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

Wang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 4709 (18 November 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1005
Re:Ya-Yu Wang
APPLICANT

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

Decision
Tribunal:L M Gallagher
Date:18 November 2022
Place:Perth

The decision of a delegate of the Respondent dated 2 February 2021, to refuse to grant the Applicant’s application for citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) is affirmed.
.........[Sgd]...............................................................
L M Gallagher
Catchwords
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied applicant was of good character – 36-year-old citizen of Taiwan - unlawful assault – spent conviction - reviewable decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Criminal Code Act 1913 (WA)
Sentencing Act 1995 (WA)
Cases
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
LSNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3785
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Home Affairs v G and Another [2019] FCAFC 79
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Secondary Materials
Australian Citizenship Policy (1 June 2016)
Revised Citizenship Procedural Instructions (1 January 2019)
REASONS FOR DECISION
L M Gallagher
18 November 2022
the application

The Applicant seeks review of a decision of a delegate of the Respondent dated 2 February 2021,[1] to refuse the Applicant’s application for citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) (the Reviewable Decision).
[1]R1, T11 pp 74-80.
The basis for the refusal was that the delegate was satisfied that at the time of the decision the Applicant was not of good character, for the purposes of s 21(2)(h) of the Act.
The application for review of the Reviewable Decision is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision under s 24 of the Act.
issue
The issue is whether the Tribunal is satisfied that the applicant is of good character for the purposes of s 21(2)(h) of the Act.
BACKGROUND
The Applicant claims to be a 36-year-old citizen of Taiwan (Taiwan).[2]
[2]R1, T4 pp 33, 35.
The Applicant first arrived in Australia on 31 January 2009 as the holder of a Working Holiday (Subclass 417) visa.[3]
[3]R1, T4 p 43; T11 p 74.
On 16 June 2015, the Applicant was subsequently granted a Permanent Partner (Class BS) (Subclass 801) visa.[4]
[4]R1, T11 p 74
Applicant’s offending history
On 15 August 2018, the Applicant was recorded to have been charged with “Unlawfully assault and thereby did bodily harm with circumstances of aggravation” for which she received a spent conviction and a fine of $5000 (the offence).[5] The Applicant pleaded guilty to the offence.
[5]R1, T9 p 63. The maximum penalty for the offence is imprisonment of 7 years: s 317(1) Criminal Code Act 1913 (WA).
The circumstances of the Applicant’s offence, as stated by the prosecution and the related sentencing remarks were recorded by the Magistrates Court of WA as follows:[6]
[6]R3 document 2, pp 61 to 62; p 69.
…on 24 June 2018, the accused was at her home address, [address], in company with her husband, the victim in this matter. The accused and the victim have been married since 2012. Around lunchtime, the accused and victim engaged in a heated argument over a personal matter. The conflict was a continuation of an aggressive argument between the couple the night before.
The accused became enraged and threw items of fruit at the victim, along with shoes. The accused has then physically attacked the accused, [sic] causing deep scratches to his chest, neck and shoulders with her fingernails, forcing the victim to restrain her by holding his arms. The accused then bit the victim of his left hand whilst he was restraining her, breaking the skin in the process. The victim then pushed the accused out of the house through the front door and closed it.
The victim went to the garage and was using his mobile phone, when the accused has picked up a baseball bat and hit the victim across the shoulder whilst his back was to her. The accused continued to strike the victim with the baseball bat who, whilst holding his left arm up to defend himself, was struck in the left forearm, causing pain and swelling to his wrist. The accused has also struck on the left thigh, causing him to fall to the ground.
