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

WWSV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 5296 (16 November 2021)
Division:GENERAL DIVISION
File Number(s): 2020/7910
Re:WWSV
APPLICANT

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

DECISION
Tribunal:L M Gallagher, Member
Date:16 November 2021
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 30 November 2020 to refuse the Applicant’s application for citizenship by conferral, is affirmed.
........[Sgd]................................................................
L M Gallagher, Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied applicant was of good character – wilfully omitting criminal history – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 24
CASES
Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561
Beyan v Minister for Immigration and Border Protection [2015] AATA 256
Fang and Minister for Immigration and Border Protection [2018] AATA 3686
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Home Affairs v Sharma [2019] SCA 597
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy (1 June 2016)
Department of Home Affairs, Revised Citizenship Procedural Instructions (1 January 2019, amended 26 February 2021) – CPI 15, item 3 (formerly item 4.7)
REASONS FOR DECISION
L M Gallagher, Member
16 November 2021
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent, dated 30 November 2020,[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, T9, pp 80–86.
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 Act.[2]
[2]R1, T9, p 82 and 86.
The Applicant’s 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.
BACKGROUND
The Applicant is a 51 year old citizen of the United Kingdom, who first arrived in Australia on 24 October 2001 as the holder of a Skilled-Independent (subclass 136) visa.[3] The Applicant currently holds a Resident Return (subclass 155) visa, which was granted on 4 January 2010.[4]
[3]R1, T9, p 80.
[4]R1, T9, p 80.
Applicant’s offending history
The Applicant has been convicted of the following offences:[5]
(a)Unlawfully assault and thereby did bodily harm with circumstances of aggravation on 9 March 2010 for which he received a 6 month community based order (spent conviction); and
(b)Exceed speed limit on 27 February 2017, for which he was fined $400.[6]
[5]R1, T7 pp 55–56.
[6]See [48] below summarising the Applicant’s additional traffic offences.
The circumstances of the Applicant’s offence for which he was convicted on 9 March 2010 were recorded by the WA Police (WAPOL) as follows:[7]
[7]R2, ST1, p 3.
The accused and the victim are in a family domestic relationship as husband and wife.
On the evening of Sunday, February 28, 2010, the accused was at home with family and friends celebrating his son’s 14^th birthday.
Around 10pm the accused’s 16 year old daughter and 14 year old son began to argue. The accused became annoyed at this, lost his temper and began shouting at his children. During this the accused has hit himself in the head with an empty stubbie causing a laceration on the top of his head.
Around 10.30pm the last of the guests left, the accused remained in the patio area shouting at his children demanding they go to bed while his wife saw the guests off.
After the guests had left the accused’s wife tried to go out to the patio area.

