s 21(2)(h) of the Citizenship Act.
LEGISLATIVE AND POLICY FRAMEWORK
Citizenship by conferral
Section 21(1) of the Citizenship Act provides that:
A person may make an application to the Minister to become an Australian citizen.
Section 20 of the Citizenship Act outlines the requirements for becoming an Australian citizen:
(a)the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and
(b)if the person is required to make a pledge of commitment to become an Australian citizen—the person makes that pledge.
Section 24 of the Citizenship Act provides:
(1)If a person makes an application under section 21, the Minister must,
by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2)The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
…
(4)If the person is not covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section 4 of that Act).
(4A)If the person is covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen if the person:
(a)if subparagraph (4B)(b)(i) applies to the person:
(i)     has been convicted of a national security offence; or
(ii)    subject to subsection (4C), has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to a period of imprisonment of at least 5 years; or
(b)if subparagraph (4B)(b)(ii) applies to the person—has been convicted of a national security offence.
(4B)A person is covered by this subsection if:
(a)at the time the person made the application under section 21, the person:
(i)     is not a national of any country; and
(ii)     is not a citizen of any country; and
(b)either:
(i)     the person was born in Australia; or
(ii)     the person was born outside Australia and, at the time of the person’s birth, the person had a parent who was an Australian citizen.
(4C)The Minister may decide that subparagraph (4A)(a)(ii) does not apply in relation to a person if, taking into account the circumstances that resulted in the person’s conviction, the Minister is satisfied that it would be unreasonable for that subparagraph to apply in relation to the person.
(Notes omitted.)
Section 21(2) of the Citizenship Act sets out general eligibility requirements for citizenship. It provides:
(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.
(Emphasis added.)
The Reviewable Decision in this application is reviewable by the Tribunal, as

s 52(1)(b) of the Citizenship Act provides that the Tribunal has jurisdiction to review decisions made under s 24:
(1)An application may be made to the Administrative Appeals Tribunal for review of the following decisions:
…
(b)a decision under section 24 to refuse to approve a person becoming an Australian citizen; …
Character
The Citizenship Act does not include a definition of “good character”. The meaning of “good character” was considered by the Federal Court in BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39 (BOY19). O’Bryan J stated at 51-52 [51]:
The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer (1989) 168 CLR 210 at 216; 89 ALR 71 at 75 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 348; 94 ALR 11 at 32; 21 ALD 1 at 18 per Mason CJ and CLR 380–2; ALR 56–8; ALD 40–2 per Toohey and Gaudron JJ. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.

When considering the meaning of “good character”, in BOY19, O’Bryan J referred to the preamble of the Citizenship Act, at 52 [52]-[53]:
[52]The subject matter, scope and purpose of the Act is informed by its Preamble which states:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)     by pledging loyalty to Australia and its people; and
(b)     by sharing their democratic beliefs; and
(c)     by respecting their rights and liberties; and
(d)     by upholding and obeying the laws of Australia.
[53]The ideals of diversity, democracy and liberty, reflected in the Preamble to the Act, indicate that the expression “good character” is not to be informed or assessed by individual religious, political or social beliefs, but by moral qualities that are regarded as a necessary concomitant of Australian citizenship. Matters that bear upon a person’s good character for the purposes of the Act are matters relevant to the obligations of citizenship as expressly or impliedly reflected in the Act, including its Preamble.
The Citizenship Policy, Department of Immigration and Border Protection (Citizenship Policy) published on 1 June 2016, and the Revised Australian Citizenship Procedural Instructions published on 1 January 2019 (Instructions) provide guidance on the application of the “good character” requirement. CPI 15 – Assessing Good Character Under the Citizenship Act (CPI 15) of the Instructions is the Instruction relevant to this application, with the most recent version being issued on 17 April 2019.
Chapter 11 of the Citizenship Policy provides some guidance as to what constitutes good character. It states (page 145):
‘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…
CPI 15, at [4.1], further explains:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
·     consider any character issues that arise on the facts of a case;
·     consider all relevant information;
·     guard against bias;
·     be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
·     be mindful that a person who may not have been of good character can become a person of good character;
·     continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
In most cases it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.
The Citizenship Policy (pages 145-146) and CPI 15 (at [4.3]) both refer to decisions that discuss the definition of “good character”. These include the following definition from Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431–432 (Irving) (Citizenship Policy, page 145):
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 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.
After citing the above passage from Irving, the Citizenship Policy (page 145–146) explains:
In this context, ‘moral’ does not have any religious connotations. The phrase ‘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 Australian society.
The good character requirement looks at the essence of the applicant.
Their behaviour is a manifestation of their essential characteristics.
This broad definition 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.
The Citizenship Policy also (page 146) refers to the decision of Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 (Fenn), 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 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 [sic] time when he can demonstrate a longer period of positive contribution to the Australian community.
Relevantly, in Irving, at 424, Davies J stated that “[t]he question whether a person is or is not of ‘good character’ is primarily an issue of fact.” Davies J further stated that the assessment of character requires the decision-maker to exercise a value judgment, at