The accused then went into the house, and the victim followed. The accused was still brandishing the baseball bat and also picked up a pair of scissors. The victim was able to take the scissors from her before she picked up a glass set of scales and smashed them on the floor. The victim went outside at this moment, and the accused followed her – followed, hitting once again in the thigh with the baseball bat.
At this point, the victim disarmed the accused and threw the bat into the rubbish bin. Police attended the address, arrested the accused, conveyed her to [the police station]. She was interviewed on video and made some admissions.
…
Suffice to say…this is a serious offence in terms of the facts. You could have been charged with perhaps a different charge, but I deal with it on the basis of the bodily harm charge that is before me…
I must acknowledge that was early – early guilty plea, and, of course, the obvious: you come to court with no prior record, and your references speak very highly of you. With that in mind, notwithstanding the seriousness of the offence, I’m prepared to grant a spent conviction order under section 45, taking the view that this is the sort of offence that could trouble you with your future applications concerning your real estate licence and with the relevant application.
With regard to sentencing, I am mindful to the penalties provided, as I’ve indicated, under section 317, a maximum of seven years imprisonment…In the end, I am prepared to accede to the submission made to me by counsel and impose a monetary penalty, which will be a significant monetary penalty to reflect personal and general deterrence and the seriousness of the offence.
Applicant’s claim history
On 16 July 2020, the Applicant applied for citizenship by conferral with the Department of Home Affairs (the Department).[7] The Applicant provided a number of documents in support of her application.[8]
[7]R1, T4 pp 8-30.
[8]R1, T4 pp 31-43.
In her application, the Applicant indicated that she had been convicted of an offence in Australia and gave the details “Family Violence Court, Aggravated Assault Occasioning Bodily Harm charge”.[9]
[9]R1, T4 p 23.
On 10 December 2020, the Department wrote to the Applicant inviting her to comment on adverse information before it relation to her application for citizenship lodged on 16 July 2020, namely the offence.[10]
[10]R1, T9
The Applicant responded to the Department’s invitation with a statutory declaration declared on 3 January 2021 with three annexures.[11] In the statutory declaration the Applicant declared that the offence was triggered by an argument relating to her wanting to stop her former partner from consuming illicit substances.[12]
[11]R1, T10.
[12]R1, T10 p 64 [3].
On 2 February 2021, the Respondent’s delegate made the Reviewable Decision.[13]
[13]R1, T11.
On 21 February 2021, the Applicant applied to the Tribunal seeking review of the Reviewable Decision.[14] In her application, the Applicant claimed that the Reviewable Decision was wrong, considering:[15]
I had been provided with opportunity to explain my offending as apart [sic] of [sic] citizenship application process. However, it appears that [sic] decision maker failed to understand the context of my conviction – i.e. I were [sic] the victim of prolonged “family violence” and that my conduct was out of character and caused by sever [sic] duress/ provocation.
I think that this refusal outcome occurred because there was insufficient information. I obtained a 2-year Family Violence Order against my ex-husband on 29 April 2020.
(Emphasis added).
[14]R1, T2.
[15]R1, T2 p 5.
LEGISLATIVE AND POLICY FRAMEWORK
The Preamble to the Act states that:
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.
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship.
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Section 21(2)(h) of the Act 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.’[16]
[16]Whether the Applicant is a person of good character at the time of the Minister’s decision on the application for citizenship is the only eligibility criterion in issue in these proceedings.
Further, s 24 of the 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).
Accordingly, under s 24(1A) of the Act, the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application’, that being the requirement of

