XMNF and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 3248

XMNF and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3248 (11 September 2024)
Division:GENERAL DIVISION
File Number: 2023/8689
Re:XMNF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:11 September 2024
Place:Melbourne

The Tribunal affirms the reviewable decision.
.................[sgd].......................................................
Senior Member A. Nikolic AM CSC
Catchwords
CITIZENSHIP – application for conferral of Australian citizenship – citizen of Afghanistan – whether the Tribunal is satisfied of the Applicant’s good character – Australian Citizenship Act 2007 (Cth) – findings of guilt for three counts of unlawful assault – failure to disclose offending in citizenship application – 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) 165 ALD 39
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Maxwell v R (1996) 184 CLR 501
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Secondary Materials
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions, Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (26 February 2021)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
11 September 2024

INTRODUCTION

The Applicant seeks review of a decision to refuse his application for Australian citizenship based on the good character requirement at s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”).
Neither party requested that a confidentiality order be applied. This case, however, includes findings of guilt against the Applicant for three counts of unlawful assault in a family violence context. The Tribunal considers that the future interests of the Applicant’s wife and children deserve protection, and that this is sufficiently cogent reason to depart from the default position of a public hearing and public availability of evidence. The Applicant will be referred to by the anonym XMNF. The Tribunal has also determined that the names and other details of witnesses who provided character references for XMNF should not be disclosed.
The hearing was conducted by video on 2 July 2024, 20 August 2024, and 2 September 2024. The Applicant was represented by Mr Ramzan Ali, a solicitor with R.A. Lawyers & Migration Pty Ltd. The Respondent was represented by Ms Felicidade Lay, a solicitor with Minter Ellison Lawyers.
For the following reasons the Tribunal affirms the reviewable decision.
BACKGROUND
The Applicant is a 51-year-old citizen of Afghanistan. He first arrived in Australia in 2010 as the holder of a permanent Global Special Humanitarian (subclass 202) visa. He currently holds a permanent five-year Resident Return (subclass 155) visa.
In 2021, the Applicant was found guilty of three counts of Unlawful assault.[1] The Court decided not to record convictions and instead imposed a good behaviour undertaking for 12 months. This expired on 6 May 2022. [2] The Applicant was also required to complete a Men’s Behaviour Change Program.
[1] Exhibit R1, 109.
[2] Ibid 105.
On 22 November 2022, the Applicant lodged an application for Australian citizenship by conferral. In response to a question about whether he had ‘been convicted of, or found guilty of, any offences…in Australia’ the response ‘No’ is entered.[3]
[3] Ibid 36.
On 22 May 2023, the Respondent wrote to the Applicant inviting him to comment on adverse information regarding his 2021 criminal proceeding.[4] Responses were received from the Applicant’s eldest son in May 2023 and from the Applicant’s lawyer in June 2023.
[4] Ibid 96-105.
On 31 October 2023, a delegate of the Minister refused the Applicant’s citizenship application under s 21(2(h) of the Act.[5]
[5] Ibid 148-150.
On 20 November 2023, the Applicant filed his review application with the Tribunal.
At the commencement of the hearing on 2 July 2024, the Respondent advised that consideration was being given to settling the matter by consent. This was based on the premise that judicial findings of guilt against the Applicant could not be considered in determining whether he is of good character under the Act because the Court decided not to record convictions. No consent agreement was provided prior to the hearing. The Tribunal advised it was unaware of any authority that precluded consideration of these judicial findings in the context of a citizenship application. The Respondent sought adjournments until ‘a date after 31 July’ to seek instructions, which Mr Ali did not oppose. The matter was subsequently listed for a resumed hearing on 20 August 2024.
On 16 August 2024, the Respondent emailed the Applicant and Tribunal to advise they now intended to ‘defend the matter’. The following submissions were provided on 20 August 2024 in support of this:
