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

[2021] AATA 162

XTFX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 162 (10 February 2021)

Division:GENERAL DIVISION

File Number:2019/6621          

Re:XTFX  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member K. Parker

Date:10 February 2021

Place:Melbourne

The Tribunal affirms the decision under review.

.........[sgd]...............................................................

Member K. Parker

Catchwords

CITIZENSHIP – refusal of application for citizenship by conferral – whether Tribunal is satisfied that Applicant “of good character” – Applicant convicted of two offences committed in 2011 and sentenced to imprisonment for 18 months – no further convictions recorded since 2011 – consideration of time that has elapsed since criminal offending and other indicators as to the Applicant’s character – decision under review affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Zheng v Minister for Immigration and Citizenship [2011] AATA 304

Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326

Secondary Materials

Australian Citizenship Policy Statement, issued by the Department of Immigration and Border Protection on 27 November 2020
Citizenship Policy, issued by the Department on 1 June 2016
Revised Citizenship Procedural Instructions, issued on 27 November 2020

REASONS FOR DECISION

Member K. Parker

10 February 2021

INTRODUCTION

1. The Applicant, XTFX, was born in Vietnam. He arrived in Australia in 1 September 2007.

2. On 17 February 2012, XTFX was convicted of two criminal offences committed in September 2011 and sentenced to 18 months’ imprisonment. He served a nine-year non-parole period in prison for these offences.[1] He was released from prison in March 2013 and has not been convicted of any further offences since.

   [1]  Refer Supplementary T-Documents as referred to in paragraph [8] of these Reasons for Decision, at ST5/49.

3. XTFX holds a Permanent Spouse Visa (subclass 801) which was granted to him on 27 January 2015.

4. XTFX has one young child (the Child). The Child resides in the same city as XTFX. XTFX is separated from the mother of the Child. He lives in a share house with other persons due to financial considerations. He sees the Child regularly but does not share the care of the Child with the mother because of his present living circumstances.

5. On 14 November 2016 XTFX applied to become an Australian citizen. His application was refused on the basis that XTFX did not meet the general residency requirement as a result of having been confined in prison in the four-year period preceding his 2016 application.

6. XTFX made a second application for conferral of citizenship on 3 April 2017 (the Citizenship Application). When assessing the Citizenship Application, the delegate of the Respondent was not satisfied that XTFX was “of good character” as required under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). On 16 September 2019, the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) refused the grant of Australian citizenship by conferral to XTFX under s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) (the Decision Under Review).

7. On 12 October 2019, XTFX lodged an application for review by the General Division of the Administrative Appeals Tribunal (the Tribunal) of the Decision Under Review.

8. Three sets of documents have been lodged by the Minister with the Tribunal under ss 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (Cth). They will be referred to as the T-Documents, Supplementary T-Documents and Further Supplementary T-Documents. XTFX lodged documentary evidence. Both parties lodged written submissions in the form of Statements of Facts, Issues and Contentions (SFICs). A hearing took place by video due to the Covid restrictions. The Tribunal made Directions for further evidence and submissions to be lodged after the conclusion of the hearing, due to matters that arose during the hearing and due to changes in policy guidance. The Tribunal has taken this material lodged by both parties into consideration when making this decision.

9. For the reasons set out below, the Tribunal affirms the Decision Under Review. This means that XTFX’s application to the Tribunal is unsuccessful. XTFX is at liberty to reapply again for citizenship by conferral should he wish to do so.

   LEGISLATION

10. Section 24(1A) of the Act provides that the Respondent must not approve a person becoming an Australian citizen unless they have met the eligibility requirements under s 21(2) of the Act. For a person to meet the eligibility requirements, the Minister must be satisfied that he or she is “of good character” at the time they make their citizenship application.  The phrase “of good character” appearing in s 21(2)(h) of the Act is not defined by the Act.

