Xaashi and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 360
•11 April 2025
Xaashi and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 360 (11 April 2025)
Applicant/s: Canab Maxamuud Xaashi
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2024/1087
Tribunal:General Member S. Fenwick
Place:Melbourne
Date:11 April 2025
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the finding that the Applicant satisfies the requirements of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
..............................[SGD]..........................................
General Member S. Fenwick
Catchwords
CITIZENSHIP – application for citizenship by conferral – national of Somalia – whether applicant is of good character – single incident of violent offending – no conviction recorded – whether underlying facts of conviction immune from challenge – consideration of objective seriousness of offending – decision set aside and remitted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)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] FCA 1660
HZCP V Minister for Immigration and Border Protection [2019] FCAFC 202
Maxwell v R [1996] HCA 46
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Ridley v Secretary, Department of Social Security [1993] FCA 213
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155Secondary Materials
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
Statement of Reasons
BACKGROUND
Ms Xaashi applied on 19 February 2024 for review of a decision of a delegate of the Respondent Minister, dated 31 January 2024, refusing her application for citizenship by conferral on the basis that they were not satisfied she is of good character. Under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act), a person must be of good character at the time of a decision on their application. In this case, Ms Xaashi was found not to meet this eligibility criterion because of her plea of guilty in 2021 to a charge of recklessly cause serious injury.
The Applicant was born in Somalia in 1996 and arrived in Australia in late 2018. She arrived here with no formal education and having escaped from a marriage arranged when aged 14. She has two young children of that marriage both living in Somalia and has since given birth to a child from a more recent marriage with a man in Kenya, in 2023.
In late 2020, when living in shared accommodation while working in the regions, Ms Xaashi became involved in a disagreement with a housemate. In the course of this disagreement the housemate suffered a cut on the hand from a kitchen knife. As noted, this led to the Applicant pleading guilty to a single charge, for which there was no conviction recorded by the County Court. She was sentenced to a 12 month community corrections order with the obligation to perform 80 hours unpaid community work. Ms Xaashi has no history of convictions or other offending behaviour.
The Applicant was represented before the Tribunal and lodged written submissions dated 27 May 2024, and a bundle of material including sentencing remarks of a judge of the County Court, dated 20 October 2021, a sworn statement of Ms Xaashi, dated 9 July 2024, and several other sworn statements by referees. The Respondent lodged documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T), and a Statement of Facts, Issues and Contentions (RSFIC).
At the commencement of the hearing, Ms Xaashi’s representative confirmed that the Applicant had possession of the report of Mr Jeffrey Cummins, clinical psychologist, dated 12 October 2021, and prepared for the purposes of her sentencing hearing. This was duly also provided to the Tribunal and Respondent.
The Applicant gave evidence at the hearing with the assistance of an interpreter in the Somali language. Evidence was also given by Ms Fartun Farah, a community worker, and Ms Sahra Ali, a friend and former housemate of the Applicant.
LEGISLATION
The general eligibility provisions applicable to citizenship by conferral are found in s 21(2) of the Act. As noted, s 21(2)(h) provides that a person be of good character at the time a decision is made. The term ‘good character’ is not defined but has been considered in a number of judicial decisions:
(a)it carries its ordinary sense, but can be understood as referring to a person’s enduring moral qualities rather than their standing in the community (Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 1660) (Irving);
(b)a person may show that they have reformed despite a conviction for a serious crime (Irving); and
(c)a person’s moral qualities are a matter of judgment, and a decision-maker must reach an affirmative state of belief about a person’s good character, which need not be attained to a high degree of confidence (BOY19 v Minister for Immigration and Border Protection [2019] FCA 574) (BOY19).
Citizenship Procedural Instruction 15 (CPI 15) is one of a series of policy statements that assists the making of decisions under the Act. By way of general overview, CPI 15 provides [3.1]:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
CPI 15 further provides that a criminal history check is an important element of determining whether an applicant is of good character [7.2]. It goes on to note that a citizenship application should be checked for any acknowledgment of offending, and that ‘[d]ecision maker can only act on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct’ [12.1]. This section states further, reliance upon a conviction applies regardless of whether an applicant maintains their innocence. Consideration is also given to the seriousness of the offending.