‘We are instructed that on the basis of the High Court cases of Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs and Migrant Services (2024) 98 AJR 475 and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 97 ALJR 488, the Minister accepts that the Tribunal cannot rely on the applicant's finding of guilt without conviction of three charges of "unlawful assault" that were decided in Victorian courts in determining whether he is of good character for the purposes of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act).
This is because of the operation of subsection 8(2) of the Sentencing Act 1991 (Vic) (Sentencing Act) and subsection 85ZR(2) of the Crimes Act 1914 (Cth) (Crimes Act). Subsection 8(2) of the Sentencing Act provides that: "Except as otherwise provided by this or any other Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose". In WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465, in which the Minister withdrew with consent, her Honour Hespe J held that the Minister was correct to accept that in light of subsection 8(2) of the Sentencing Act and the reasoning in Thornton and Lesianawai, the Tribunal erred by taking into account an irrelevant consideration by taking into account the applicant's record of offending which included the three offences for which no conviction was recorded (at [3]). Further, her Honour found that "s 8(2) is properly characterised as a (Victorian) State law under which a person is “in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State” and therefore engages s 85ZR(2)(b)" of the Crimes Act (at [7]).
However, the Minister's position is that the Tribunal can consider the conduct underlying those findings of guilt without conviction in assessing whether the applicant is of good character. The Minister relies on the decision of BOY19 v Minister for Immigration and Border Protection [2019] FCA 574, in which Justice O'Bryan held that good character in section 21(2)(h) of the Citizenship Act involves a broad question of evaluative fact that is not based on the existence of a criminal conduct. In summary, good character refers to the enduring moral qualities of a person; the phrase does not have a fixed and precise content; and the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.
Accordingly, the respondent submits the Tribunal ought not be satisfied as section 21(2)(h) of the Citizenship Act’.
At the resumed hearing on 20 August 2022, Mr Ali advised he had not received the Respondent’s documentary submissions and requested an adjournment to consider these. A week-long adjournment was granted without objection from the Respondent.
At the resumed hearing on 2 September 2024, the Tribunal advised the parties that the substantive hearing would proceed and gave oral reasons, a summary of which follows:
(a)The High Court’s decision in Lesianawai[6] related to a visa cancellation decision under s 501 of the Migration Act 1958 (Cth) (“Migration Act”). A central issue was the treatment of juvenile offending because the applicant in that matter was under 16 years of age when pleading guilty to or being found guilty by the NSW Children’s Court of multiple counts of robbery in company. The Court held that findings of guilt without conviction when an applicant is a minor could not be taken to be a conviction pursuant to ss 85ZR and 85ZS of the Crimes Act 1914 (Cth).
(b)The High Court in Lesianawai referred to the decision in Thornton,[7] which was again in the context a mandatory visa cancellation decision under s 501 of the Migration Act. Relevant sections at [44]-[46] follow:
[44] This contention elides the question of whether the Children Proceedings Act purports to preclude the use of the finding of guilt contemplated by s 14, in all or at least some circumstances and for all or at least some purposes, with the question posed by s 85ZR(2) of the Crimes Act, namely, whether the Children Proceedings Act purports to preclude such a finding of guilt being treated as a conviction in all or at least some circumstances and for all or at least some purposes. In relation to the former, s 15(1) precludes the use of the finding of guilt in criminal proceedings in some, but not all, circumstances and does not impose any restriction on its use for the purposes of making an administrative decision. However, in relation to the latter, the effect of the Children Proceedings Act is that such a finding is not to be treated or taken as a conviction for any purpose unless some other provision of State law specifically provides to that effect. That is sufficient to engage s 85ZR(2).