11. Section 21(2) of the Act is reproduced below (emphasis added):

    21 Application and eligibility for citizenship

    (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    (a)       is aged 18 or over at the time the person made the application; and

    (b)       is a permanent resident:

    (i) at the time the person made the application; and

    (ii) at the time of the Minister’s decision on the application; and

    (c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

    (d)       understands the nature of an application under subsection (1); and

    (e)       possesses a basic knowledge of the English language; and

    (f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and

    (g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and

    (h) is of good character at the time of the Minister’s decision on the application.

    POLICY GUIDANCE

12. Policy guidance is provided in relation to the interpretation and application of the phrase “of good character” in s 21(2)(h) of the Act. At the time of the hearing, such policy guidance was contained in the Citizenship Policy, as supplemented by the Revised Citizenship Procedural Instructions (CPIs).

13. Following the hearing, and before the Tribunal handed down this Decision, the Minister’s representative informed the Tribunal that on 27 November 2020, the Citizenship Policy was revoked and replaced with the Australian Citizenship Policy Statement (ACPS) and that the CPIs continued to apply. The Tribunal accepted the ACPS document submitted by the Minister and made directions to provide for an opportunity for the parties to make further written submissions in respect of the ACPS. Further written submissions were lodged and the Tribunal has considered them.

14. In respect of the good character requirements, the ACPS goes no further than to reflect the provisions in the Act and to refer to the policy guidance provided in the CPIs. In that regard, CPI 15 deals with the good character requirement in the context of citizenship applications. Relevant extracts from the CPI 15 are contained in Appendix 1 to these Reasons for Decision and will be referred to in detail below under the heading ‘Consideration’.

    ISSUES

15. The issue for determination in this application is whether the Tribunal is satisfied that XTFX was “of good character” at the time he made his Citizenship Application, as required by s 21(2)(h) of the Act.

    EVIDENCE

    XTFX’s written submissions

16. XTFX was represented by Mr Ross Ahmadzai of Crystal Migration. Mr Ahmadzai lodged written submissions on XTFX’s behalf including submissions dated 14 May 2020. In those written submissions, Mr Ahmadzai contended as follows:

    (a)XTFX takes his responsibilities as a parent “very seriously” and this is evidenced by the child support payments he had made;

    (b)XTFX is fully involved in his Child’s life;

    (c)XTFX’s Child resides in Australia and this should weigh in favour of citizenship being granted to him;

    (d)it is in the best interests of the Child to be raised in Australia by parents who are Australian citizens to ensure that the Child’s development and basic needs are met;

    (e)becoming an Australian citizen would allow XTFX to fully integrate into Australian society and create opportunities which may only be available to Australian citizens, as well as to continue to be involved in his Child’s life as a father figure;

    (f)XTFX is a law-abiding person, a regular contributor to the Smith Family Organisation, and he also contributes to the UNHCR;

    (g)XTFX has not been involved in conduct of the kind referred to in the Citizenship Policy which would suggest that he is not “of good character”;[2]

    (h)XTFX has not engaged in consistent, repeated misbehaviour or misconduct or crime against children and he does not have a criminal record overseas;

    (i)XTFX has spent 13 years in Australia and has developed close and personal ties with Australia, he is currently employed, and has integrated into Australia’s society and culture; and

    (j)XTFX is remorseful.

    [2] Refer bottom of page 5 and top of page 6 of written submission by Crystal Migration dated 14 May 2020.

    XTFX’s statutory declaration

17. XTFX made a statutory declaration on 14 May 2020. XTFX’s stated occupation is “nail technician” and that he lived in a Melbourne suburb. XTFX stated as follows:

    (a)he has not committed any other offence while in Australia after “mistakenly” committing the serious offence in 2012;

    (b)between 2009 and 2011 he studied and attained the qualification of Diploma of Hospitality at Academia International in Melbourne;

    (c)he was unable to find work in the hospitality field and started offering services on contract as a handyman between 2015 and 2016;

    (d)in 2017, he commenced part-time work as a nail manicurist and has developed an interest in the beauty industry, so he is planning to spend his time “getting the skills on the job”;

    (e)in 2018 he found a further job opportunity at a different nail salon working part-time. While doing this work, he has continued to offer services as a handyman to obtain additional income to support his family;