CPI 15 provides guidance on the overall weighing of information including the seriousness of any offending, together with mitigating factors such as rehabilitation, and the length of time since any offending [14].
ISSUES
The sole issue before me is whether I consider the Applicant to be of good character as at the time of my decision.
EVIDENCE
Ms Xaashi sets out the background to her offending in her recent statement, dated 9 July 2024. She outlines a change of housemates at an unspecified time, following which she experienced harassment and bullying by a new male occupant. More specifically, on the day of the disagreement, the Applicant states that she became involved in a physical argument with the female victim, also a housemate. During this fight the victim bit her finger, and Ms Xaashi states [11]:
I then grabbed the knife to get the victim to stay away from me. It was never my intention to hurt her. The victim suffered serious injury to her thumb when she tried to grab the knife from me when she grabbed the blade side of the knife.
The Applicant states further that she has undergone rehabilitation, including medical treatment, has not committed any further offences, and completed her community corrections order [14]-[15]. She also explains that she did not seek to make a misleading statement in her citizenship application, rather she found the question about any convictions confusing since her sentencing result was ‘without conviction’ [17]-[18]. Ms Xaashi also further states that she lives with her daughter (now one year old) and is employed in a ‘pick and pack’ role, and helps out within the Somalian community and in volunteer work [19]-[21].
Considerable time was taken in the Applicant’s evidence, in cross-examination, to review the circumstances of the offence. Initially, Ms Xaashi stated that the victim tried to grab the knife and that the Applicant then tried to prevent this, and the victim was cut. Ms Xaashi agreed with the additional element she provided in a December 2023 statement (T13a) that the victim had thrown a heater at the Applicant. Ms Xaashi was also taken to details of the incident provided to Mr Cummins and described in his report [17]. This version includes reference to the Applicant being held by one of the housemates, which she stated was true.
Ms Xaashi was also taken to the events as related in the sentencing remarks. The Applicant agreed that she slapped the victim, but denied taking a 20cm knife from the kitchen and concealing it in her headscarf [10]. She denied waving it around and pointing at the victim’s stomach, lunging toward the victim, or moving the knife backwards and forwards [10]-[12]. When pressed about her guilty plea, Ms Xaashi stated she did not accept these circumstances, and had not given a statement to police.
When it was put to Ms Xaashi that she had provided different versions of the circumstances over time she offered an apology for her conduct, and stated that she had never done anything to harm anyone’s life. In response to questions from myself, the Applicant confirmed that she has limited English language skills, and further that she was assisted by her sister in completing her citizenship application. It was put to Ms Xaashi she had tried to mislead by answering ‘no’ to the following question (T3, 28): ‘Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?’ In short, the Applicant responded that she thought this was a question about whether she had been to jail.
Later in the hearing, I recalled the Applicant to further explore the incident. Ms Xaashi stated that she was in the kitchen trying to cook dinner and the victim also came into the kitchen. This was after an initial disagreement in the laundry, and following the Applicant returning to her room to shower. During their argument, the knife was on the kitchen table and Ms Xaashi saw the victim try to grab the knife, and tried to prevent this. The Applicant also stated in this part of her evidence that they both tried to grab the knife at the same time.
In her statement, dated 28 May 2024, Ms Farah explains that she is the chair of the East Africa Women’s Foundation, and an advocate for the Somali-speaking community. Ms Farah states she has known the Applicant since her arrival in Australia, and that Ms Xaashi contacted her after the incident and told Ms Farah that she did not intend to hurt the victim. Ms Farah states that she believes the incident to be out of character and that the Applicant makes a valuable contribution to the community.
Ms Farah stated in evidence at the hearing that she received a phone call from Ms Xaashi on the day of the incident and the Applicant was in shock. The Applicant told her it was not intentional and she wished it did not happen. Ms Xaashi told her that she grabbed the knife before the victim in order that she would not be hurt herself. Ms Farah confirmed that the Applicant is a willing volunteer at community events and is polite and respectful. The Applicant helps with the elderly as well as with handling new arrivals.