[45] Under the Youth Justice Act considered in Thornton, a finding of guilt made against a child could not be used in any subsequent proceedings against them as an adult for an offence and could not form part of the criminal history of any adult. Although those restrictions on the use of a finding of guilt were wider than those imposed by s 15 of the Children Proceedings Act, they did not preclude a finding of guilt being used for a purpose, or in a circumstance, analogous to a consideration of whether to cancel a visa. Even so, that did not inhibit the majority judgments in Thornton from concluding that the Minister was precluded from taking into account the respondent’s “youth offending” and the “finding[s] of guilt”.
[46] Similar to Thornton, in this case the delegate was precluded from taking into account so much of the plaintiff’s “youth offending” and “finding[s] of guilt” that related to the offences for which he was sentenced by the Children’s Court prior to his reaching 16 years of age and the fact that he was charged with, or supposedly convicted of, those offences.
[6] Lesianawai v Minister for Immigration, Citizenship and MulticulturalAffairs [2024] HCA 6 – handed down on 6 March 2024 (‘Lesianawai').
[7] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (‘Thornton’).
There is no evidence the Applicant has been convicted of juvenile offending and the circumstances of his case are distinguishable from those in Lesianawai and Thornton. The judicial findings of guilt against him for three counts of unlawful assault are facts before the Tribunal in the context of a citizenship refusal decision. The term ‘good character’, while not defined in the Act, has been interpreted broadly by the Full Court of the Federal Court of Australia: ‘…Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion…’[8] The Tribunal sees no reason to exclude consideration of the judicial findings against the Applicant, irrespective of whether convictions were recorded.
[8] Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128, 142 [60].
The substantive hearing was concluded on 2 September 2024, following which the Tribunal reserved its decision.
LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. To be eligible, a person must meet each of the eight general eligibility requirements under s 21(2) of the Act.
Section 21(2)(h) of the Act requires the Minister to be satisfied that citizenship applicants are of good character. Section 24(1A) of the Act prohibits the Minister (or a person delegated by the Minister under s 53 of the Act) from approving an application unless so satisfied. The assessment of character is at the date of the Tribunal’s decision.[9]
[9] BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39, 40 [3] (O’Bryan J) (‘BOY19’).
Section 52(1)(b) of the Act confers jurisdiction on the Tribunal to review decisions made under s 24 of the Act.
The Tribunal’s decision in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 is often cited for its elaboration on the significance of good character:
‘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.’[10]
[10] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].
Citizenship Policy Statement and Revised Citizenship Procedural Instructions
The Australian Citizenship Policy Statement (“Policy”) (issued 27 November 2020) and the Revised Citizenship Procedural Instructions (“CPIs”) (reissued 26 February 2021) guide decision-makers exercising powers and discharging their functions under the Act. Although such policy is not binding on the Tribunal, decision-makers undertaking merits review should generally apply such policy unless it is unlawful or ‘there are cogent reasons to the contrary.’[11] The Tribunal has not identified any reason why the Policy and CPIs should not be applied in this matter. That said, the Tribunal is mindful of the need to consider the exercise of delegated powers based on the specific circumstances of each case.
[11] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.
Relevant to this application is Citizenship Procedural Instruction 15 - Assessing Good Character under the Citizenship Act (“CPI 15”). CPI 15 refers to good character as relating to the ‘enduring moral qualities’ of an applicant, which draws on the Full Federal Court’s judgement in Irving.[12]
[12] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 425 (Lee J), 431 (Lee J) (‘Irving’); Cited with approval in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (Gleeson CJ and Gummow J), albeit in the context of the Migration Act 1958 (Cth).
More recently, O’Bryan J elaborated in BOY19 about the evaluative reasoning that underlies a determination of whether a person is of good character:
‘First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions…Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship’.[13]
(References removed)
[13] BOY19 (n 8) 51-2 [51].
CPI 15 provides guidance as to the meaning of the term ‘enduring moral qualities’:
The phrase ‘enduring moral qualities’ encompasses the following concepts:
·     characteristics which have endured over a long period of time;