s 21(2)(h) of the Act (see [19] above).
The meaning of good character
The term ‘good character’ is not defined in the Act. The Tribunal is however assisted by the Australian Citizenship Policy (1 June 2016) (the Policy) and the Revised Citizenship Procedural Instructions (1 January 2019) (the CPIs).[17]
[17]The Revised Citizenship Procedural Instructions were published on 1 January 2019 to support the function of the Australian Citizenship Act 2007 (Cth).
As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[18]
[18]G at [57]-[62].
‘Good character’ is defined in ch 10 of the Policy:[19]
[19]The Policy pp 136–7.
“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 …
The term “good character” is not defined in the Act. Therefore, the Federal Court (FC) and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
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.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (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 years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
The Policy further provides that an Applicant of good character would, among other things:
·     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:
·     providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
·     involvement in bogus marriage
·     concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
·     involvement in Centrelink or Australian Tax Office fraud
·     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.
(Emphasis added.)
Chapter 11 of the Policy provides the following guidance on the Tribunal task of weighing up the character decision:
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.
The CPIs set out a number of factors that may be taken into account when assessing whether an Applicant is of good character,[20] including the Applicant’s criminal history, as follows (CPI 15, Items 11 and 12):
[20]CPI 15, Item 11 states that the set of factors set out in this section that decision-makers may consider when assessing whether the applicant is of good character is “not exhaustive and it is provided only to assist decision-makers exercising powers consistently with statutory requirements. A decision maker should take into account all of the relevant facts of the case.”
The Australian community expects that persons in Australia will abide by Australian laws.
…
The current citizenship application…may also be checked for an acknowledgement of criminal convictions.
Decision-makers can only act on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct…
The necessity to act on the basis of the conviction is correct will apply regardless of whether the applicant maintains his or her innocence.
…
· If the applicant has committed an offence, was it a serious offence?[21]
[21]CPI 15 Item 14.1 states that “[t]here can be a long delay between offence and conviction…[i]n the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is now of good character.”
For example:
ocrimes of violence (such as murder, manslaughter, assault, sexual assault domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)
…
If [there were victims of the offence] were the victims children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant?
…
(Original emphasis and emphasis added.)

Regarding crimes of violence (including assault and domestic violence) being serious offences,[22] the Australian government, media, community generally and this Tribunal have indicated their view that any form of domestic violence is entirely unacceptable.
[22]See [27] above.
For example, in Mendoza and Minister for Immigration and Border Protection,[23] Senior Member Puplick stated:[24]
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time — in any place — in any circumstances — and whether manifest physically, emotionally or psychologically.
(Emphasis added).
[23][2018] AATA 686 (Mendoza).
[24]Mendoza [48].
In Nguyen and Minister for Immigration and Border Protection,[25] Senior Member Puplick emphasised the importance of Applicants being truthful:
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.
Citizenship cannot be awarded on the basis of false statements.
There are no excuses for making false statements in this regard.
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 [sic] to placing themselves in the hands of deceitful third parties.
(Emphasis added and footnotes omitted.)
[25][2018] AATA 1082 (Nguyen); [82]–[84].
The relevant authorities and the Policy make it clear that:
(a)a person can fail to establish that they are of good character even if they have not been convicted of any criminal offences;[26] and
(b)it has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character.[27]
[26]See for example, Chapter 11 of the Policy, at page 147 (extracted at [26] above) and decisions extracted at [19] and [20] above.
[27]For example, Beyan v Minister for Immigration and Border Protection [2015] AATA 256.
As to the state of satisfaction required for “good character”:[28]
[54] Section 21(2)(h) requires the Minister to form a judgment as to whether he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite…Second, the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion….
[55] The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character…
(Emphasis added.)
[28]BOY19 v Minister for Immigration and Border Protection [2019] FCA 574.
As to referee reports (that is, character references), the Policy states:[29]
… [they] can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, or 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.
(Emphasis added.)
[29]The Policy p 155.
evidence
The matter was heard in Perth on 9 December 2021. The Applicant was represented by