427–8:
I should reiterate that the issue for decision was an issue of fact, the determination of which Parliament reposed in the Minister and his delegates. It is not the task of this Court to come to its own view of that fact. The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision.
Further, the Citizenship Policy (page 146) cites the decision of Deputy President Forgie in

Zheng and Minister for Immigration and Citizenship [2011] AATA 304
at [120]:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character. Doing good works and acts of kindness may be another. How a person behaves when trouble finds them or they are confronted by situations that make them uncomfortable may be yet another.

The ways are not finite.
The Citizenship Policy also provides a non-exhaustive list of “[c]haracteristics of good character” (page 147; see also CPI 15 at [4.4] which contains a similar list). It provides that:
…an applicant of good character would:
·     respect and abide by the law in Australia and other countries
·     be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·     be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
o   providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
o   involvement in bogus marriage
o   concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
o   involvement in Centrelink or Australian Tax Office fraud
o   giving false names and/or addresses to police
·     not be violent, involved in drugs or unlawful sexual activity, and 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)
·     not 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
·     not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·     not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·     not be the subject of any extradition order or other international arrest warrant
·     not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·     not be the subject of any verifiable information causing character doubts.
CPI 15 at [4.12] lists mitigating factors that decision-makers should consider when assessing whether an applicant may be of good character. These factors relevantly include the following:
·     What is the length of time since the offence and conviction? ...
·     Has the applicant accepted responsibility and shown remorse for their conduct?
·     How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond? …
Has the applicant made an effort to rehabilitate?
·     Have they made a conscious effort to obey and uphold Australian laws? For example, have they undertaken drug and/or alcohol counselling, an anger management course, a program or counselling for sex offenders or any other programme that addresses risk factors relating to their offending?
·     Have they moved away from bad influences, for example by dissociating themselves from a peer group or an organisation? …
What was the applicant’s age at the time the offence was committed?
If the applicant committed the offence at a young age, the offence may be given less weight. The person may have matured and gained greater respect for upholding the law, and criminal offences from that period of life may not be indicative of their current character. This will depend on the nature of the offending and any subsequent offences. …
Is there any other evidence that the person is of good character?
Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character.
·     Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character.
The section of the Citizenship Policy titled “[w]eighing up the character decision” (pages 149–150) states:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·     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.
In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:
‘a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however,

that, despite the many good qualities possessed by a person,

those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.’
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.
In Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082 at

