XMNF and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

The Administrative Appeals Tribunal considered an application for Australian citizenship by conferral made by a citizen of Afghanistan. The applicant had been found guilty of three counts of unlawful assault in 2021, for which no convictions were recorded, and he had failed to disclose these findings in his citizenship application. The delegate of the Minister refused the application under section 21(2)(h) of the *Australian Citizenship Act 2007* (Cth) on the basis that the applicant was not of good character. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether it was satisfied that the applicant was of good character at the time of the decision, within the meaning of section 21(2)(h) of the *Australian Citizenship Act 2007*. This involved determining whether the findings of guilt for the assaults, despite no convictions being recorded, could be considered in assessing the applicant's good character, and if so, how the underlying conduct should be weighed against other evidence of the applicant's character and rehabilitation.

The Tribunal affirmed the delegate's decision, finding that it was not satisfied the applicant was of good character. While acknowledging the High Court decisions in *Lesianawai* and *Thornton*, which established that findings of guilt without conviction, particularly in the context of juvenile offending, may not be treated as a conviction for certain purposes and can engage provisions like section 85ZR(2) of the *Crimes Act 1914* (Cth), the Tribunal found these authorities did not preclude consideration of the underlying conduct. The Tribunal reasoned that the assessment of good character under section 21(2)(h) involves a broad evaluative judgment of a person's enduring moral qualities, not solely the existence of a formal conviction. The applicant's failure to disclose the findings of guilt in his application was a significant factor in this assessment, alongside the nature of the offending conduct itself. Despite evidence of rehabilitation, including completing a behaviour change program and maintaining stable employment and family life, the Tribunal concluded that these factors did not outweigh the seriousness of the undisclosed offending and the applicant's lack of candour.

The Tribunal affirmed the decision under review, meaning the applicant's application for Australian citizenship by conferral was refused. The Tribunal noted that this refusal did not affect the applicant's visa status and that he would be able to make a new application in the future if his claims regarding good character became more persuasive.