Ms Jessica Edis of Putt Legal. The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers. Both appeared in person.
The Tribunal received the following evidence:
(a)Applicant's Statement of Facts, Issues & Contentions dated 13 September 2021 (A1);
(b)Applicant's Bundle of Documents consisting of an index and documents A1 - A27, filed 11 June 2021 (A2);
(c)Applicant's Supplementary Bundle of Documents consisting of AS1-AS5, filed on 13 September 2021 (A3);
(d)Respondent’s Section 37 T-Documents (T1-T13), filed 30 March 2021 (R1);
(e)Respondent's Statement of Facts, Issues and Contentions, filed on 18 October 2021 (R2); and
(f)Respondent's Tender Bundle filed 18 October 2021 (documents 1-4) and Respondent's Hearing Certificate filed 20 September 2021 (R3).
The Tribunal heard oral evidence from the Applicant with the assistance of Jiping Zhao, Mandarin interpreter. The Applicant was the sole witness at the hearing.
The Tribunal has also taken into account the letters of support, including:
(a)Letters from Mr Thuyasithu, Psychologist (Mr Thuyasithu), dated 14 August 2018 and 27 May 2021;[30]
(b)Letter from Yanyan WENG, dated 10 August 2018;[31]
(c)a statutory declaration from Su-Ju LIN dated 11 September 2021[32];
(d)a statutory declaration from Alice Chi-Yin YEH dated 13 September 2021[33]; and
(e)a statutory declaration from Emma Wen-Hui WU dated 9 September 2021.[34]
[30]R1, T10 p 66; A2 (document A2), pp 4-9.
[31]R1, T10 pp 67-68.
[32]A3, document AS1.
[33]A3, document AS2.
[34]A3, document AS3.
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.
Applicant’s evidence
The Applicant gave oral evidence and was cross-examined. The Applicant also provided a statutory declaration prior to hearing.[35]
[35]Declared on 8 June 2021 (A2, document A1).
The Applicant accepted that:
(a)On 28 May 2013, police attended the apartment she shared with her ex-husband (at his request); following an argument, she had become angry and started throwing property around their apartment.[36]
(b)On 12 January 2017, police attended at the request of her ex-husband following a verbal argument.[37]
(c)On 26 March 2017, police attended at her request following her report that her ex-husband had assaulted her and locked her out of the house. The Applicant’s ex-husband had claimed the Applicant had attacked him and threatened his life.[38]
(d)The events of 24 June 2018 as recorded as in the sentencing remarks are largely accurate, including that she hit her ex-husband with a baseball bat.[39]
[36]Transcript pp 12-13; R3, document 1 p 52.
[37]Transcript pp 13-14; R3, document 1 p 26.
[38]Transcript, pp 15-16; R3, document 1, p 14.
[39]Transcript, pp 23-26; p 32.
The Applicant said that she did often yell at her ex-husband during their relationship.[40]
[40]Transcript, p 14 [35]-[40].
When it was put to her that records showed that on 24 September 2019, she had told Mr Thuyasithu, her psychologist, that it would be acceptable in Taiwan to hit your husband with a baseball bat, the Applicant said that she had never told him that.[41]
[41]Transcript, p 26; A3; AS4, pp 6, 14.
consideration
The issue for review by the Tribunal is whether the Applicant was, as at 2 February 2021,