In her statement dated 26 May 2024, Ms Ali states that she has known the Applicant for over 5 years, and that she previously lived together with Ms Xaashi at the house in which the incident occurred. Both the Applicant and victim are known to Ms Ali and she states that she was shocked to hear about the incident between them. Ms Ali considers that Ms Xaashi adds value to the community.
Ms Ali appeared in her evidence not to have a detailed understanding of the incident, but stated that the Applicant had not wanted it to occur. She had tried to mediate between the parties and also believes Ms Xaashi regrets the incident.
Other material
As indicated from the summary of evidence above, the sentencing remarks contain a description of the facts, albeit it is not entirely clear from the record what the source of the facts is, and I do not have before me any other material relating to the prosecution. The remarks report the somewhat protracted series of events commencing with a dispute over laundry (against a background of other disputes) [3]-[5]. This progressed to a fight in which Ms Xaashi and the victim slapped each other across the face, there was mutual hair pulling with the victim, and the Applicant put her fingers in the victim’s mouth leading to a bite [6]-[8].
After a short break the dispute resumed, and Ms Xaashi is said to have gone to the kitchen and taken up a large knife and walked into the loungeroom with it concealed in her headscarf [9]-[10]. The Applicant is described as waving the knife and also lunging at the victim and pointing it at her stomach, and another housemate attempted to intervene. The victim put her hands out to protect herself and grabbed the knife blade. At this point Ms Xaashi is said to have moved the knife backward and forward causing a deep laceration, and told the victim that she deserved this [12].
The victim had a six-centimetre wound which was treated at hospital through plastic surgery, and she received follow-up treatment [16]. A forensic physician gave evidence that it was possible there could be full recovery, but also that there could be permanent changes to the victim’s range of movement [17]. At the time of her victim impact statement, she was without any feeling in her thumb and continued to be fearful [20].
The judge accepted that Ms Xaashi and the victim had been friends, and also that a rift occurred between them when a male housemate moved into the property [24]-[26]. The sentencing remarks refer to the report of Mr Cummins (addressed below) and the judge notes that it is accepted in the guilty plea that Ms Xaashi did not intend to stab the victim in the stomach, but admits the serious injuries incurred [28]-[32]. Here the judge relates that the Applicant said that when she grabbed the knife, the victim ‘also grabbed at it and it was during this struggle (apparently you got the knife first) she grabbed at it taking hold of the blade and that is when the injury occurred’.
In respect of the Applicant’s circumstances the judge noted, among other things [33]-[50]:
(a)she has worked hard, indeed extremely hard, since coming to Australia and is desperate to get her children to Australia, and is concerned about their welfare;
(b)the offending was very much out of character, and the Applicant has since taken steps to address her mental state in treatment with a psychologist, and is remorseful;
(c)in the opinion of Mr Cummins the risk of further offending is low, and Ms Xaashi had commenced engagement with Foundation House; and
(d)there were letters of support from community organisations.
Specific findings of the sentencing judge include [51]-[58]:
(a)Ms Xaashi pleaded guilty at the earliest stage and her remorse was accepted;
(b)the Applicant was not considered a danger to the community, and the low risk of reoffending was confirmed in an assessment by community corrections;
(c)the injury to the victim was at the lower end of the scale given the definition of serious injury as one that ‘either endangers life or is substantial and protracted’;
(d)Ms Xaashi had been subject to an amount of bullying and harassment prior to the incident, indicating it occurred in a particular set of circumstances; and
(e)the Applicant removed herself from the environment and lived in a supportive environment with her sister, and remains hardworking and prosocial.