[82]–[84], Senior Member Puplick emphasised the importance of applicants being truthful:
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. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.
(Footnotes omitted.)
Further, in Fang and Minister for Immigration and Border Protection [2018] AATA 3686 at [97], Senior Member Puplick made the following comment about the need for an applicant to be truthful:
those, who are not citizens and who are seeking to do so, must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement – applicable indeed, equally to citizens and non-citizens alike
Further, the section of the Citizenship Policy titled “References” (page 155) 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. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, and who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc., if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.
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. There is a risk that such statements have been coerced either directly or indirectly.
Decision makers should give little weight to references which are identical, or very similar, in wording.
Security assessment
Section 4 of the ASIO Act defines “security” as:
(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).
Section 17(1) of the ASIO Act provides, in part:
(1) The functions of the Organisation are:
(a)to obtain, correlate and evaluate intelligence relevant to security;
(b)for purposes relevant to security, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes;
(c)to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.
…
Section 37(1) of the ASIO Act provides that the functions of ASIO include to provide security assessments to other Commonwealth agencies. The section states:
(1) The functions of the Organisation referred to in paragraph 17(1)(c) include the furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.
Section 37(2) of the ASIO Act concerns QSA’s and states:
(2) An adverse or qualified security assessment shall be accompanied by a statement of the grounds for the assessment, and that statement:
(a)shall contain all information that has been relied on by the Organisation in making the assessment, other than information the inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security; and
(b)shall, for the purposes of this Part, be deemed to be part of the assessment.
Section 35 of the ASIO Act defines a “qualified security assessment” as:
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.)
An “adverse security assessment” is defined in s 35 of the ASIO Act as:
adverse security assessment means a security assessment in respect of a person that contains:
(a)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)a recommendation that prescribed administrative action be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person.

Section 54(1) of the ASIO Act provides that:
(1) An application may be made to the Tribunal for a review of an adverse or qualified security assessment.
IS THE TRIBUNAL SATISFIED THAT THE APPLICANT IS OF GOOD CHARACTER?
Contributions to the community
The Applicant has been employed since shortly after being granted a visa in June 2008. He provided evidence of his employment and paying taxes since 2010 (A2/6-8, 11-16, 28-45). This information also corroborates the Applicant’s evidence that he often works 60 to 70 hours per week for a transport company and between 15 and 20 hours for a bakery (A2/4).
The Applicant has also purchased two investment properties during the time he has lived in Australia with his income, stating he was able to do so because “I worked very long hours, seven days” (transcript/28).
The Applicant has numerous references from his employers which describe the Applicant as hard working and trustworthy. These include a statutory declaration dated 25 May 2020 from the Operations Supervisor of his current employer which states in part (A2/10):
[The Applicant] was originally employed through labour hire but he has shown great initiative and a wonderful work ethic that we have hired him full time as a [company name omitted] employee, he is an asset to the company, and we did not want to lose him.
…
As this contract is carrying general waste from the transfer station to landfill we struggle to get long term committed drivers as it is not a glamorous job, but this has never phased [the Applicant] and he is always keen to work weekends and any other extra hours we ask of him, he is keen to impress and progress his career with us.
He is a valued employee and is respected for the work he does for us.
A further statutory declaration from the Applicant’s previous Operations Manager at the same employer dated 5 February 2019 (A2/27) states in part:
I have known [the Applicant] since I employed him in October 2018, as a truck driver and front-end loader operator for a waste transfer station
It is not a glamorous job at the waste transfer station, a lot of employees do not like doing this work, but [the Applicant] gets stuck in and never complains.
[The Applicant] is friendly and respectful, he has a strong work ethic. In the short time [the Applicant] has worked under me, I am very impressed with his work ethic, and reliability. He takes his job very personally, and with pride. He has proven to be a very worthwhile addition to our company.
A statutory declaration dated 3 February 2018 from the General Manager of another transport company for which the Applicant has worked (T24/247) states in part:
I have known [the Applicant] since I employed him in August 2015 as a driver, loader and forklift operator.
[The Applicant] is polite, respectful, has a strong work ethic and responsibility toward any task he is given.
I have found him to be honest and dependable with initiative and drive to make a better life for himself.
He has told me of his problems with gaining citizenship and without knowing the circumstances concerning the decision I can only support this young man in his desire to gain Australian citizenship from my contact with him in the workplace.
[The Applicant] has proved himself to be trustworthy and dependable with the desire to make friends and always offers a helping hand to his work mates and peers if in need.
He is a valued member of [company name omitted] and he has earned my respect and appreciation for being a loyal and diligent member of our team.
In addition to his employment, there is substantial evidence before the Tribunal regarding volunteer work that the Applicant has undertaken. The Applicant’s evidence was that once or twice a week he undertakes volunteer work at a Hindu temple, and that he has been doing so for approximately 13 years. This involves gardening, taking care of birds and cooking (transcript/29-30). There are numerous statutory declarations before the Tribunal which attest to the Applicant’s volunteer work. A friend who has known the Applicant as part of his ethnic community since 2009 said in a statutory declaration dated 25 May 2020 (A2/9):
[The Applicant] is a very hard working person always willing to help others in need. I have seen him undertaking volunteer work at Temple and helping to organise events. He is a simple and down to earth person who is respectful towards the community and always willing to help…
[The Applicant] is a regular donor towards the [name omitted] Foundation, a charity I am involved in Sri Lanka which works towards providing digital information resources to students and the public. [The Applicant] is a regular donor towards the [name omitted] Foundation and he makes sure that he sends donations even without anyone asking for it…
He is a genuine person and I believe that he will keep contributing to the community as much as he can.
A letter dated 7 February 2019 from a friend who has known the Applicant for approximately nine years stated (A2/21):
[The Applicant] is a man of good character and has been a volunteer in a local Hindu Church and other community groups. [The Applicant] is a reliable and trust worthy person. He will be an asset to Australia… I am confident that [the Applicant] will continue to contribute significantly to the Community of Western Australia.
The former President of the temple attested in a statutory declaration dated