    (f)his ex-wife was not happy with the work that XTFX was doing and it caused disagreement between them and they decided to separate. He said they divorced after six years of living together and have maintained a good relationship;

    (g)he continues to pay child support for the Child and when the Child, or the Child’s mother, needs XTFX to do anything, he puts everything aside to do so;

    (h)his life “has since been working nonstop earning money to help [the Child’s Mother] raise [the Child] and also to pay back all our financial commitments such as personal loans to our friends, credit cards to the banks”; and

    (i)he has not applied for support from the government for many years because he knows he can work and support himself and his family.

18. Regarding XTFX’s studies while in Australia, the Tribunal notes the following evidence lodged with the Tribunal:

    (a)Letter of Completion issued by Academia International certifying that XTFX had completed a Certificate III in Hospitality (Commercial Cookery) on 23 December 2009;[3]

    (b)Certificates issued by Academia International on 1 April 2010 certifying that XTFX had fulfilled the requirements for a Food Handlers Certificate and Food Safety Supervisors Certificate;[4]

    (c)Certificate issued by Academia International on 19 December 2010 certifying that XTFX had fulfilled the requirements for a Diploma of Hospitality Management; and

    (d)Letter of offer from Carrick Institute of Education to commence a Bachelor of Business (Hospitality and Tourism Management) on 18 July 2011. XTFX was unable to commence this degree due to the prison sentence he received for the two offences.

    [3] Refer page 196 of the Minister’s Tender Bundle.

    [4] Refer pages 194 and 195 of the Minister’s Tender Bundle.

19. Regarding the commission of the criminal offences in 2011, XTFX states as follows in his statutory declaration:

    Looking back the years when I first came to Australia, lonely and without any family guidance, I turned my friendship to a wrong group of friends. Those friends were completely different from my good friends who have been now with me, they are all supporting me from bad to good time.

    Not a single day that I do not think about the time I have spent in prison and how I feel so grateful to the Australian government who has given me a second chance to prove that I am a person of good character.

    I am sorry for my actions in the year 2012. I was young and had no life experience. Since my bad experience, I did not do any other criminal activity. I have lived in Australia for more than 10 years. I am so proud to live here, a country filled of human touch and where I call Australia my home. I have my friends, my family and my job here. For many years, seeing people who become Australian citizen, I find it is a great honour and I always wish that one day, it will be my turn. I will proudly make the pledge of commitments to Australia and I sincere promise that I will uphold the law, be a good citizen at all times.

    Child support payments made to the Child

20. Documents were produced to the Tribunal evidencing child support payments made by XTFX on 20 November 2019, 27 November 2019, 4 December 2019, 18 December 2019, 25 December 2019, 11 March 2020 and 30 March 2020. All except one of those payments were $118.45.[5]

    [5] Refer Annexure 2 to the [XTFX]’s SFIC.

    Charitable donations made by XTFX

21. Other documents were produced to the Tribunal which evidenced that:

    (a)on 4 April 2020, XTFX made a single gift donation to The UN Refugee Agency Australia for UNHCR;[6] and

    (b)on 5 April 2020, XTFX became a “sponsor” of a disadvantaged Australian child through The Smith Family and that he made two monthly payments to The Smith Family of $52 in April 2020 and May 2020.[7]

    [6] Refer Annexure 4 to XTFX’s SFIC.

    [7] Refer Annexure 3.1 to 3.3 of XTFX’s SFIC.

    Information relating to the criminal offences

22. The Minister summoned documents from Victoria Police in relation to the criminal offences committed by XTFX and they were lodged with the Tribunal (Further Supplementary T-documents).[8] These records show that XTFX was convicted of the following offences on 17 February 2012, for which he received the following sentences:[9]

    (a)“Cult Narc Plant Comm Qty – Cannabis” – 18 Months Imprisonment (with a non-parole period of 9 months); and

    (b)“Deal Property Suspected Proceed of Crime” – Convicted and Fined $400.

    [8] Refer Further Supplementary T-Documents in Respondent’s Tender Bundle at page 255.