The sentencing judge stated that they would be ‘extremely surprised if [the Applicant] ever offended again or appeared before a court again’ and considered the circumstances warranted a no-conviction outcome and a community corrections order [58]-[59]. Furthermore, and apparently by way of an aside at the close of the hearing, the judge also stated [68]:
[i]t seems to me that you are exactly the sort of person who deserves to be made a citizen of this country. You are a strong, hardworking woman. You are responsible and you have a great deal to be proud of in your life …
As indicated above, Mr Cummins’ account of the incident includes details not found in the initial parts of the sentencing remarks. These include the throwing of a heater at the Applicant, and her being held by another housemate. Consistent with the sentencing remarks, Mr Cummins reports that Ms Xaashi called a friend of the victim so that she could receive assistance. Mr Cummins reports that he assessed the Applicant’s risk of further violent offending, resulting in the finding of low risk [22]. He also considered that Ms Xaashi did not need to participate in an anger management program. Mr Cummins assessed the Applicant has having protective factors against the risk of violence of a moderate-high level [23]. He also reports that the Applicant did not present with an antisocial personality style [25]. Mr Cummins concludes that the offending was situationally motivated against a background where Ms Xaashi felt she was bullied and intimidated [32].
Further information about the Applicant’s personal history and circumstances are found in a letter from Ms Claudina Garcia, psychologist, dated 2 October 2021 (T13d). Ms Garcia also relates Ms Xaashi’s treatment for depression following the incident and also that she experienced nightmares and flashbacks. Ms Garcia notes that the Applicant’s mental health symptoms were present together with symptoms of trauma, stress, and grief. It is also explained here that Ms Xaashi had a support worker from Foundation House, and has good insight into her issues.
Ms Xaashi’s engagement with Foundation House is confirmed in a letter from Ms Sofia Riveroll, a counsellor advocate, dated 20 September 2021 (T13e). Ms Riveroll confirms the presence of symptoms of pre-arrival trauma, depression and a sub-threshold psychotic symptom (which is not described). There is a recommendation for ongoing treatment from Foundation House, and Ms Riveroll also identifies strong help-seeking behaviours and willingness to engage in ongoing therapeutic support.
Ms Farah provided a letter of support prior to sentencing, dated 4 October 2021 (T13f). It is in similar terms to her later statement and evidence. Dr Hussein Haraco of the Somali Australia Council of Victoria similarly provided a letter prior to sentencing, dated 14 September 2021 (T13g). This letter attests to the Applicant’s community work and remorse.
CONSIDERATION
The Applicant’s written and oral submissions stressed factors including the no conviction outcome, and the imposition of a community corrections order, the fact the offending was out of character, and the Applicant’s guilty plea and remorse. It is contended Ms Xaashi did not understand the question on the citizenship application form, and that sufficient time has passed since the sentencing and completion of her community service obligation.
With reference to CPI 15, it was contended at the hearing for Ms Xaashi that provision is made for offences leading to a finding of guilt without conviction, which may be categorised as ‘minor offences’ [12.1]. It was submitted that the Applicant’s behaviour on the day of calling a community leader, and assisting the victim were consistent with her remorse and insight into the offending. Moreover, when weighing up the evidence overall, it was contended that the incident was not premeditated, there is no pattern of offending, and Ms Xaashi is well regarded for her hard work and community involvement. These matters speak to her enduring moral qualities.
The Respondent submitted at the hearing that Ms Xaashi should be taken to have accepted the underlying facts of the offending conduct. She must be taken to have understood the facts described in the sentencing remarks, yet each later statement is different in material respects, and accordingly the formal record should be preferred. In short, the Respondent contended that the Applicant’s description of attempting to prevent the victim obtaining the knife was an attempt to cast her behaviour in a better light, and undermines her claim to good character. Consideration should also be given to the impact on the victim as outlined in the sentencing remarks.
It was also submitted that the Tribunal should decline to accept the self-serving explanation provided with respect to the Applicant’s citizenship application. Consistent with the RSFIC, it was also contended that despite letters and witnesses in support, they lack objectivity and knowledge of the offending. It was also contended that in weighing the evidence overall, a single instance of sufficient seriousness outweighs other good qualities. Fundamentally, the Respondent also contends that insufficient time has passed since the offending for the Applicant to prove that she is of good character, and she continues to fail to take responsibility (RSFIC [30]).