8 February 2019 (A2/19):
[The Applicant] is a regular visitor [of the temple] and does voluntary work in the temple such as gardening, cleaning, & cooking food for the devotees. He never expects any money as a favour of return… he is quiet, humble and likeable character within our community… He is very hardworking and responsible and has a lot of self confidence and pride.
Another statutory declaration dated 9 February 2019 (A2/17) from a person who had served on the Management Council of the temple stated:
I have known him since 2012. [The Applicant], being a devotee and a volunteer at the Temple, has worked towards the betterment of the Cultural and Worship Centre. Since 2013 [the Applicant] has made significant contributions in arranging volunteer works and charity events for this Cultural and Worship Centre. I see him at the temple on special occasions to perform prayers and to perform voluntary work at the Temple.
[The Applicant] was one of the volunteers who helped the construction team during the construction activities of the temples… (the entry tower) which was completed in 2013. His contribution is very much appreciated by fellow devotees. He is well liked by our community and his contributions to the Cultural and Worship Centre are very much appreciated by the fellow community members…
A further statutory declaration dated 25 February 2019 (A2/25-26) from the former chief priest at the Applicant’s temple stated:
[The Applicant] is a hardworking genuine person who thinks no harm for others. He volunteer to transport senior citizens and fellow refugees to the temple and other places who cannot drive. Also he took responsibility for feeding the birds raised in the temple on his own expense.
In addition to those discussed above, the Applicant has provided additional statutory declarations from friends and colleagues in support of his citizenship application (T20/210-213; T24/248-251, 253, 255-256; A2/27). Additionally, the statutory declarations before the Tribunal (including those at A2/17, 18, 19-20, 23-24, 25-26) and reference letter (A2/21-22) refer to the people smuggling allegations and/or the ASIO interview. These references, in the Tribunal’s opinion, demonstrate the Applicant’s good standing in the community. His peers have been willing to swear statutory declarations as to his character, which gives them added weight. Many of the references expressly refer to the ASIO interview and people smuggling allegations, and yet with the knowledge of these allegations, the deponents were willing to vouch for the Applicant’s good character. The Tribunal therefore gives significant weight to the references attesting to the Applicant’s good character, work ethic and contributions to the community through volunteering.
The Tribunal finds that the Applicant has made contributions to the Australian community through working and paying taxes for the last 12 years, and through undertaking weekly volunteer work throughout that time. The Tribunal accepts that the Applicant is a hard and diligent worker who undertakes almost double the number of hours work per week as the average full-time employee. It is evident from the statutory declarations discussed above that the Applicant has the respect of his managers at work as well as senior persons from his temple. The Tribunal regards this evidence as an indication that the Applicant is a person of good character.
The Applicant’s Traffic Offence
The Applicant’s evidence concerning the Traffic Offence was that he was involved in a minor traffic crash in 2012. His evidence was that he gave his contact details and licence information to the other driver and drove home. After arriving home, the Applicant drank some alcohol with some friends. He stated that after an hour the police arrived and asked him about the accident and that he told them he was the driver of the car in the accident. The police asked him to undergo a breath test and he refused. The Applicant said in his statutory declaration, “[t]he police harassed me and took me to the police station and asked me to do a blood test”, and the Applicant refused again (A2/1).