·     distinguishing right from wrong; and

·     behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
CPI 15 provides an inclusive list of characteristics generally expected of a person of good character, noting that ‘as a general proposition, a person who is of good character would:’
·respect and abide by the law in Australia and other countries;

·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds, and pay debts to the Commonwealth);

·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:

ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;

…
Under the heading ‘Community standards’, CPI 15 states that the Preamble to the Act can assist in identifying what the Australian community considers to be proper behaviour when assessing good character:
Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)by pledging loyalty to Australia and its people; and
(b)by sharing their democratic beliefs; and
(c)by respecting their rights and liberties; and
(d)by upholding and obeying the laws of Australia.
Under the heading ‘Weighing information’, CPI 15 sets out how a holistic assessment of a person’s character may be made:
In addition to the general principles of good decision-making set out in CPI 17 – Decision-making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:
·     characterise the nature of any offence or behaviour
·     is the offence serious or minor?
·     did the offence harm other people?
·     who were victims?
·     is there a pattern of behaviour?
·     was it a one off incident?
·     were there extenuating circumstances?
Consider any associations with people or organisations of concern.
Consider any mitigating circumstances:
·     length of time since the offence was committed
·     age at time of offence
·     behaviour since completing prison sentence or obligations to court
·     remorse regarding their offending behaviour
·     community support (referee reports etc)
·     changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.