It is necessary to add to this summary of submission an outline of discussion at the hearing concerning the status of Ms Xaashi’s offending, and the authorities addressing the role of facts upon which a court outcome is based. I informed the parties that my understanding of the issue was informed by the decision of the Full Court of the Federal Court of Australia in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (HZCP). There, McKerracher J identifies, with reference to authorities, the distinction between circumstances in which a conviction forms the basis of the jurisdiction of a Tribunal, and circumstances in which the exercise of a power is not founded on a conviction [22]-[26]. Put briefly, in the former situation, a Tribunal is not permitted to ‘go behind’ the conviction, or assess its propriety.
A key supporting authority is Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 (LLF). The court in LLF relies, in turn, upon a series of decision in the Federal Court of Australia in identifying the applicable legal principles in the second category of case [42]:
the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based
In a similar vein, in a decision concerning the discretionary power for deportation under s 200 of the Act, Branson J held in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 (Ali) that ‘there is no absolute rule that the Tribunal may not consider material which challenges the ground on which a prior conviction was based’ [43]. Her Honour’s subsequent findings that a conviction and sentence were strong prima facie evidence of the facts upon which they are necessarily based are relevant to what might loosely be described as the precondition in that case, under s 201 of the Act, of a conviction. Branson J added that ‘this heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty …’.
A source authority common to the above decisions is the decision of the Full Court of the Federal Court of Australia Ridley v Secretary, Department of Social Security [1993] FCA 213 (Ridley). Ridley involved the review of a decision about overpayment of a social security benefit. Prior to the review, the applicant was also found guilty in a Court of Petty Sessions of knowingly obtaining payment of a benefit that was not payable, in respect of the same payments. The Full Court considered whether it was appropriate for the applicant to ‘re-litigate’ her entitlement to the benefits [29]. In doing so it reflected on the nature of administrative review, noting that whatever procedure is pursued to do so, the (then) Administrative Review Tribunal ‘performs solely administrative functions in deciding what administrative decision is appropriate’. In this context, a party is entitled to present any material that ought to be taken into account and, further:
If that material also challenges facts that were essential for the conviction of that person of an offence, it is not a requirement of law under the rubric of public policy that the review of an administrative decision and the exercise of an administrative discretion or decision-making power be carried out by excluding from the consideration of the reviewing authority material which challenges the grounds on which the prior conviction was based.
Ultimately, the Full Court in Ridley ruled that the trial judge had erred in overturning the original Tribunal decision to set aside the delegate’s decision against the applicant. In doing so, it noted the Tribunal had been aware she had ‘stood before [it] as a person convicted on charges which involved facts likely to be very pertinent to facts to be determined by the Tribunal’ [39]. Further, in receiving material that challenged essential facts on which the conviction had been based, ‘any findings made upon evidence presented to the Tribunal should be made after the exercise of considerable care if those findings were necessarily inconsistent with findings inherent in the convictions’ [45].
Clearly enough, the distinguishing characteristic of Ms Xaashi’s circumstances is that she was sentenced upon a plea of guilty but with no conviction. On the basis of the authorities set out above, I consider I am able to take account of Ms Xaashi’s evidence, and related material, that challenges facts referred to by the sentencing judge. Broadly following Ali and Ridley, however, I also consider that a guilty plea on a criminal charge that is pertinent to the inquiry underpinning the required finding as to good character requires me to exercise caution. This is the more so given the administrative function performed by the Tribunal. CPI 15 also cannot be ignored. While key elements of this policy guidance also focus on ‘convictions’, the considerable attention paid there to considering a person’s history of criminal offending must carry some significance.
Finally, and perhaps most pertinently under the circumstances, I note also the decision of the High Court in Maxwell v R [1996] HCA 46 (Maxwell) in which Dawson and McHugh JJ held that where an accused pleads guilty to an offence, this constitutes an admission to the essential elements of the offence [19]. When sentencing the Applicant, the judge makes observations that I consider consistent with the proposition in Maxwell when saying (at [32] of the sentencing remarks) that it is accepted in the plea to a charge of recklessly causing injury that there was no intention to stab, but an admission that a serious injury was suffered in this instance.