The accused was standing outside the door pulling the sliding door shut to prevent his wife going outside
, his wife was trying to open the door at the same time, as this was happening they were abusing each other.
The accused then let go of the door and head butted his wife causing a laceration to the bridge of his wife’s nose which bled profusely.
Two of the couples [sic] children were present and witnessed the assault and one immediately summoned police.
Police arrived very soon after and the accused was arrested and conveyed to Rockingham Police station where the present charge was preferred…
(Emphasis added).
Applicant’s claim history
On 12 February 2020, the Applicant applied for citizenship by conferral with the Department of Home Affairs (the Department).[8] The Applicant provided a number of documents in support of his application.[9]
[8]R1, T4, pp 13–29.
[9]R1, T4, pp 30–41.
On 9 October 2020, the Department wrote to the Applicant inviting him to comment on adverse information before it relating to his application for citizenship lodged on 12 February 2020, [10] namely:
(a)the offences listed in his nationally coordinated criminal history check report (Check Results Report);[11] and
(b)the Citizenship – Character summary sheet – which is a summary of the factors that may be relevant to consideration of the good character requirement.
[10]R1, T7.
[11]R1, T7, pp 55–56.
On 2 November 2020, the Applicant responded to the Department’s invitation with various documents,[12] including his statutory declaration declared on 14 October 2020, which declared:[13]
I wasn’t aware that I had to disclose a spent conviction as this occurred over ten years ago (at the time I was 40 years old) and was totally out of character. I am ashamed that it did happen; it was a one off event and has not occurred since.
With the traffic conviction I received over three years ago (I was flashed on the freeway on the 23^rd August 2016 by a speed camera, which I chose to appeal) the court Judge saw fit to award a reduction in both point and fine penalties.
I verbally disclosed my court appearance for the speeding fine to staff at your offices on Wellington Street Perth at the time I participated in my formal interview, before I sat the test. I wasn’t instructed (or advised) to put these details in writing until the present. It was by no means a deliberate attempt to deceive anyone for personal gain.
I have been here since 2001 and have worked as a carpenter for over 30 years. I have been with my wife for over 27 years; we have five children and I live at the above address with my family. I have worked as a full time carpenter since arriving in Australia.
I have enclosed character references from three people who will show that I am of good standing, and I have enclosed a screenshot from my driver’s demerit points enquiry. This clearly shows that I haven’t had any more driving offences since.
I strongly feel that my application for my Citizenship should be approved. It might be worth noting that I passed the test within five minutes, with a pass rate of 95%.
(Emphasis added).
[12]R1, T8.
[13]R1, T8, pp 57–58.
On 30 November 2020, a delegate of the Respondent made the Reviewable Decision.[14]
[14]R1, T9.
On 1 December 2020, the Applicant applied to the Tribunal seeking review of the Reviewable Decision.[15]
[15]R1, T2.
LEGISLATIVE AND POLICY FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Section 24(1) of the Act states that ‘[i]f a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen’. Where a person is not eligible to become an Australian citizen under s 21(2), the Minister must not approve the person becoming an Australian citizen.[16]
[16]The Act s 24(1A).
A person is eligible to become an Australian citizen if the Minister is satisfied that he or she meets the requirements in s 21(2) of the Act, as follows:
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
(Emphasis added.)
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.
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). The CPIs were amended with effect from 26 February 2021.
As established in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[18]
[18]Drake, 645.
‘Good character’ is defined in ch 11 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 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.
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 behaviour in his or her interactions with government officials and an 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. This includes providing correct information when seeking a government benefit or service.
It is relevant to consider whether the applicant has been honest in dealings with the Department. Decision-makers should consider all of the applicant’s interactions with the Department, including visa and citizenship applications.
…
If the [A]pplicant has knowingly presented incorrect information or a bogus document, this may reflect on the person’s character. If the applicant presents the incorrect information or bogus document unknowingly, there would be no ground for character concern.
…
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)
…
· Minor offences may include:
…
osome traffic offences that have been included in a criminal record. An ‘on the spot’ fine would usually have little weight in a character assessment, unless the applicant has a history of such fines. This disregard for the law may be relevant to the assessment of character.
…
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?
…
A pattern of behaviour, even of repeated minor offences over an extended period, shows a disregard for the law and may support a finding that the applicant is not of good character. Decision-makers should consider whether the offending has become more serious over time.
(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.