In his evidence at the hearing the Applicant stated that he was concerned about the breath test and blood test results because he had been drinking after the accident. The Applicant did, however, accept responsibility for his actions. In his evidence at the Tribunal the Applicant stated that he did not know the law, but that when his lawyer explained to him that he should have undergone the breath test, he pled guilty (transcript/14). When asked by Ms Graziotti if he gave police any other reason for refusing the breath test, the Applicant stated that he told them he had asthma, but the main reason was he was concerned about drinking after he arrived home (transcript/14).
The Applicant’s account of events was generally consistent with the statement of material facts recorded by the police, which the Tribunal has had the benefit of reviewing (ST1/268-269). The statement of material facts recorded the Applicant refused three times to have the breath test before being conveyed to the police station. The statement of material facts mentions the Applicant stating his asthma as an excuse for refusing the test but does not mention concerns arising from drinking with friends at home after the accident.
Mr Papalia submitted that the essential elements of the Traffic Offence were that a lawful direction was clearly given, that the Applicant understood that he was required to provide a breath analysis and he failed to do so, citing Archibald v Barndon (1991) 16 MVR 239 as authority. Mr Papalia further submitted that it was not a defence for a person to refuse to undergo a breath test because they had been drinking since the accident, citing Smith v Turner (Supreme Court of Western Australia, Walsh J, 4 March 1992) as authority (transcript/57). Mr Papalia explained that he sought to illustrate that the Minister’s concern was that the Applicant wilfully ignored authority in refusing the breath test (transcript/58).
The Tribunal agrees with Mr Papalia’s submissions regarding the elements of the Traffic Offence and that the Applicant’s excuse of drinking after the accident was not a defence. However, the Tribunal observes that the Applicant has accepted responsibility for this offence and has not sought to dispute that the elements of the offence were made out.
Additionally, notwithstanding a minor discrepancy between the Applicant’s version of events and the statement of material facts (namely the reference to his subsequent drinking), the Tribunal formed the opinion that the Applicant was a truthful witness who accepted responsibility for his actions. Indeed, the Tribunal accepts that the Applicant pled guilty to the Traffic Offences following his lawyer telling him that he was required to undergo the breath test when asked by police. The Tribunal further notes that the Applicant committed the Traffic Offence on 24 June 2012 and was convicted on 14 January 2013. Thus, approximately eight years and five months have passed since this offence was committed. The Applicant has not committed any other offences and has been a law-abiding member of the community. The absence of any offences since the Traffic Offence indicates that the Applicant is a person who does respect Australian laws. Further, the Tribunal accepts the Applicant’s evidence that he had subsequently been asked to provide breath tests on many occasions and that he has complied (transcript/14), noting that the Applicant works as a delivery driver.
The Applicant’s dishonesty in the First interview and the QSA
In the Applicant’s statutory declaration, he said the following about being asked about people smuggling in his ASIO interview (A2/1-2):
12. 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 asked about whether I was aware of anyone in Perth doing people smuggling, who was responsible for the boat that sank, if I knew anyone who was involved with the boat that sank.
13. 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.
The Applicant gave the following evidence that he did not know that his father would be trying to come to Australia on a people smuggling vessel (A1/2):
17. My dad 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 because my mother called me and told me.
18. One or two days after her first call, my mother called me again and told me my father was picked up by another boat and taken to hospital in Indonesia. I don’t remember the date but this was before the ASIO interview.
…
20. After the ASIO interview (first one) I asked my mother how my father got on the boat, why he tried to come to Australia, who helped him. She told me the smugglers name was [first name omitted] but she did not know the last name. I did not know this name when I went to the first ASIO interview.