    [9] Ibid at page 259.

23. The Police Summary provided a description of the incident.[10] In summary, the Police executed a search warrant in the middle of night at a house in a Melbourne suburb. XTFX answered the door. In the house, the Police located a sizeable hydroponic cannabis crop growing in five rooms of the house under lights and with a watering system attached. The crop comprised 134 plants with a total plant weight of about 50 kilograms. An illegal electrical by-pass was being used to steal electricity to power the lighting and other equipment. XTFX was interviewed by Police and made admissions to cultivating cannabis between 30 June 2011 and September 2011, and that he had been paid $20,000 by an unknown Vietnamese male to live at the property and to care for the plants. XTFX told Police he used the money he had received to cover his day-to-day living expenses and to pay for debts and school fees.

    [10] Ibid at page 264.

24. XTFX agreed to be interviewed by the Police after his arrest. The transcript of this evidence is before the Tribunal. The transcript records that XTFX told the Police that equipment had been set up in the house to grow plants. When asked what he meant by “plant”, XTFX answered “cannabi”. XTFX told the Police he slept near the kitchen and the living room. When asked who had set up the rooms, he told the Police that he had “set it up”.[11] He said, “The first month I set up the – the small room to – to grow small plants”.

    [11] Ibid at page 320.

25. During this interview, XTFX was asked what the purpose was of growing the cannabis in the house. He said it was “Temporary. Just to sell it.”. When asked whether he sold the cannabis himself, he answered “Yeah. Yes”.[12] But then he made a statement later in the interview to the effect that he did not know how much he was going to sell the cannabis for because he did not know who he was going to sell it to yet. When asked how much money he would get for the cannabis, XTFX said “$20,000 or something like that”.[13]

    [12] Ibid at page 327.

    [13] Ibid at page 331.

26. XTFX told the Police that he bought the equipment in the house (the shades and the power transformer). When asked how he learnt how to set up the equipment, XTFX answered: “Heard from other people and reading newspaper”.

27. When asked whether he realised that it was illegal to cultivate and possess cannabis in Victoria he answered: “I sort of know briefly but I don’t know the details of the law. I only read on the newspaper”.[14] Then he stated that he was not sure [if it was illegal to grow and cultivate cannabis]. When asked if he had a reason for cultivating cannabis, he said, “I just owe money to pay for the school fees” and then he said he had “no reason”. He indicated to the Police during that the interview that he had been studying Hospitality for 11 weeks.

    [14] Ibid at page 331.

28. XTFX was charged by the Police. XTFX was cooperative throughout this process. He agreed to provide the Police with a saliva sample when requested.

    Other entries in XTFX’s criminal record in Australia

29. A National Police Certificate dated 15 August 2020 showing all disclosable court outcomes for XTFX was before the Tribunal. This certificate records two earlier court outcomes in 1996 and 1999, as follows:[15]

    (a)Sell, Purchase Or Possess Fish Taken in Contravention of Act, Elizabeth Magistrates Court, 7 August 1996, Convicted, Fined $300; and

    (b)Aid And Abet Illegal Fishing, Elizabeth Magistrates Court, 15 December 1999 – Proved without conviction. No further penalty imposed.

    [15] Refer Supplementary T-Documents ST3/16.

30. XTFX disputed the accuracy of these two additional entries. His former migration agent representative pointed out that XTFX was not present in Australia at the time of those convictions and only first arrived in Australia in 2007. This is consistent with the fact that XTFX was a minor and only about ten years old at the time that those entries were made. A subsequent criminal record issued by the Australian Criminal Intelligence Commission in 2018 shows only the two offences for which he was convicted in 2012.[16]

    [16] Ibid at ST8/74 & 75.

31. The Tribunal is satisfied that these two earlier entries in 1996 and 1999 were an administrative error and has disregarded them.

    No criminal record in home country

32. A search was undertaken to establish whether XTFX had a criminal record in his home country of Vietnam. The Tribunal notes from the Vietnamese criminal record dated 25 May 2012 that XTFX was recorded as having no criminal record in Vietnam.[17]

    [17] Ibid at ST5/51.