For example, in Mendoza and Minister for Immigration and Border Protection [2018] AATA 686, Senior Member Puplick stated:[23]
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).
[22]See [21] above.
[23]At [48].
In Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082 (Nguyen) at [82]–[84], 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.)
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 about their identity:
…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
(Emphasis added.)
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;[24] and
(b)it has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character.[25]
[24]See for example, Chapter 11 of the Policy, at page 147 (extracted at [15] above) and decisions extracted at [19] and [20] above.
[25]For example, Beyan v Minister for Immigration and Border Protection [2015] AATA 256.
As to referee reports (that is, character references), the Policy states:[26]
… [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.)
[26]The Policy p 155.
ISSUE
The issue for review by the Tribunal is whether the Tribunal is satisfied as to the Applicant’s good character for the purposes of s 21(2)(h) of the Act.
EVIDENCE
The matter was heard in Perth on 30 September 2021, with the parties appearing at the hearing in person. The Applicant was self-represented. The Respondent was represented by Ms D Jones-Bolla of Sparke Helmore Lawyers.
The Applicant gave oral evidence at the hearing[27] and was cross-examined.
[27]The Applicant did not file a witness statement in the present application, however the Tribunal takes into consideration the Applicant’s earlier statutory declaration dated 14 October 2020 (R1, T8; see [9] above).
The Tribunal admitted the following documents into evidence at hearing:
·Applicant’s bundle of documents filed on 2 February 2021 (together, A1), including:
(a)ALRC Report on Spent Convictions;
(b)GTC Lawyers Guidance on Spent Convictions;
(c)Magistrates Court of WA – Spent Convictions;
(d)Prosecution Notice dated 1 March 2010; and
(e)ABC Article dated 20 January 2021 – Screenshots
·ABC Article dated 20 January 2021 (uploaded by Associate) (A2);
·Applicant’s bundle of documents filed on 24 February 2021 (together, A3), including:
(a)Bundle of emails to City of Rockingham;
(b)Guardian article dated 23 February 2021;
(c)Statutory declaration of Mr Sergio Del Borello, Psychologist, declared on 21 January 2021;
(d)Statement of Ms Michele Sharpe, Social Worker, dated 13 February 2021; and
(e)Statutory declaration of Mr Michael Sutton declared on 19 February 2021
·Applicant’s bundle of documents filed on 9 September 2021 (together, A4), including:
(a)Screenshots of AFP Guidance on Spent Convictions;
(b)Screenshot of telephone call to WAPOL dated 7 August 2021 (to non-emergency number);
(c)Record of Demerits Enquiry dated 28 July 2021;
(d)Screenshot of conversation with local MP regarding hoon behaviour;
(e)Screenshot of traffic complaint to WAPOL dated 5 December 2012;
(f)Unidentified guidance regarding Spent Convictions;
(g)Further unidentified guidance regarding Spent Convictions; and
(h)Guidance from Visa Solutions website on gaining citizenship with spent convictions
·Section 37 T-documents (T1–T11), comprising 121 pages (R1);
·Supplementary T-documents (ST1–ST4), comprising 58 pages (R2); and
·Respondent’s SFIC, dated 27 April 2021 (R3).
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Applicant’s evidence
At hearing, the Applicant said he did not declare his spent conviction in his application for citizenship[28] because he presumed he had a right of non-disclosure in relation to it.[29] The Applicant also said that he wasn’t aware he had actually ticked “No” and that he had ticked the wrong box by mistake.[30]
[28]See R1, T4, p 27. The Applicant answered “No” to question 39(a), being “Have you been convicted of, or found guilty of, ANY offences or overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?
[29]Transcript, p 16 [30].
[30]Transcript, p 17 [5]–[15]; p 46 [5]–[10] and [20]–[25]. See fn 28 above.
The Applicant answered “No” to question 39(a), being “Have you been convicted of, or found guilty of, ANY offences or overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?
The Applicant said that after lodging his application for citizenship he went on to seek general information about spent convictions[31] to support his view that he did not need to disclose his spent conviction in that form.[32]
[31]See documents within A1 to A4. Refer to [30] above.
[32]Transcript, p 47.
During cross-examination, when asked if he had committed multiple traffic offences,[33] the Applicant said there were “a few but not multiple” offences because there had been long periods of time in between those offences.[34]