21. I asked my mother why my father wanted to come to Australia. I told my mother it is dangerous to come on a boat. My mother told me that my father didn’t tell her he was going to go on a boat or why he was trying to come to Australia. I did not speak to my father about this. I have no idea whether my father was interviewed by anyone.
22. 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.
The Applicant continued to explain in his statutory declaration how he felt bad that he did not tell ASIO about his father being on the boat (A1/2-3):
23. 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.
24. I emailed ASIO and told them I wanted to meet them again. I think I had the contact details from the interview. I have not used that email address for a long time and do not know what the password is.
25. After that, ASIO replied to me and organised another interview. In that interview I told them that I knew my father was on the boat that sank, that my mother had told me he was on the boat, but because of fear and panic I said I did not know anyone on the boat. I also told them the smugglers 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 because I had no new information apart from what my mother told me.
26. The reason that I asked for the second interview was so that I could tell the truth.
27. 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. I tried to do the right thing and tell ASIO the truth but I am still being punished.
28. 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.
The Applicant’s evidence that he requested the Second interview himself is corroborated by the correspondence between the Applicant and the Department, with the relevant emails showing that the Applicant requested to meet with ASIO a second time (A2/47; R4). The QSA, which is an undated and unsigned document titled “Statement of Grounds” on ASIO letterhead, at paragraph [10], provides further corroboration of the Applicant’s evidence. Specifically, the QSA document states that in the First interview the Applicant denied knowing anyone onboard the vessel, but that he retracted this in his Second interview, confirming that his father was on the vessel, but that he “did not wish to say this at first interview” (T23/231). This is consistent with the Applicant’s evidence outlined above. The Tribunal accepts that the Applicant requested this Second interview because he felt bad about not telling the truth about his father being on the boat, and that he wanted to correct the record. The Applicant’s voluntary disclosure of his dishonesty, in the Tribunal’s opinion, shows that the Applicant had the ability to distinguish right from wrong and to behave in an ethical manner.
In the QSA it was stated that the Applicant was “involved in facilitating the passage of his father and another individual to Australia” onboard a people smuggling vessel (T23/231, [10]). Further, it was stated that the Applicant was “dishonest during his SAIs [security assessment interviews] regarding his knowledge of, and involvement in, people-smuggling activities and in relation to his people-smuggling associations” (T23/231, [11]). There was no evidence stated in support of these conclusion other than the two ASIO interviews with the Applicant on 4 February 2014 and 24 March 2014 being noted under the heading, “intelligence sourcing”. It is therefore unclear whether ASIO had access to information that was not before the Tribunal.
Mr Papalia submitted, citing authorities including Leghaei v Director-General of Security (2007) 97 ALD 516 (Leghaei), that the Tribunal should recognise the expertise of ASIO, that ASIO had access to all relevant materials and that the Tribunal should therefore give significant weight to ASIO’s assessment (R1, paragraph [45]-[46]). Mr Papalia further submitted that the Tribunal should give weight to the QSA because it remains unchallenged by the Applicant (R1, paragraph [46]). If the Security Appeals Division of the Tribunal had reviewed the QSA, the Tribunal would have had access to all relevant (including classified) materials and would have been able to rigorously test those materials (BLBS and Director-General of Security [2013] AATA 820 (BLBS) at [34]).