The requirement for a global assessment of a person’s character has previously been discussed by the Tribunal in Prasad and Minister for Immigration and Ethnic Affairs:
‘…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’.[14]
EVIDENCE
[14] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7].
Documentary evidence
Both parties lodged a Statement of Facts, Issues and Contentions prior to the commencement of the hearing, which the Tribunal has considered. The following documents were taken into evidence:
(a)Documents numbering 236 pages lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);[15]
(b)Four-page Statutory Declaration of the Applicant dated 19 May 2024;[16] and
(c)Two-page undated statement of the Applicant’s wife.[17]
[15] Exhibit R1.
[16] Exhibit A1.
[17] Exhibit A2.
Applicant’s evidence
At the commencement of the hearing the Tribunal explained the procedure to be adopted and confirmed that the sole issue for determination is whether the Tribunal is satisfied at the time of its decision that the Applicant is of good character within the meaning of s 21(2)(h) of the Act. The Tribunal also advised the Applicant about his privilege against self-incrimination and that the Tribunal would draw no negative inference if he declined to answer questions if doing so may tend to incriminate him.
An 11-page Statement of Facts, Issues and Considerations submitted by Mr Ali is summarised as follows (Errors in original; Footnotes deleted):
(a)In refusing the citizenship application, the delegate failed to consider that the Court chose not to enter convictions against the Applicant.
(b)The delegate ‘failed to give appropriate weightage to the finding of the [Court]. Had the Applicant ever committed a serious crime, the sentencing Judge would have sentenced him to undergo imprisonment. The trial court recorded ‘No Conviction’ against the applicant. In our humble submission the applicant cannot be deemed to be a convicted person’.
(c)The delegate ‘failed to take into consideration the mitigating circumstances such as the length of time between the date of offence and the time of application; the applicant’s responsible conduct by expressing his remorse for his conduct; the fact that the applicant rehabilitated himself by completing the Course of Man Behaviour Change program; and finally the age of the applicant at the time the offence was committed’.
(d)The delegate failed ‘to afford proper weightage the length of employment, stable family life and community involvement of the applicant’.
(e)‘The term ‘serious offence’ has not been defined. However, conviction by a Court of law for an offence against an Australian law or a foreign law and sentence to death or a prison sentence of at least 12 months constitutes serious offence’.
(f)The Applicant ‘has taken right steps to mend his character. He apologized to his wife…He completed the course as ordered by the court. Since the day he has been living with his family members. He has also engaged himself in community events and has genuinely tried to mitigate the possible risks to the Australian community by actively helping the community members’.
(g)‘Even if convicted, an applicant may still be said to have demonstrated enduring moral qualities of which good character is demonstrated objectively if a sufficient length of time has lapsed and the applicant has completed his or her community work and rehabilitation programs’.
(h)‘It would be considered that a person has rehabilitated himself or herself if since his or her last offending, he or she has not engaged in any criminal conduct or disrespected or disregarded any of Australian laws or foreign laws…It follows that his or her character has been restored to the required level and credit should be given for maintaining a record without any further convictions (sic) for any offence’.
(i)The Applicant’s conduct does not fall within the meaning of ‘serious offences’, he has ‘lived a clean life’, and except ‘for the single occasions, the applicant has never been involved in any crime. He has never been charged’.
(j)The applicant is ‘highly remorseful for his conduct’, apologized to his wife following the incident, and she continues to support him as a ‘very kind and loving father to his children and also very supportive husband’. His wife submitted in her statement:
‘I declare that my husband is a patient of Blood pressure. I do not deny the possibility that he might have been under the influence of medication on that day and acted out of his character. For, I have never found [him] a person of short temper except for that single occasion.’
(k)The Applicant has undergone rehabilitation through completion of the ‘Motivation for Change’s Program’.
(l)The Applicant has a ‘strong personal and financial connection to Australia through his employment, family connection and community involvement.’
(m)Character references highlight the Applicant’s compassion, integrity, work ethic, strong moral character, honesty, and reliability.
The Tribunal has considered the Applicant’s documentary materials, which include several Statutory Declarations. One states:
‘I am a kind and honest person, I have always treated everyone with respect and kindness. Since I was a child my parents taught me to be a shining example of a truly good character person. With my genuine compassion and unwavering integrity, I effortlessly tried to bring kindness and positivity into every interaction. I have consistently gone above and beyond to help others, whether it's offering a listening ear or lending a helping hand.
My empathy knows no bounds as I actively seek to understand the perspectives and experiences of those around me, fostering a sense of inclusivity and unity. my integrity shines through in my unwavering commitment to honesty and fairness, never compromising my principles for personal gain. My selflessness and dedication to making the world a better place inspire those around me, making me a true human of goodness and an embodiment of what it means to be a good character person.