[33]Namely, on seven occasions between 26 July 2002 and 25 August 2016, with an eight–year period of no traffic offending between 2004 and 2012 (R2, ST3, p 54). See also [48].
[34]Transcript, p 20 [25]–[30].
Ms Jones-Bolla then asked the Applicant a series of questions regarding his violent conduct, which extracted the following evidence:
(a)As to his Unlawfully assault and thereby did bodily harm with circumstances of aggravation conviction in 2010,[35] he could not recall whether two of his children were present at the time he assaulted his wife.[36] However the Applicant accepted it must have been the case if it was recorded by WAPOL as such.[37]
[35]See [5(a)[ and [6] above.
[36]Transcript, p 22 [25]–[40]. See R2, ST1, p3.
[37]Transcript, p 22 [25]–[40].
(b)His assertion in his statutory declaration that the conduct exhibited in assaulting his wife in 2010 “was a one off event and has not occurred since”[38] stands contrary to an additional incident of violent conduct in 2004.[39]
[38]R1, T8, p 57.
[39]Transcript, p 23 [35]–[45]; p 24 [5]. See R2, ST1, p 22.
(c)On 15 April 2004, the Applicant headbutted a work mate at Tom Price, outside of working hours.[40] The Applicant also said in the context of this incident that there are two sides to every story, and he was never given the opportunity to present his side of the story.[41]
[40]Transcript, p 24 [25]–[30], p32 [30]–[40]; p 33 [30]–[35]. See R2, ST1, p 22.
[41]Transcript, p 32 [15].
(d)The WAPOL incident report, which recorded that on 11 December 2006 he and his wife were arguing and he punched her twice and made threats against her[42] is not what occurred.[43]
[42]See R2, ST1, p 21.
[43]Transcript, p 24 [40].
(e)As to the WAPOL record of his children having been present at the incident on 11 December 2006,[44] the Applicant said the children were in the house, but not present in the location of the incident.[45] The Applicant also said he did not hit his wife as recorded.[46]
[44]See R2, ST1, p 21.
[45]Transcript, p 24 [45]; p 25 [5].
[46]Transcript, p 25 [10]–[15].
(f)As to the WAPOL incident report dated 13 October 2009,[47] the Applicant did not recall the incident and, when asked if he agreed that he had a verbal disagreement with his daughter on that date, stated:
Well, everybody has a disagreement with the children at some point.
(g)When asked whether he had, in the past, become physical when angry, the Applicant said:[48]
No. Well, the evidence suggests that some – that once or twice that there may have been.
(h)As to the police record of his having headbutted his son and punched him in the face on 22 August 2010,[49] the Applicant said he did not do this and rather, he had given his son a “clip round the ear.”[50]
(i)Regarding the police record of his having thrown a three-quarter-full bottle at his daughter on 6 September 2010[51], the Applicant said he did not do this[52] and that he actually did not recall this incident.[53]
[47]See R2, ST1, p 20.
[48]Transcript, p 25 [30].
[49]R1, ST1, p 18.
[50]Transcript, p 25 [40]. See R1, ST1, p 19.
[51]R1, ST1, p 17.
[52]Transcript, p 25 [45].
[53]Transcript, p 26 [5].
When taken to his evidence that he did not recall the specifics of various past recorded incidents, or aspects of those incidents, that had been put to him,[54] the following exchange transpired:[55]
[54]See [34] above.
[55]Transcript, p 26 [45]; p 27 [5]–[10].
MS JONES-BOLLA:   Sorry, you’ve told this tribunal that you don’t recall the offence in respect of 6 September 2010 and you don’t recall the offence in respect of 30 October 2009. Is it correct that you also don’t recall the offence in August 2010 in complete detail?
APPLICANT:              I didn’t say that.
MS JONES BOLLA:   Well, I’m asking you now because the form – the incident report states that you head-butted your son and you punched him in the face, and you’ve told this tribunal it was a clip around the ear?
APPLICANT:              Yes.
MS JONES-BOLLA:   It's not exactly the same thing. Is it correct that you don’t recall the incident?
APPLICANT:              I do recall it. By looking through this I do recall because I’ve actually had the chance to read this through. I do recall the incident and I didn’t headbutt him or I didn’t do what was alleged in that report. I gave him a clip around the ear but that was it.
MS JONES-BOLLA:   What does that actually mean, a clip around the ear? Is that with an open palm or a closed fist?
APPLICANT:              An open palm.
When the Tribunal sought clarification of the Applicant’s position regarding these recorded incidents, the Applicant maintained his position that these events occurred through no fault of his own:[56]
MEMBER:All right. I think we’ve been through those various incidences which mostly you say either didn’t occur, but if they did occur that you had an explanation for them which seems to rid you of any fault, it seems, that these were circumstances, you were just very unfortunate, is what I’m hearing. Is that correct, all of them?