The Applicant has presented a quite different account of the incident in which her housemate suffered a substantial laceration. It is supported to some extent by the evidence of Ms Farah, based on a contemporary account of the incident provided by the Applicant. It is also supported somewhat by the account provided to Mr Cummins. Unfortunately, as I have already noted, I do not have before me any additional documents, such as police material that in some matters before the Tribunal is lodged pursuant to a summons request. I am therefore unable to weigh the basis upon which any agreed facts were put to the sentencing judge with the alternative account provided by Ms Xaashi. Furthermore, I have no evidence before me of some failing in the support or advice provided to Ms Xaashi in making a plea, such that I should not consider the plea to represent acknowledgment of the fact that she recklessly caused a serious injury.
For this reason, I consider it prudent to treat the alternative fact scenario with some caution. This, however, is not fatal to Ms Xaashi’s position. The fact that no conviction was recorded speaks to the objective seriousness of the offending. Strictly speaking, CPI 15 permits me to consider this a form of more minor offending, despite the dramatic circumstances and the fact that it might generally be categorised as a form of violent offending (resulting as it did in injury). The outcome, and the tenor of the sentencing remarks overall, also speak not only to the lower level of culpability of the Applicant, but also to both her ‘antecedents’ (as it is put in CPI 15 [12.1]), and prospects for rehabilitation.
Do I consider the Applicant later sought to mislead the agency in her application for citizenship about her offending record? This, too, upon more detailed consideration is a slightly more complex matter. I set out the pro-forma question above, and it invokes several related, but distinct, legal concepts. The question first refers to a conviction, then to a finding of guilt, and subsequently to ‘spent’ convictions. I note that the question immediately following on the application form asks whether the applicant has been confined in a prison. Ms Xaashi appears to have turned her mind to the issue, as she stated in evidence that she thought she was asked about jail time, and about this fact she is not entirely wrong. It may be too pedantic to seek a distinction between a finding of guilt and a guilty plea. Nonetheless, I accept the evidence that the Applicant was helped by her sister, and that Ms Xaashi herself has limited English language competence. In these circumstances, and given the multiple concepts included in the question, I do not consider that the only conclusion to be arrived at is that she sought to mislead by answering ‘no’ to this question.
With respect to the value of Ms Xaashi’s referees, I do not entirely accept the Respondent’s general contention that they are overly general in nature. The importance of Ms Farah’s support is that she has both more specific knowledge of the circumstances of the incident, and is a suitably experienced referee with respect to the Applicant’s community engagement. Ms Ali also has unique insight into both Ms Xaashi and the victim of her offending. Her perspective, indeed, appears to reinforce the professional view of Mr Cummins, and that of the sentencing judge, that the Applicant’s conduct was out of character.
In making a wholistic assessment of factors concerning Ms Xaashi’s character I take the following into account:
(a)her guilty plea, and the inherent acknowledgement of having caused serious injury;
(b)the fact that there was a no-conviction finding upon sentencing, and the imposition of a community corrections order;
(c)the associated judicial findings of remorse, prosocial attitude, and low risk of re-offending;
(d)the associated and supporting professional psychological opinion, including of the moderate-to-high level protective factors against further violent offending; and
(e)the strength of supporting evidence from various referees, and the commitment Ms Xaashi has shown to ongoing mental health treatment (despite there being no clear finding that her mental health was a direct factor in the offending conduct).
To the extent that the contention, frequently made in these matters, that insufficient time has passed since offending is a robust and productive measure of character, I do not consider it to have particular impact in Ms Xaashi’s circumstances. The relevant conduct was nearly five years ago, has been accepted as being out of character, and she was treated with notable leniency by the sentencing judge. Accordingly, I am satisfied that the Applicant’s isolated offending does not completely define the extent of her current moral qualities, and therefore she is to be considered of ‘good character’ as required by s 21(2)(h) of the Act.
DECISION
For the reasons given above, the Tribunal sets aside the decision under review and remits it for reconsideration in accordance with the finding that the Applicant satisfies the requirements of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
Date(s) of hearing: 14 March 2025 Solicitor for the Applicant: Mr Yusef Mohamed Solicitors for the Applicant: Starnet Legal Solicitor for the Respondent: Ms Mary Baras-Miller Solicitors for the Respondent: Australian Government Solicitor
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