…I made a mistake in the past but I learnt from my mistake and improved myself to be a good husband, father, brother and a human being. I strongly believe that my application for citizenship should be approved because I possess the qualities and characteristics that exemplify an ideal citizen. Throughout my time as a resident, my respect for the law, adherence to ethical principles, and demonstrated integrity makes me a trustworthy and dependable individual. My genuine appreciation for cultural diversity and my ability to foster inclusivity have positively impacted my family and those around me, fostering a sense of unity and understanding. Additionally, my eagerness to stay informed, engage in constructive dialogue, and exercise my rights as a citizen further demonstrate my readiness to fully participate in the democratic process. With my exemplary qualities and my commitment to upholding the values of citizenship, approving my application would be a testament to my worthiness and potential to make a valuable and lasting contribution to the country.’[18]
[18] Ibid 136-7.
In his most recent Statutory Declaration, the Applicant states in part:
Mitigating Circumstances
I would like to state at the very outset that I am highly remorseful for my abusive behavior. I was under the influence of medication. I was a patient of Blood pressure. I was using the medication for blood pressure. I believe that the influence of the medication may have caused me to loose my temper and to react excessively.
I have also rehabilitated myself. On the recommendation of the court, I completed the Men Behavior Change program and also provided the certificate to the Court.
My wife does not have any concern about my behavior. After the incident, I apologized to my wife who later on made a statement that she did not want to have an order against me and expressed that she did not have any concern about my conduct.
I would like the Tribunal to consider the following reasons as mitigating circumstances and reasons as to why my visa should not be cancelled even if I do not pass the character test (sic):
a.   I pleaded guilty to the Criminal Charges in order to render my genuine remorse about my conduct.
b.   There is a considerable period of time lapsed from the date of the incident. I have now rehabilitated myself and would like the Tribunal to consider the length of time between the date of offence and the date of decision.
c.   I also accepted the consequences of my act. I completed the Men Behavior Change program as ordered by the Court.
d.   I also expressed my remorse to the court during the trial of the criminal charges. The court found my remorse genuine.[19]
(Errors in original.)
[19] Exhibit A1, 3 [19]-[22].
The Applicant adopted Exhibit A1 as true and correct. His oral evidence was given with the assistance of an interpreter in the Dari language. This is summarised as follows:
(a)He married his wife, who the Tribunal will refer to as Ms AA, some 28 years ago and they have five children. Their youngest child was born here and is an Australian citizen. Their oldest child is an adult and applied for citizenship in his own right, which has been granted.
(b)Much of the questioning centred on the Applicant’s pleas of guilty to three charges of unlawful assault against Ms AA.[20] At several points in his evidence, however he claimed that the police responded disproportionately to what occurred: ‘We didn’t have any problems until the police intervened…Based on the law they created such a big issue for us.’ He said Ms AA tried to have her complaint withdrawn but police ‘continued to follow it up – it created more issues for us’.
(c)The Applicant agreed he threw tea at Ms AA but insisted it was cold rather than hot as described in police and other reports.[21] When asked by Ms Lay what caused him to throw tea on his wife irrespective of its temperature, the Applicant stated he ‘didn’t have any bad intention’ but could not explain his conduct. He nevertheless considers this a ‘minor matter between [he] and [his] wife…it wasn’t a serious issue – it was just a misunderstanding’.
(d)The Applicant agreed that during a second incident he threw a pomegranate at Ms AA, insisting this was a joke, not ‘a serious matter’, and ‘a very minor thing.’
(e)The Applicant disagreed that a third incident involved him putting his hands around Ms AA’s neck.[22] He claimed to have only put his hand in front of her mouth and told her: ‘Don’t say anything further – don’t make any further argument.’
(f)The Applicant said that due to an intervention order he was separated from Ms AA and his family for a time before they were again permitted to live together. He attended a 15-week behavioural change program where he ‘learned a lot’, including becoming aware of Australian ‘rules and regulations.’ He came to understand that ‘family violence is negative’, unacceptable in Australia, and should be avoided. He said that his mindset changed after undertaking the behavioural change program, following which he apologised to Ms AA for his conduct.
(g)When asked by Ms Lay about the reference in his Statutory Declaration to high blood pressure as a contextually relevant mitigating factor for his conduct against Ms AA, the Applicant had to be reminded twice to be relevant to the question. He said that he has taken blood pressure medication for a long time, well prior to the assaults against Ms AA. He resiled somewhat from his documentary claim, however, by stating: ‘I don’t believe it was directly related to blood pressure medication, I also have mental health issues.’ When asked why he included the reference to blood pressure, the Applicant responded: ‘This builds up your behaviour and reactions – its mental health problems and physical problems.’ There is no expert medical corroboration for the Applicant’s health claims.
(h)When asked by Ms Lay why he failed to declare his criminal history in his citizenship application,[23] the Applicant said his son helped him complete the form online. He claimed that he answered no to this question because a police officer told him that after his 12-month good behaviour undertaking was completed, he would be ‘cleared’. On that basis he did not think it was necessary to refer to the unlawful assaults.
[20] Ibid 1 [10].
[21] Exhibit R1, 110, 127.
[22] Ibid 111, 127.
[23] Ibid 36.
Evidence of Ms AA
Ms AA adopted Exhibit A2 as her evidence in this proceeding. Her oral evidence was given with the assistance of an interpreter in the Dari language and is summarised as follows:
(a)A recurring feature of Ms AA’s evidence is that she has ‘quite a good relationship and is happy with [her] husband’. She said he is good to her and their children, and they do not have any ‘arguments or problems’.
(b)Ms AA recalled the Applicant throwing tea on her but said the liquid was cold. She also recalled him throwing a pomegranate that struck her bicep and caused bruising, which she photographed.[24]