    Previous consideration by Department whether to refuse his application for a bridging visa

33. Following the conviction, the Department undertook a consideration of whether to refuse XTFX’s application at that time for a bridging E (Class WE) visa under s 501(1) on character ground. In XTFX’s response to the Department, which was prepared by a migration agent representing him at that time, XTFX provided the following account of the context within which his criminal offending in 2011 occurred:

    [XTFX] arrived in Australia on a subclass 573 Student visa. Since arriving in a new country he had been largely unaware that the time was approaching to lodge a visa extension application

    Unfortunately, he had only come to learn of this one day before the due date. [XTFX] also came to realise that with the lodgement of his visa extension, he was required to provide evidence of funds, equivalent to $30,000 AUD

    Sadly, [XTFX]’s parents’ business in Vietnam had suffered immensely in the previous year and, as a result, they were unable to support him financially at the time

    [XTFX] began to feel extremely anxious and overwhelmed with this situation. He wanted to remain in Australia to complete his studies, but was unable to provide any evidence of the required amount.

    After speaking to his friends, they referred him to people they knew who would ostensibly be able to quickly lend him the money

    Immediately after providing them with his driver’s licence and some other forms of identification, [XTFX] was given $30,000 AUD

    Unbeknownst to [XTFX], his identification had been utilised to rent a property for the purpose of cultivating narcotic plants

    A few months later, after the lease had been signed, [XTFX] was asked to move into the house for three months and was told that the loan of $30,000 AUD would be completely erased and he would be free of debt. He felt relived knowing that he was able to provide evidence of funds to remain in Australia to study. Sadly, as a result of naivety, [XTFX] felt he had no choice but to accept this offer as he was being subjected to abuse. Regrettably, [XTFX] is now paying the penalty for his unlawful behaviour. He also had no family support at the time, and was alone in a new country.

1. On 18 September 2012, a delegate of the Minister decided not to exercise their discretion to refuse his visa application, but he was issued with a warning not to engage in any further conduct that might bring him within the scope of s 501.[18]

   [18] Refer letter from Department to XTFX dated 18 September 2012 at Supplementary T-Documents ST6.

   Character witnesses

2. XTFX lodged statutory declarations by four character witnesses in support of his application.

3. The first statutory declaration (undated) was made by Friend P who lives in Melbourne and works as a software developer. Friend P was also called as a witness at the hearing. In her statement, she attested to XTFX’s good character as follows (emphasis added):

   I am pleased to write this letter on behalf of [XTFX]. I have known [XTFX] in Australia for almost 10 years, where we have maintained a close relationship. First time I met [XTFX] in Australia was 2011, when I came here to study and stayed in a same house with his friends. He has always been a brother figure to me in many ways. From my own perspective, [XTFX] is always a very kind, generous and supportive friend. I remember in my last year at [University] during exam period, I was stressed and experienced financial difficulty as for some reasons funds from my parents were delayed. So, I turned to [XTFX] for help, and without hesitation, he lent me the money I needed and encouraged me through the challenging time. I was told [XTFX] had made a regretful mistake and he was imprisoned because of his offence. However, after being released, I truly believed he had learnt a great lesson from the mistake and has become a law-abiding citizen. Despite the mistake, I believe [XTFX] is a kind and truthful person by nature. He often told me how grateful he is for being part of community where he lives and always eager to contribute to the community whenever and wherever he has an opportunity to do so. I’m considering myself very lucky to have a friend like him and I’d like to take this chance to wish him a fair judgment from Australian government about his characters.

4. The second statutory declaration dated 14 May 2020, was provided by Friend TMP, a nail manicurist who lives in Melbourne. Friend TMP states that she has known XTFX for six years and that he was a friend of the family. Friend TMP states that she caught up with him socially and that he was a “very kind and responsible man, family oriented”. Friend TMP attests to XTFX liking to help others both emotionally and financially if he could; and that he had told her that this was because he had experienced his own difficulties when he first came to Australia. Friend TMP states that XTFX had appreciated the chance he has to prove he is a good person living in the Australian community. She said she was happy to be his friend and she strongly believed that he was a person of good character.