APPLICANT: Yes, we did have a lot of ‑ ‑ ‑
MEMBER:Because we’ve identified the specific one through Ms Jones‑Bolla’s questions, the ones that you couldn’t recall, and she’s listed those. Is it the other ones you’re saying they did occur but it was no fault of yours [?]
APPLICANT: Yes, that’s what I’m grasping at, yes.
[56]Transcript, p 33 [40]–[45]; p 34 [5].
When taken by the Tribunal to his statutory declaration and asked what meant by his “being ashamed that it did happen,”[57] the Applicant said that he was ashamed of “all of it” and that the was remorseful towards the people involved in the incidents.[58]
[57]See [9] above.
[58]Transcript, p34 [35]–[45]; p 35 [5]–[10].
As to what the Applicant claims to have learned through his efforts to rehabilitate,[59] notwithstanding his claims that his wife had provoked him in 2010, he said:[60]
[59]The Applicant relied on A3(c) and A3(d) in this regard. See Transcript, p 35 [10]–[35].
[60]Transcript, p 36 [5]; p38 [25]–[45], p39 [5], [35]–[45], p40 and p41 [5]–[40].
APPLICANT:   Well, what I’ve done is I’ve put procedures in place where I now, if the situation arises nine times out of 10 I leave my wife to deal with any issues regarding the children’s behaviour. We’ve got three younger children, a 21 year old, a 17 year old and an eight year old. We’ve had another child since.
…
APPLICANT:   …So by going to the psychologist and counselling prior to me being sentenced at the District Court where I pleaded guilty, that’s where I’ve made a change where none of the issues prior to 2010 I’ve actually carried on with, so I’ve actually changed my - the way, my total life around by showing that I’ve actually been remorseful and tried to do everything that I could possibly do to rectify that these incidents never happen again with any field of my community ‑ ‑ ‑
MEMBER:So you’re saying you feel that your strategies relate to going behind the anger issues that were underpinning what triggered some violent conduct on some occasions.
APPLICANT:   Yes.
MEMBER:… Is what you’re saying then in the future is that you’d have the ability to handle yourself if you were provoked.
APPLICANT: Yes.
MEMBER:Because what your evidence is, is in the past is at the times that you have, for want of a better phrase, lashed out physically or in angry way or violently, it’s because you were provoked.
APPLICANT:   Yes.
MEMBER:      Did your wife provoke you?
APPLICANT: Yes.
MEMBER:      Your wife provoked you.
APPLICANT: Yes.
…
MEMBER:……I’m just looking at these material facts. How did she provoke you, [Applicant]?
APPLICANT:   We were having an argument and I was actually closing the door to try and stop her from coming outside and having an argument, a physical argument with me.
MEMBER:      So is the provocative conduct that she was trying to shut a door?
APPLICANT:   I was trying to shut the door to try and ‑ ‑ ‑
MEMBER:      You were trying to shut the door.
APPLICANT:   I was actually closing the door to stop her from coming out onto ‑ ‑ ‑
MEMBER:      So you were outside.
APPLICANT:   Yes.
MEMBER:      She was ‑ ‑ ‑
APPLICANT:   Inside.
MEMBER:      Inside.
APPLICANT:   Pulling the door open to try and have an argument with me.
MEMBER:      So you were preventing her from entering the area.
APPLICANT:   To diffuse the situation.
MEMBER:      And that was her provoking you.
APPLICANT:   Yes.
MEMBER:      So because she was trying to go outside you head‑butted her.
APPLICANT:   No, that’s not the case.
…
MEMBER:She was trying to open the door. Someone was trying to get in, someone was trying to get out, and one didn’t want the other [to]. That was the provocative conduct, was it?
APPLICANT:   Yes, she was having a go at me, yes.
MEMBER:      So you head‑butted her because she was having a go at you.
APPLICANT:   I didn’t head‑butt her, I actually - the door ‑ ‑ ‑
MEMBER:      So you didn’t head‑butt her.
APPLICANT:   No, I didn’t say that, the door opened and as the door opened, because I had my face up against the glass, I actually struck her on the nose, not on purpose, not intentionally, but that’s what happened.
MEMBER:      So head‑butted here, you’re saying that’s incorrect.
APPLICANT:   Well, my head touched her nose, so if that’s what ‑ ‑ ‑
MEMBER:      Your head touched her nose.
APPLICANT:   Yes.
MEMBER:      You didn’t butt her nose, the police used the wrong words.
APPLICANT:   Yes, well, that’s ‑ ‑ ‑
MEMBER:So an incident occurred but not quite as recorded by the police...
APPLICANT:   M’mm.
MEMBER:      I’m sorry, I’m just waiting for your answer, [Applicant].
APPLICANT: Yes.
(Emphasis added).
CONSIDERATION
The issue for review by the Tribunal is whether the Applicant was, as at 12 February 2020,

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 his claim that he is of good character for present purposes:
(a)In some of the incidents reported by police involving his son, his son had a tendency to over-exaggerate.[61]
(b)As to the incident in Tom Price in 2004, he was acting in self-defence.[62]
(c)While he understands the Tribunal cannot go behind the findings and the content of statements prepared by WAPOL,[63] he feels it is unfair he was never given the opportunity by WAPOL to give his side of the story.[64]
[61]Transcript, p 53 [5]–[10].
[62]Transcript, p 54 [10]–[15].
[63]
[64]Transcript, p 54 [40].
The Respondent
Briefly, 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,[65] for the following reasons:[66]
(a)the Applicant’s criminal history;
(b)the Applicant’s subsequent actions, as documented in R2; and
(c)the Applicant’s failure to disclose that history on his application for citizenship by conferral.
[65]R3 [19], [37]; Transcript p 16 [5]; p 48 [45].
[66]Transcript, p 16 [5]–[15].

The Respondent’s submissions in support of its position in the present matter are as follows:
(a)The Applicant’s conviction for Unlawfully assault and thereby did bodily harm with circumstances of aggravation is serious despite the fact that the Applicant received a spent conviction and weighs heavily in favour of finding that he is not of good character for the purposes of s 21(2)(h) of the Act.[67]
(b)The seriousness of the Applicant’s conduct is aggravated by the evidence that the violent behaviour towards his wife was committed in the presence of their children.[68] Critically, this conduct demonstrates a flagrant disregard for the significantly adverse impacts that the exposure of children and other family members to domestic violence may have on their wellbeing.
(c)Whilst the Applicant has not been convicted of any further violence offences, the Applicant has otherwise been reported to have engaged in violent conduct or otherwise in conduct that would reasonably cause another to be severely apprehensive, fearful, alarmed or distressed about the Applicant’s behaviour towards the individual.[69] This includes:[70]
(i)On 15 April 2004, the Applicant had been with his workmates at a restaurant and once outside the Applicant confronted the complainant about ongoing work problems. The Applicant challenged the complainant to a fight and lunged at the complainant headbutting him across the bridge of the nose. The complainant was treated at hospital for injuries sustained and advised police that he did not wish for any further action to be taken.[71]
(ii)On 11 December 2006, the Applicant’s wife stated that she and the Applicant had a fight and he punched her twice and made threats against her. The Applicant’s wife refused to make any complaint or statement to police.[72]
(iii)On 13 October 2009, the Applicant’s daughter called police stating that the Applicant was trying to assault her (punching her in the head).[73]
(iv)On 22 August 2010, the family was in the car together and the Applicant’s son was hitting his sister and being distracting. He was told to stop and the fight continued for approximately 10 minutes. When they arrived home, the Applicant head butted his son, grabbed him and punched him in the face. The Applicant admitted to giving his son a “clip around the ears” and “striking out” at his son.[74]
(v)Between 6 September 2010 and 8 September 2010, the Applicant threw a ¾ full bottle at his daughter and subsequently rang the friends that his daughter had gone to stay with and was abusive to them.[75]
(vi)On 11 December 2011, the police were called as a manager of a team of enquiry officers reported that the person that they had been speaking to (the Applicant) was involved in a domestic violence incident and the caller heard a woman screaming in the background “don’t hit me.” The Applicant advised police that he had a verbal argument with his daughter. The Applicant’s daughter agreed to attend the police station for a welfare check but failed to attend.[76]
[67]R3 [21].
[68]R3 [24], citing R2, ST4.
[69]R3 [25], citing CPI 15 at (the then) Item 4.7. The Tribunal notes that Item 3 of the current CPIs states:
[70]R3 [25(a)] to [25(f)], inclusive.
[71]R2, ST1, p 22.
[72]R2, ST1, p 21.
[73]R2, ST1, p 20.
[74]R2, ST1, pp 18–19.
[75]R2, ST1, p 17.
[76]R2, ST1, p 23.
The Respondent contended that the mere fact that the Applicant has not been convicted of any further offences does not preclude the Tribunal from taking the Applicant’s conduct into account in considering whether or not the Applicant is of good character.[77] The Respondent also contended that his conduct and allegations[78] are all of a similar nature and the CPI provides non-exhaustive guidance as to the factors to be taken into account when assessing whether a person is of good character, including reference to a person’s general conduct, as distinct from criminal conduct.[79]
[77]R3 [26].
[78]See [25].
[79]R3 [26].
The Respondent also noted that the Applicant has not provided a statement relating to his offending or conduct.[80]
[80]R3 [27].
As to the Applicant’s evidence relating to his engagement with counselling and psychological therapy sessions,[81] the Respondent submitted that this evidence is insufficient to suggest the Applicant is now of good character in circumstances where:[82]
(a)Whilst the evidence confirms that the Applicant engaged in therapy sessions in 2010 and 2011 there is no information regarding the assistance provided, the matters canvassed through the sessions or any purported gains of the Applicant.
(b)The therapy sessions did not curb the allegations of violent behaviour committed by the Applicant during that period.
(c)Whilst the Applicant engaged in further counselling in 2018, 2020 and 2021, it was reported that those sessions related to “support in addressing his anxiety and depression due to a worker’s compensation claim which is still underway.”
(d)The opinions expressed in relation to the Applicant’s “previous anger issues” appear to be entirely based on the Applicant’s self-reporting and whilst reference is made to the “applicant assaulting his wife nearly eleven years ago”, no reference is made to the Applicant’s broader conduct.[83]
[81]See A3.
[82]R3 [28].
[83]Ibid.
As to the Applicant’s traffic offences,[84] the Respondent noted the following history:[85]
(a)In February 2003, driving in excess of the speed limit by between 10 and 19 kilometres per hour.
(b)In January 2004, driving in excess of the speed limit by 10 and 19 kilometres per hour.
(c)In November 2012, driving in excess of the speed limit by between 20 and 29 kilometres per hour.
(d)In March 2015, driving in excess of the speed limit by not more than 9 kilometres per hour.
(e)In August 2015, driving in excess of the speed limit by between 10 and 19 kilometres per hour.
(f)In August 2016, driving at a speed of 129 kilometres an hour in a 100 kilometre per hour zone.
[84]One of which giving rise to a criminal offence, namely speeding. See R2, ST3, p 54.
[85]R3 [29].
The Respondent submitted that the Applicant’s traffic records,[86] make plain that he has a consistent history of driving above the speed limit. This behaviour is particularly significant as it demonstrates a “theme of attendant recklessness and indifference to laws and rules governing he operation of a motor vehicle.”[87]
[86]Summarised at [46].
[87]R3 [30], citing Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561 at [45].
The Respondent submitted further that the Applicant has not been forthcoming and honest with the Department about his offending which weighs against a finding that he is of good character[88], for the following reasons:
(a)The Applicant failed to declare his offending in his citizenship application. Relevantly, to the ‘Character declarations’ question,[89] the Applicant answered ‘No’.[90] Given that:
(i)the Applicant pled guilty to both offences,[91] and
(ii)the specific question posed,
the Applicant would, and should, have known that his negative answer on the Application form was untrue.[92]
(b)Truthfulness in the completion of government documents, such as applications for citizenship, is therefore to be treated as “an absolute requirement” and it is the responsibility of a citizenship applicant to ensure that information submitted by them or on their behalf is truthful.[93] A failure to fulfil this responsibility weighs heavily against a finding that an applicant for citizenship is presently of good character.[94]
(c)The Applicant’s failure to disclose his criminal history in the past also weighs heavily against a finding that he is of good character.[95]
[88]R3 [31].
[89]See fn 28.
[90]R3 [32], citing R1, T4, p 27.
[91]R2, ST2, pp 29, 31.
[92]R3 [32].
[93]R3 [33], citing Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686 [97].
[94]R3 [33], noting SM Puplick in Nguyen at [82]–[84] (see [23] above).
[95]R3 [34].
The Respondent contended that therefore, the weight of the evidence, particularly the seriousness of the Applicant’s domestic violence offending and conduct and the information he has provided in respect of it, does not support a finding that the Applicant is of good character.[96]
[96]R3 [35], [36], citing DP Breen in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8] (see [18] above).
Consideration
The Tribunal’s consideration of the issue for review falls into two main categories:
(a)the Applicant’s violent and/or offending conduct; and
(b)the information that the Applicant provided in his application for citizenship.
The Applicant’s conduct
While the Applicant has only been convicted of one violent offence, the evidence before the Tribunal indicates that there is an extended history of aggression and violent behaviour.
Even now, at hearing, the Applicant attempted to undermine the recording in the police incident reports, diminish his own role and culpability in these incidents and make excuses for his violent conduct. The Tribunal considers these matters to be relevant to the Applicant’s character and to his claims that he is ashamed and remorseful.
In particular, the Tribunal is of the view that very little weight can placed on the Applicant’s claims that he is ashamed and remorseful, where his evidence is that:
(a)there are two sides to a story, and that he never had the opportunity to present his side;[97] and
(b)the victims, including his wife,[98] ‘provoked’ him,
which the Tribunal takes as an indication that the Applicant therefore considers his violent conduct was, in the circumstances, justified.
[97]See above para [34(c)].
[98]See above para [38] for example.
Regarding any mitigating factors,[99] the Tribunal is of the view that, given the Applicant has attempted to:
(a)undermine his convictions;
(b)lay blame on his victims, particularly his wife; and
(c)dispute the reporting of the incidents as recorded by the police,
the Applicant has not accepted responsibility for his actions, nor has he demonstrated any genuine remorse.
[99]See above para [20].
As to the Applicant’s traffic offences, the Applicant’s behaviour as documented in that history serves as evidence, in the Tribunal’s view, consistent with his history of disregard for the law. Again, at hearing the Applicant quibbled with the number of traffic offences recorded and the period of time over which they occurred.[100] The Tribunal considers this to be a further instance of the Applicant’s attempt to undermine the seriousness of his offending conduct.
[100]Transcript, pp 20–22.
The Applicant’s claims to be rehabilitated are made on the basis of evidence provided by Mr Del Borello and Ms Sharpe.
The statement provided by Mr Del Borello[101] states that the Applicant engaged in psychological therapy on numerous occasions in 2010. There is no information in Mr Del Borello’s statement regarding:
(a)the nature of the therapy he provided to the Applicant;
(b)the matters that were addressed during these sessions;
(c)the Applicant’s learnings; or
(d)any gains made from these sessions.
[101]A3(c).
In any event, the evidence is that the Applicant continued to engage in violent conduct beyond his therapy sessions with Mr Del Borello in 2010,[102] calling into question any demonstrable progress regarding the Applicant’s rehabilitation even if these matters had been detailed in Mr Del Borello’s statement.
[102]See above para [42].
The letter provided by Ms Sharpe states that the Applicant regularly attended sessions with her for support in addressing his anxiety and depression due to a workers’ compensation claim,[103] which is still underway. Nothing in Ms Sharpe’s letter suggests the counselling provided by her was for the purpose of preventing his earlier violent behaviour, or the anger issues that the Applicant claims underpinned that behaviour.
[103]A3(d).
The Tribunal is of the view that the noted shortcomings in relation to Mr Del Borello’s and Ms Sharpe’ evidence (as it relates to the Applicant’s efforts to rehabilitate)[104] can only indicate that the Applicant has not addressed his anger, or his violent behaviour, the Tribunal cannot be satisfied he is rehabilitated and hence his claimed rehabilitation cannot serve to mitigate his offending and other violent behaviour.
[104]See paras [55] and [57].
In making this finding, the Tribunal is particularly concerned by the Applicant’s evidence that, now, if a situation arose that triggered his anger, he would leave his wife to deal with any issues regarding the children’s behaviour. This is notwithstanding the Applicant’s responsive explanation that presently, the children are often in his sole care while his wife works and he is no longer violent towards his children.[105]
[105]Transcript, p 58 [15]–[25].
Information provided to the Department
In his application for citizenship by conferral, the Applicant failed to declare his offences. The Applicant has given the explanation that he was unaware that he had to disclose his spent conviction.
The Applicant gave evidence that later, after having lodged the application, he perused publicly available information on spent convictions and formed the view that he did not need to disclose his spent conviction in that form. These are two entirely different propositions and a disparity that the Tribunal need not seek to resolve given that the application form for citizenship clearly directed the Applicant to disclose:
·any offences overseas or in Australia; including
·all traffic offences which went to court, including offences declared in your permanent residence application; and
·any ‘spent’ convictions.
For completeness, and in any event, that the Tribunal notes given the Applicant’s oral evidence that he obtained the information on spent convictions after he lodged his application for citizenship by conferral, this information cannot be considered as having contributed to his failure to declare the necessary offences and convictions in the application.
The Applicant also signed the declaration on that form attesting to his having provided complete, truthful and correct information,[106] which he did not. The Tribunal considers the Applicant’s attempts at hearing to explain why he did not do so is a further demonstration of his attempts to minimise his own behaviours.[107]
[106]R1, T4, p 29.
[107]For example see above para [32].
The Tribunal considers that these matters[108], considered together, weigh heavily against it being satisfied that the Applicant is of good character.
[108]See above paras [50]–[63].
Character references
The Applicant has provided a number of character references from friends, in the form of signed statements. Notably, there are no references from the Applicant’s victims or otherwise any of his family members.
The Respondent submitted that while the Applicant has provided a number of character references they should be given no weight in circumstances, where:[109]
(a)The statements of Mr Suter,[110] Ms Slater,[111] Mr Sutton,[112] Mr Titherington,[113] and Ms Heckingbottom[114] make no reference to any knowledge of the Applicant’s criminal offending or alleged conduct.
(b)The statement of Mr Sutton dated 19 February 2021[115] refers only to being “aware of what happened in 2010” and demonstrates no awareness of the Applicant’s full criminal history.
[109]R3 [27]; Transcript, p 50 [40]–[45].
[110]R1, T8, p 63.
[111]R1, T8, p 64.
[112]R1, T8, p 65.
[113]R1, T8, p 66.
[114]R1, T8, p 67.
[115]A3(e).
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; and
(b)none of the referees were made available for cross-examination at hearing,
therefore, and in any event, all the evidence contained in these references more generally remains untested.
In the circumstances, and referring to the Policy,[116] limited weight can be placed on these references.
[116]Extracted at [26] 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 30 November 2020 to refuse the Applicant’s application for citizenship by conferral, is affirmed.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

..........[Sgd]..............................................................
Associate
Dated: 16 November 2021

Date of hearing: 30 September 2021

Representative for the Applicant: Self-represented

Representative for the Respondent: Ms D Jones-Bolla, Sparke Helmore Lawyers

The Applicant was made aware of this several times throughout the hearing, see Transcript, p 29 [40];

p 31 [15]; p 49 [5]–[25] (includes reference to related authority, Minister for Home Affairs v Sharma [2019] SCA 597), p 54 [20]; p 55 [40]–[45]. See also above para [21].

“…domestic violence … in any form is not acceptable in the Australian community.
Behaviour that impinges on the safety of, or creates fear in the community, is not acceptable. Persons taking part in, or condoning, such activities do not respect the rights and liberties of others in the
community”. See also Transcript, p 49 [30].

[2021] AATA 5296

16 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Date of hearing:	30 September 2021
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Ms D Jones-Bolla, Sparke Helmore Lawyers