(c)Ms AA said she could not recall the third incident because of the passage of time. When asked about a report that the Applicant placed his hands on her neck, Ms AA denied this. She claimed he put his hand over her mouth and told her to ‘shut up and don’t say anything anymore’.
(d)Ms AA said the Applicant’s conduct may have been because of high blood pressure. She has noticed positive changes in his conduct since attendance at a behavioural change program because ‘he’s become much better and hasn’t done any bad things since then.’
[24] Ibid 111, 119.
Other evidence
There is material standing to the Applicant’s credit in the form of positive character references and completion of an offence specific course. The weight to be afforded to some references is diminished, however, when authors do not refer to negative aspects of his character, or do so in only general terms, or where the Tribunal has concerns about whether letters were independently authored. A summary of this material follows:
(a)A two-line letter dated 30 May 2023 from the Applicant’s doctor states that he ‘seems to be responsible and dedicated to his family.’ No reference is made to the Applicant’s crimes. The author was not called as a witness and little weight is placed on this very brief and general reference.
(b)A letter from an ethnic community organisation in Victoria dated 11 February 2024 states that the Applicant has played ‘an integral part’ as a volunteer for the ‘last 2-3 years’. This appears to post-date his 2021 Court appearance. The Applicant is noted to be a ‘regular visitor’ who contributes financially and volunteers his time, offering services such as cleaning and other tasks. The Applicant is noted to have an ‘admirable character’, but no reference is made to his crimes. The author was not called as a witness and little weight is placed on this general reference.
(c)A letter dated 4 June 2023 refers to a seven-year business association with the Applicant and states in part:
‘I understand [the Applicant] faced a challenging family situation in 2021, which involved police and court proceedings resulting in him being found guilty of family violence. I personally observed his sincere remorse for his actions and witnessed the immense stress he endured until the matter was resolved.
Considering [the Applicant’s] exceptional character, professional competence, and commendable personal qualities, I wholeheartedly endorse his application for Australian citizenship. I am confident that he will bring immense value to this country and contribute positively to its diverse and vibrant community.’
(d)The author was not called as a witness and could not be cross-examined. Little weight is placed on this general reference, parts of which are comparable to another supportive reference immediately below.
(e)A letter dated 29 May 2023 from the Applicant’s ‘work neighbour’ refers to the Applicant’s criminal matter in very similar terms as the business associate in the letter immediately above:
‘I understand [the Applicant] faced a challenging family situation in 2021, which resulted in police involvement and legal proceedings that ultimately led to his conviction for family violence. From my personal observation, I witnessed [the Applicant] genuinely expressing feelings of guilt and regret for his actions. I saw firsthand how remorseful he was for what he had done, and I am aware of the immense difficulties he endured during that period until the matter was resolved.’
(f)The author was not called as a witness and could not be cross-examined. Little weight is placed on this general reference, including because of its similarity to the supportive reference immediately above, which was purportedly completed independently.
(g)A brief letter from inTouch Multicultural Centre Against Family Violence dated 21 October 2021 refers to the Applicant’s successful completion of the Court-mandated Motivation for Change Program. This involved some weekly one-on-one sessions during unspecified dates ‘in person or via telephone as required’, and 15 online group sessions between 10 July and 16 October 2021. The letter generalises the curriculum to three bullet points. These are somewhat unclear and provide no insight into the Applicant’s performance. The author of the letter was not called as a witness. The Tribunal places little weight on it beyond confirming the Applicant’s completion of this Program.
Contentions of the Respondent
The Tribunal has considered the Respondent’s Statement of Facts, Issues, and Contentions dated 24 April 2024, which is summarised as follows:
(a)The Applicant’s offending is ‘objectively serious and not acceptable to the Australian community in any form, and therefore this should weigh heavily against a finding that [he] is of good character’. The Applicant’s conduct included throwing hot tea over his wife’s arms, chest, and neck during an argument. The Applicant also threw an item that struck Ms AA’s bicep, causing bruising, and is reported to have placed his hands around his wife’s neck for approximately five seconds. During the hearing the Respondent did not challenge the evidence from both the Applicant and his wife that he did not place his hands around Ms AA’s neck, but in the vicinity of her mouth.
(b)The Respondent highlighted that some of the Applicant’s violence against Ms AA occurred in the presence of minor children who had reason to fear for their mother’s safety and welfare. The Department of Families, Fairness and Housing (DFFH) was subsequently involved.
(c)The Applicant was subjected to an intervention order for 12 months, which is ‘a relatively long period to have obligations to the Court and is indicative of the seriousness’ of the offending.
(d)In terms of rehabilitation, the Applicant has provided insufficient detail about the rehabilitative program he refers to or what he learned from it.
(e)In terms of character references, three acknowledge the Applicant's offending, provide support for his character, and refer to him as a responsible and dedicated family man.
(f)The applicant did not disclose his criminal history on his citizenship application by responding ‘no’ to the question: '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)?'
(g)Given that the Applicant’s obligation to the Court only ended in August 2022, ‘the Tribunal should not be satisfied that sufficient time has elapsed since the applicant's offending to establish a pattern of good behaviour’.
Closing submissions