of good character for the purposes of s 21(2)(h) of the Act.
Whether the Tribunal is satisfied that the Applicant is of good character
The Applicant
The Applicant made the following submissions in support of her claim that the entirety of the circumstances and her qualities demonstrate she is of good character for present purposes:[42]
(a)The Applicant’s offending conduct must be viewed in the immediate context of the incident itself and the nature of her long-term relationship with her ex-husband that preceded the offence.[43]
(b)On the day of the offence, the Applicant engaged in reactive aggression, having been at the receiving end of sustained family violence.[44]
(c)The Applicant’s co-operation with the police and authorities, her early guilty plea, her transparency with the Department and her express acknowledgement of her wrongdoing demonstrates she has taken responsibility for her behaviour.
(d)The Applicant has been living in Australia for 9 years. The offence occurred over three years ago, and the Applicant has not reoffended.
(e)The Applicant’s offending conduct was a “one-off” and her spent conviction indicates she is unlikely to comment such an offence again.[45] Further, the Applicant’s risk of reoffending is negligible given the specific context of her offending.
(f)The Applicant has divorced her ex-husband and continues to attend psychology sessions. The psychologist’s report is clear that the Applicant has moved on and is doing well.[46]
(g)The Applicant has contributed positively to the community through her employment, which she has maintained despite personal challenges and a limited support network.
[42]A1 [44]-[50], [52]-[54].
[43]See also Transcript p 8 [5]-[10]. At hearing, the Applicant submitted that the Applicant has never had a police order, or a restraining order made against her and that any orders have always been made against her ex-husband (Transcript p 49 [15]).
[44]See also Transcript p 6 [30]-[45]; p 49 [40]-[45].
[45]Referring to s 45(1) of the Sentencing Act 1995 (WA). See Transcript p 48 [10]-[15].
[46]Transcript p 50 [35]. See also, Mr Thuyasithu’s report dated 25 May 2021 at A2, document A2.
The Respondent
The Respondent’s position is that the Applicant is not of good character as required by s 21(2)(h) of the Act and that the Tribunal should affirm the Reviewable Decision, for the following reasons:
(a)The Applicant’s offending was serious;
(b)Relevant events following the offending reflect poorly upon the Applicant’s character;[47] and
(c)The Applicant’s positive contributions do not offset her offending.
[47]Namely, that there were events following the offending which reflect poorly upon the Applicant’s character.
The Respondent’s submissions in support of its position in the present matter are as follows:[48]
[48]R2 [15]-[22]; [24].
Seriousness of the offending
(a)The offence is properly characterised as serious for the purposes of CPI15 as it involved a protracted and physically violent dispute, which culminated in the Applicant repeatedly hitting her husband with a baseball bat.[49] Additionally, $5,000 is a significant fine and the offence carries a severe maximum penalty.
[49]See para [9] above in this regard.
(b)The fact that the Applicant’s conviction is spent does not prevent the Tribunal from placing weight on the offence or from engaging in its own assessment of the seriousness of the underlying conduct.[50]
[50]Citing LSNZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3785.
(c)Considered in isolation, the Applicant’s offending is a sufficient basis for the Tribunal to find itself unable to be affirmatively satisfied that the Applicant is of good character.
(d)The Applicant seeks to explain the offence as arising in the context of her having been subjected to years of abuse by her ex-husband prior to the incident in June 2018. However, this claim is not entirely borne out on the evidence, the Applicant not having raised it at the time of sentencing.[51]
[51]At hearing, the Applicant said that prior to sentencing, her solicitor never asked her about these historical matters (Transcript, pp 25-26).
(e)The Applicant has attempted to downplay the seriousness of her offending conduct and attributing blame to her ex-husband. The Tribunal should prefer the version of events to which the Applicant pled guilty.[52]
[52]Citing HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [180].
Events following the Applicant’s offending
(f)Whilst the Applicant has expressed some remorse for her offending,[53] and there is evidence she had engaged in psychotherapy from 14 March 2017 to 9 March 2021, this must be viewed in the context of her comments to Mr Thuyasithu that:
(i)Her lawyer suggested she do an anger management course before the Court directed her to as this would help her case.[54] This suggests the Applicant was not personally remorseful.
(ii)She now realised using the baseball bat was wrong, and whilst it would have been acceptable in Taiwan, it was not acceptable in Australia.[55] This does not demonstrate the Applicant appreciates her actions were objectively wrong.
Applicant’s positive contributions
(g)The Applicant claims to have studied and worked since arriving in Australia. These are positive contributions but are unremarkable relative to the contributions made by the general population. They should not offset the damage done to the Tribunal’s perception of the Applicant’s character by her criminal offending and the June 2018 incident.
[53]See R1, T10 pp 64-65 and A1.
[54]See R3, document 3 p 74.
[55]See R3, document 3 p 76.
The Applicant committed a serious offence[56] within two years of applying for citizenship.