As noted above, the QSA document was unsigned and undated. Further, the Applicant’s evidence in his statutory declaration was that (A2/3):
29. 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 3:30pm or 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. My English was not good and I was very busy at work.
30. A few friends read the ASIO report for me and told me there was no problem – said it was all clear and there was no issue with the report. I did not ask an interpreter to explain. My agent also said the report was not bad and we would get a positive decision in a few months, and so I did not think we needed to appeal.
31. 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. My agent said the time period was over and we can’t do an extension of time.
An email from the Department (referred to above at paragraph [20]) confirms that the Applicant was not handed the QSA until 26 September 2017, some three years after his interviews with ASIO. Although it appears he may have been given a notice of his review rights at that time which included a statement that he had 28 days to seek review of the decision (T23/233), the Tribunal accepts the Applicant’s evidence that he did not seek review because he believed that ASIO’s security assessment was not adverse to his citizenship application. The Tribunal accepts that the Applicant’s English language skills were poor, and that he relied on others to interpret the document for him. This belief is consistent with ASIO’s conclusion that the Applicant “is not directly or indirectly a risk to security, and that it would be consistent with the requirements of security to approve [the Applicant] becoming an Australian citizen” (T23/231). Nevertheless, the Tribunal accepts that although there are plausible reasons as to why the Applicant did not seek to challenge the security assessment, it nevertheless remains unchallenged.
Accordingly, the Tribunal agrees in accordance with the authorities outlined in Leghaei at [56]-[61] and [65], that the views of ASIO should generally be accepted and given weight. The exception is where the Tribunal exercises jurisdiction in the Security Appeals Division. As the Tribunal stated in BLBS at [31], “[i]f…the Tribunal agreed to defer to the opinions, findings and assessments of the staff of the Organisation whose decisions it is charged with reviewing, the Tribunal’s function would be devalued and its credibility could not be maintained”.
However, over six years have passed since the Applicant was interviewed by ASIO and he has never been convicted or charged with any people smuggling offences (or any other offences). Additionally, no other evidence has subsequently come to light to suggest that the Applicant has ever been involved in people smuggling. This, in the Tribunal’s view, somewhat diminishes the weight that should be afforded to ASIO’s findings. So too does the Applicant’s general good conduct to date. Shortly after his arrival in Australia the Applicant commenced employment and has been a productive and responsible member of the community who also has done volunteer work for the last 12 years.
Accordingly, and with the benefit of being able to consider evidence of the Applicant’s conduct and contributions to the community up to the date of this decision, the Tribunal does not afford any weight to the adverse statements that the Applicant was “facilitating” people smuggling or that he was dishonest about his involvement in, and knowledge of, people smuggling activities. Given the passage of time since the Applicant was interviewed by ASIO, and there being no other evidence in support of the Applicant engaging in any people smuggling or any other unlawful activities, the adverse statements should now be viewed in that light. Further, it is the Tribunal’s view that the Applicant’s declaration on his citizenship application that he had not been involved in any activity, or been convicted of any offence, relating to the illegal movement of people, must also be viewed with the benefit of hindsight. Consequently, the Tribunal does not draw any adverse inference against the Applicant from this declaration.
CONCLUSION
In summary, the Tribunal finds that the Applicant is a hard-working member of the Australian community who has made positive contributions through his employment and community work. He is a law-abiding member of the community who has respect for Australian laws. He has never been charged with or convicted of any people smuggling offences. His only conviction is for the Traffic Offence in 2012 and he has not been charged with or convicted of any other offence since that time.
The Tribunal is satisfied that, at the time of its decision, the Applicant is a person with enduring moral qualities who will uphold the laws of Australia. The Tribunal finds that the Applicant is of good character for the purpose of s 21(2)(h) of the Citizenship Act.
DECISION
The Reviewable Decision is set aside and is remitted to the Department for reconsideration with the direction that the Applicant is of good character and therefore satisfies s 21(2)(h) of the Citizenship Act.

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..........[Sgd]..............................................................
Associate
Dated: 2 December 2020

Date of hearing: 20 October 2020

Representative for the Applicant: Ms A Graziotti, Estrin Saul Lawyers

Representative for the Respondent: Mr J Papalia, Australian Government Solicitor

[2020] AATA 4849

2 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Appeal

Statutory Construction

Jurisdiction

Date of hearing:	20 October 2020
Representative for the Applicant:	Ms A Graziotti, Estrin Saul Lawyers
Representative for the Respondent:	Mr J Papalia, Australian Government Solicitor