In closing submissions Ms Lay conceded that the Applicant’s explanation for failing to declare his criminal conduct in his citizenship application was plausible but felt that other aspects of his evidence sought to downplay the three incidents leading to findings of guilt for unlawful assault. She said it remains unclear what precipitated the Applicant’s conduct and his claims that police created problems for his family by pursuing an intervention order and criminal charges cuts across his rehabilitative claims. Ms Lay said no weight should be placed on the Applicant’s submissions about high blood pressure as contextually relevant to his crimes.
Mr Ali reinforced that the Applicant is a person of good character because convictions were not recorded, significant time has passed since the incidents calling his character into question, and he has been rehabilitated through attendance on a behavioural change program. It was also emphasised that the Applicant pleaded guilty at the earliest opportunity, apologised to Ms AA, is employed, supports his family, undertakes volunteer work, and has ‘adopted Australian values’.
CONSIDERATION
The Applicant’s case centres on the contention that he has demonstrated positive personal conduct since the unlawful assaults, such that he is of good character at the time of the Tribunal’s decision.
The Applicant has findings of guilt against him for three family violence offences against Ms AA on 18 April 2023 and 1 May 2021, in circumstances where one of their children called police. He was subjected to an intervention order with Ms AA and their children listed as protected persons. His obligation to the Court was only discharged in May 2022, which is just over two years ago. The Tribunal finds this is serious offending that raises significant character concerns.
Violence against women and girls is devastatingly pervasive in our community and all too frequently committed by an intimate male partner. Such conduct reflects an unacceptable violation of the personal security and respect women should expect. Even one act of family violence can have enduring physical or psychological consequences. This is only made worse when children observe or are aware of such conduct.
The Tribunal’s concerns are heightened by references in the evidence to the Applicant’s high blood pressure as contextually relevant to his crimes. The Tribunal also notes Ms AA’s claim that the Applicant ‘never meant to harm [her]’, but rejects both claims. That is because it is impermissible to entertain evidence conflicting with or seeking to impugn the essential elements of judicial findings.[25] It is also well settled in Australian law that a plea of guilty constitutes acceptance of all elements of the offences pleaded to.[26] Moreover, in considering evidence from family members, the Tribunal is mindful they often provide the best possible perspective in relation to conduct, which other members of Australian society might consider unacceptable. Care must therefore be taken about the weight placed on references from family members, including where they are victims of family violence.
[25] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244–45; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [89] (Bromberg J).
[26] Maxwell v R (1996) 184 CLR 501 (Dawson and McHugh JJ).
When lodging his citizenship application in November 2022, the Applicant failed to disclose his criminal matter when responding ‘No’ to the question:
'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)?'[27]
[27] Exhibit R1, 36.
The Tribunal accepts this may have occurred because of language issues and the Applicant being under a misapprehension that he would not have a criminal record upon the expiration of his 12-month good behaviour undertaking to the Court.[28]
[28] Ibid 136.
The Tribunal is concerned that the remorse expressed by the Applicant was predominantly directed at the negative consequences of his behaviour on his citizenship prospects. His repeated reference to multiple findings of guilt for family violence as a ‘mistake’,[29] assertion that he has ‘always treated everyone with respect and kindness’,[30] and misguided attempt to blame blood pressure medication[31] or uncorroborated mental health issues, convey limited insight. The Tribunal is also concerned about his efforts to portray the pomegranate incident as attempted humour, in circumstances where one of the counts of unlawful assault he pleaded guilty to relates to this incident. It is clear from Ms AA’s evidence she did not consider it a joke. The Tribunal is also concerned by the Applicant’s efforts to characterise these incidents as ‘minor matters’ or ‘misunderstandings’, and to shift blame onto police. This came across as trying to downplay his culpability, which cuts across his claims about insight, remorse, and rehabilitative progress. The learnings he conveyed from the behavioural change course also came across as general and superficial.
[29] Ibid 5, 137, 140 [6].
[30] Ibid 136.
[31] Exhibit A1, 3 [19].
CONCLUSION
The Tribunal has considered and given appropriate weight to the personal factors positive to the Applicant’s character. Weighed against that, however, are findings of guilt for three counts of family violence, for which the Applicant’s obligation to the Court ended just over two years ago. It is acknowledged the Applicant completed a Court-mandated, offence-specific rehabilitation program and may yet redeem his character with a longer period of law-abiding behaviour. The Tribunal’s concerns are heightened, however, by aspects of his current evidence that seek to downplay his own role.
Insufficient time has passed for the Tribunal to be satisfied the Applicant is currently of good character as required by s 21(2)(h) of the Act.
Refusal of the Applicant’s citizenship application does not affect his visa status nor deprive him of any benefits he may currently be entitled to. He is also not prevented from making a new citizenship application when his claims regarding the good character requirement are more persuasive.
DECISION
It follows that the Tribunal affirms the decision under review.

51.

I certify that the preceding fifty (50) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 11 September 2023

Date of hearing: 2 July, 20 August, and 2 September 2024

Advocate for the Applicant: Mr Ramzan Ali

Advocate for the Respondent: Ms Felicidade Lay

Solicitors for the Respondent: Minter Ellison Lawyers

Date of hearing:	2 July, 20 August, and 2 September 2024
Advocate for the Applicant:	Mr Ramzan Ali
Advocate for the Respondent:	Ms Felicidade Lay
Solicitors for the Respondent:	Minter Ellison Lawyers