[56]That the offence was serious is agreed by the parties (see for eg, A1 [44]), the sentencing judge and the Tribunal.
While the Applicant has only been convicted on one violent offence, the police records and the Applicant’s evidence make clear that there is an extended history of a two-way aggressive and toxic relationship between the Applicant and her ex-husband. While the Tribunal accepts the Applicant’s remorse is genuine, the weight that the Tribunal places on it is somewhat diminished in the broader marital context of the offending. That context being that there was a two-way toxicity and physically to their relationship for several years.
Similarly, while the Tribunal accepts the facts of the offending as recorded in the sentencing remarks, the fact of the conviction does not stand alone and must be considered along with the facts surrounding the offence.
Notwithstanding the Tribunal having taken this view, it does however consider that the Applicant’s offending conduct, is, of itself conduct that renders it in a state on non-satisfaction with respect to the issue of whether the Applicant is of good character.
That is, while the Tribunal accepts the Applicant’s evidence that prior to her offending conduct in 2018, she had been subject to years of abuse in her marital relationship and the abuse at her own hands was to some extent reactive, and triggered by her anger and fear, the question of her ex-husband’s character and moral qualities is not before the Tribunal.
What remains for the Tribunal to consider is whether, notwithstanding that the Applicant committed the offence, there are any mitigating factors such that it can be satisfied the Applicant is of good character.
The Tribunal has considered the emergency calls made relating to the incident precipitating the offence, which indicate the first call was made by the Applicant’s ex-husband’s landlord, the second by the Applicant’s ex-husband (who by that time had been hit and cut by the Applicant) and then the third call by the Applicant (when she was locked outside of the house).[57] This serves to further demonstrate the context in which the offending conduct took place and stands alongside the Applicant’s submission that her offending conduct was reactive.[58]
[57]See A3 document AS5.
[58]See, for example, Transcript p 57 [10]-[15].
The Tribunal has considered the Respondent’s view at hearing that there has not been a sufficient passage of time where the Applicant has been positively contributing to the society to outweigh her offending[59] along with the Applicant’s view that while, ordinarily, a much longer lapse of time would be necessary to demonstrate enduring moral qualities, the Applicant’s offending was circumstantial, a one-off incident and she will never see her ex-husband again.[60]
[59]Transcript p 54 [40]-[45].
[60]Transcript p 56 [10]-[25].
The Tribunal has also taken into consideration Mr Thuyasithu’s positive observations of the Applicant regarding her life plans and her having finalised her divorce with her ex-husband.[61]
[61]A2 document 2; Transcript p 50.
The Tribunal considers that these matters, considered together and in the broader context of the application, do not serve to mitigate the Applicant’s offending. In taking this view, the Tribunal finds that it cannot be satisfied that the Applicant is of good character for present purposes.
Character references
The Applicant has provided a number of character references from Mr Thuyasithu and from her friends.
The Applicant contends that her character references attest to the fact and nature of her offending being contrary to her usual disposition and character.[62]
[62]A1 [51].
The Respondent contends that the Applicant’s character references do not compel a finding that the Applicant is of good character.[63] The Respondent gives the reason that the references are written by people who could be expected to support the Applicant, namely her friends and her treating psychologist.[64] The Respondent also submits that limited weight should be placed on their views as to the Applicant’s character by reason of that lack of objectivity.[65]
[63]R2 [23].
[64]R2 [23].
[65]R2 [23].
The Tribunal has considered each of the available character references and notes that:
(a)None of them make any specific reference at all to the circumstances which resulted in the finding that the Applicant was not of good character[66]; and
(b)None of the referees were made available for cross-examination for hearing,
therefore, and in any event, all the evidence contained in these references more generally remains untested.
[66]Other than Mr Thuyasithu’s reports, where the facts of the Applicant’s offending are derived from her own self-reports.
In the circumstances, and referring to the Policy,[67] limited weight can be placed on these references.
[67]Extracted at [33] above.
conclusion

For the reasons outlined above, the Tribunal cannot be satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.
decision
The Reviewable Decision, being the decision of a delegate of the Respondent dated 2 February 2021 to refuse the Applicant’s application for citizenship by conferral, is affirmed.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

...........[Sgd]............................................................
Associate
Dated: 18 November 2022

Date of hearing: 9 December 2021

Representative for the Applicant: Ms Jessica Edis, Putt Legal

Representative for the Respondent: Mr A Burgess, Sparke Helmore Lawyers

[2022] AATA 4709

18 November 2022

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	9 December 2021
Representative for the Applicant:	Ms Jessica Edis, Putt Legal
Representative for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers