WWZZ and Minister for Immigration and Multicultural Affairs (Citizenship) - [2025] ARTA 381

WWZZ and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 381 (22 April 2025)
Applicant/s:  WWZZ
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/3127

Tribunal:Deputy President Millar
Place:Adelaide
Date:22 April 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 22 April 2025 at 1:11pm
CATCHWORDS
CITIZENSHIP – refusal of citizenship – whether Applicant is of good character under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – Applicant’s criminal history considered – Tribunal not satisfied Applicant is of good character at time of its decision – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Irving v Minister for Immigration Local Government and Ethnic Affairs (1996) 68 FCR 422
VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230
Statement of Reasons
APPLICATION FOR REVIEW

The Applicant applied for Australian citizenship on 5 September 2023, however his application was refused because a delegate of the Minister for Immigration was not satisfied that he is of good character. The Applicant has applied for review of this decision.
LEGISLATIVE FRAMEWORK
The Applicant applied for Australian citizenship by conferral under s 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’). If he meets the requirements in s 21(2) of the Act, he is eligible for Australian citizenship.
The delegate found that the Applicant did not satisfy paragraph 21(2)(h) of the Act, which requires that the applicant is of good character at the time of the Minister’s decision on the application. In reviewing this decision, this is an assessment of the Applicant character at time of this decision.[1] The test is that the Tribunal is ‘satisfied’ of his good character, not anything more such as ‘comfortably satisfied’.[2]
[1] BOY19 v Minister for Immigrationand Border Protection [2019] FCA 574; VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230.
[2] BOY19 v Minister for Immigrationand Border Protection [2019] FCA 574.
Assessing if a person is of good character is an assessment of their enduring moral qualities, and not the good standing, fame or repute of the person in the community.[3]
[3] Irving v Minister for Immigration Local Government and Ethnic Affairs (1996) 68 FCR 422.
BACKGROUND
The Applicant is a citizen of South Susan who came to Australia in 2015 on a refugee visa when he was 32 years old. His application for citizenship states his parents are deceased, and that he had a spouse in Uganda with has a child from this relationship. He has two siblings in South Sudan.
The Applicant lived as a refugee in Uganda and Kenya as well as having periods in South Sudan. His schooling was undertaken at Kakuma refugee camp in Kenya.
In oral evidence he said he has attended TAFE and obtained a Certificate III in English and a Certificate IV in Security.
The Applicant said he worked on a farm for 5 years, before moving into security at a mine site, and then on to a chicken farm. He relocated from Queensland to Western Australia in September 2024, and is currently working full time at a recycling business and part time in a chicken factory.
He said he has one relative in Australia but has little contact with this relative, having only seen the relative once and spoken on the phone.
He commenced a relationship in 2016 and was in this relationship for approximately a month. His second relationship extended for more than 5 years, and he has a daughter born in 2023 from this relationship. His daughter lives with her maternal grandparents.
The Applicant provided a reference from the President of the Nuer Association dated 19 September 2024. This confirms he was the Nuer youth leader for three years and a Secretary for Information from 2019 to March 2023, and states he served the community with persistence and respect. The Applicant said he is involved in the choir at a church in Brisbane and that he has provided financial assistance for people in South Sudan, and also provides financial assistance if someone dies in the local community.
RELEVANT CONDUCT
The Applicant arrived in Australia 9 September 2015, and on 13 July 2017 was sentenced without conviction to community service of 200 hours for recklessly putting someone at risk of contracting a notifiable condition.
This is described in the Queensland Police brief, which records that the Applicant was advised he had human immunodeficiency virus on 25 June 2015. He met the victim in March 2016. They decided to have intercourse, however the victim said she would not have sex without a condom, and the Applicant left to purchase condoms. It is alleged that the Applicant removed the condom and had unprotected sex with the victim. At some point the victim realised they were having unprotected sex and was upset. She asked if he had any sickness like “HIV” and when he said he did, she became more upset. He walked the victim to the Civic Centre and then attended to police station to say he thought he had given the victim HIV. In an interview he said he had unprotected sex with the victim and knew he could give her HIV by having unprotected sex.
At hearing, the Applicant said he was diagnosed with a disease before he came to Australia, and when he told his girlfriend he had the disease she did not react badly, but the next thing he knew she went to the police. He said the condom broke, and his girlfriend was tested at the hospital and was negative. He said he told her the truth that he had been diagnosed with a disease before they had sex.
In January 2021 there is a report to police which did not result in any charge or conviction. Police attended after a report of breach of the peace. The alleged victim said she was told by her GP that she is HIV positive and one month pregnant, and that she wanted to end the relationship with the Applicant and retrieve her property. The alleged victim said she had moved in with Applicant one month prior to having unprotected intercourse without the Applicant advising he was HIV positive. On being diagnosed with HIV and being advised she was pregnant, the alleged victim reported she found the Applicant’s medication for people who are HIV positive. Attempts by police to obtain a statement and medical evidence from the alleged victim were not successful, and a withdrawal of complaint was received 17 October 2021. The police state it is unknown if the alleged victim contracted HIV or was pregnant.
In being referred to this report, the Applicant said that the complainant did know his HIV status before they had sexual intercourse, and that she agreed to have sex until she was pregnant. He said she did not get tested for HIV, and that because he takes the medication others do not get HIV from him. He said he did not know if she was pregnant or if she aborted the child, and they did not discuss an abortion. His girlfriend became pregnant in 2023 and they had a child, staying together until she moved out in 2024.
The Applicant was charged with ‘choking/suffocation/strangulation domestic relationship’ and assault occasioning bodily harm on 25 April 2021. These charges were discontinued after the complainant signed a withdrawal stating she would not provide a statement and did not want to go to Court. The police facts allege the Applicant struck the complaint and placed a mobile phone charger around her neck, applying pressure to each side of the cord. It is also alleged he hit her with a metal bar or golf club and kicked and slapped her. Neighbours are reported to have heard and witnessed the attack and called 000. The Applicant also called 000 stating he was the victim of an attack. Police reported they observed swelling to the complainant’s right cheek, red eyes, and marks on her elbows. Police also later observed her right eye swollen shut and bruising and to her left arm and forehead. Investigators observed footage from a nearby door camera with video and audio of the Applicant striking the complainant while holding a metal bar, and witnesses said they observed the complainant on the ground being assaulted.
The police report records that the complainant was highly emotional while speaking with police and said if she had to stay at the unit she would rather die before attempting to climb the balcony railing before she was removed by police. She said she felt pressure from the community to stay with the Applicant and not report incidents of domestic violence. It is reported she then changed her story and said she loved the Applicant and did not want him to get into trouble, and that she had caused the injuries to herself. She was taken to hospital due to her injuries and to undertake a mental health assessment.
In response, the Applicant said that when his partner was drinking she was violent to him, and at this time she was trying to fight him and he had to defend himself. She told the police he tried to choke her with a phone cord and beat her with a golf club, but the Applicant claims that if he had done this then there would have been a wound. On being asked about the swelling to her eye and marks on her elbows, he said she was screaming and fell and hit her head. He acknowledged his partner was admitted to hospital but claims it was because she hurt her head.
A further police report was made following the admission of the alleged victim to hospital on 11 May 2021, and an allegation she made that the Applicant had locked her in his unit and told her she was not allowed out. She alleged she had been assaulted by the Applicant after an argument about money and was punched twice in the shoulder and slapped twice on her left cheek.
The Applicant said the alleged victim had taken all his money, and he did not lock her in, and that she had a key. He said she was violent, he left the house and would come back when she calmed down. He said she was admitted to hospital because they were fighting and because she had a mental illness.
On 13 May 2021 the Applicant was convicted of contravention of a domestic violence order and fined $150. This followed a protection order being made 28 April 2021 and personally served by police on the Applicant on 29 April 2021. The protection order included a prohibition from approaching within 100 metres of the complainant. The complainant took a photo of herself and the Applicant on the lounge at his residence on 6 May 2021. At interview, the Applicant denied this occurred on this date as he said he had not seen the complainant since being released from the watchhouse on 29 April 2021. In contrast, at hearing, he said that she came back more than 15 times and the police kept removing her.
The Applicant said he has nothing against the police because they are there to protect everybody, but the police did not know that he was not the one causing the problem. He is not a violent person otherwise he would have had a lot of problems with other people. He said he has never resisted arrest or resisted police, is not violence, and should not be called a violent person because of his girlfriend alone. The Applicant has not undertaken any courses on family violence.
On 22 November 2022 a Temporary Protection Order was made requiring the Applicant not to commit domestic abuse, approaching the premises of the aggrieved, approaching her within 100 metres, contacting her, using the internet or any communication device to communicate with, publish pictures of or make comments about the aggrieved.
A Temporary Protection Order was also made preventing his girlfriend from approaching him. The Applicant stated his girlfriend has not been charged with or convicted of any offences against him.
On 5 December 2022 the Applicant was fined $350 without conviction for contravention of a domestic violence order (aggravated offence). The police brief states that on 5 November 2022 the aggrieved and the Applicant were together at his address, and a search of the property found the aggrieved under the bed. The Applicant is recorded to have said the aggrieved was at his home when he returned from work at 1am, that he was aware of the domestic violence cross orders and that he could get into trouble for having contact with the aggrieved.
The Minister submitted that the Applicant provided an inconsistent employment history such as limited details of his employment while in Australia up to December 2022 that varied from his oral evidence, and provided no corroborating evidence from his former employees, concluding that this reflects poorly on the Applicant.
IS THE APPLICANT OF GOOD CHARACTER?
The Applicant has a work history in Australia, and has contributed to the Nuer community in Brisbane as well as in the church choir.
I do not consider that any inconsistency in the Applicant’s account of his educational history shows that he is not of good character. Similarly, failing disclose the birth of his daughter does not itself show he is not of good character in the Applicant’s circumstances, where he says he misunderstood the question.
The facts of matters for which there are police reports or charges that were not continued cannot be determined on the information before me, and I do not rely on these reports or charges, other than they establish that the relationship was volatile and police were called by the Applicant, his girlfriend, and neighbours due to concerns about their safety.
The Applicant’s account that his former partner was aggressive towards him is not discounted by the material summoned by the Minster. This includes a police report on 22 February 2023 which records both the Applicant and his former partner contacting police and making allegations of assault and breach of the protection orders. Police determined they were unable to proceed against either party as neither provide statements and CCTV was not available. The Applicant’s account that his girlfriend went to his place of residence despite the protection orders, and that she presented as having mental health needs, are also supported by the police reports.
The Applicant has had a highly volatile relationship and his account that his girlfriend was drinking and violent cannot be discounted. However, it is also apparent she suffered injuries, and he has once been convicted of contravention of a family violence order, albeit by being in the same place, sitting on his couch with his former partner. It appears from the fine without conviction for his girlfriend being at his property that they had difficulty remining apart despite the risk to the safety of either or both.
The Applicant told police he understood the orders, and that he could get in to trouble for breach of the orders but proceeded to have contact with his girlfriend regardless. This is not accounted for by the conduct of his girlfriend towards him. He has also been found to have put someone at risk of contracting a notifiable condition and was not convicted but was required to serve 200 hours of community service.
The Applicant’s conduct in placing someone at risk of a notifiable disease and his relatively recent noncompliance with orders made preventing him contacting his girlfriend show a disregard of the law and the orders he said that he understood.
In these circumstances, I am not satisfied that the Applicant is of good character. As a result he does not meet s 21(2)(h) of the Act and the decision under review is affirmed.
If the Applicant shows compliance with the law over time, he may establish that he is of good character in the future, and may apply again for citizenship at that time.
DECISION
The decision under review is affirmed.

Date of hearing:

19 February 2025

Applicant:

SELF REPRESENTED

Solicitor for the Respondent:

Jarvis KIRSTENFELDT

SPARKE HELMORE