5. The third statutory declaration dated 14 May 2020 was made by Friend PTL, the owner of a nail salon. Friend PTL states that he had known XTFX for 11 years in various capacities and that they used to live together when he came to Australia to study. Friend PTL states that XTFX has worked hard to prove to be a better person and that he is a well-organised employee who helped others. Friend PTL said he was one of his most trusted employees and he always tried to provide the best customer service. Friend PTL states that XTFX had expressed his determination to respect and abide by the law in Australia and that he strongly believed him to be a person of good character.

6. The fourth statutory declaration dated 13 May 2020 was made by Friend TLT, a business owner based in Melbourne. Friend TLT said he had known XTFX for five years and that XTFX worked for him for two years at his nail salon. He described XTFX as a person of good character and that “he is very dynamic, close and responsibility to other staffs and also in all task. He always goes to work on time and he has never complained about anything. In particular, I have never heard or received any bad feedback about [XTFX] from other staff members or customers”. Friend TLT mentioned he was aware that XTFX might have had some bad experience in the past. However, since he had known him until the present time, XTFX was a law-abiding citizen and had not broken any laws. Friend TLT states that he had seen XTFX helping people who were in need and that XTFX had told him he was looking for charity work “to contribute in order to pay back what he has received throughout the years he lives in the Australian community”.

7. A typed unsigned statement written up in the name of XTFX’s ex-wife and mother of the Child, dated 12 May 2020, was lodged with the Tribunal. XTFX’s ex-wife was not called as a witness, nor present at the hearing. After the hearing, XTFX lodged a version of this statement signed by XTFX’s ex-wife. The Tribunal has taken this statement into account and accepts the evidence given by the ex-wife speaking to XTFX’s good character. The Tribunal has little doubt that XTFX has been a dedicated father to the Child. 

   Volunteer work at a Buddhist temple

8. At the hearing, XTFX gave evidence that he had undertaken volunteer work at a Buddhist temple. The Tribunal sought further information about this volunteer work.

9. After the hearing, XTFX lodged a letter dated 17 September 2020 by a monk at the Buddhist temple confirming that XTFX had “been contributing his time and effort in assisting the temple such as cleaning the floor, cleaning dishes in the kitchen” at their special events; and that he had done so since 2013 up until the introduction of the Covid restrictions. The monk described XTFX as “very helpful and always polite to all guests who attended the Temple”. The monk stated that he fully supported XTFX’s citizenship application. The Tribunal notes that the monk’s letter did not make any reference to XTFX’s history of criminal offending. Accordingly, while the Tribunal considers that XTFX volunteer work is commendable, there was a limit to how much weight the Tribunal was prepared to place on this character evidence given by the monk.

   Paid employment

10. At the hearing, XTFX gave evidence that he was employed at a beauty salon (Salon A). An Australian Business Register search was lodged with the Tribunal showing that the company which owned Salon A had been in registered from October 2017. XTFX lodged an Australian Taxation Office Notice of assessment for the year ending 30 June 2019 which recorded that his taxable income was $24,960. An ATO income statement was also lodged in respect of XTFX recording “PAYG withholding” of $2,112, gross payments of $14,625 and Other Allowances of $9.000. The Tribunal finds that XTFX was employed by Salon A during at least the 2018/2019 financial year and that his income was declared and that he paid tax on such income. XTFX’s bank account lodged with the Tribunal seem to show weekly deposited monetary amounts from Salon A in the sum of about $336.

    Further evidence given by XTFX at the hearing

11. At the hearing, Mr Ahmadzai informed the Tribunal that XTFX had disclosed his criminal history when applying for 820 and 808 visas and that those visa applications were not refused. Mr Ahmadzai contends that the Tribunal should consider several factors when making its decision upon review including the enduring moral qualities of XTFX’s the length of time since his criminal offending, his background circumstances and that XTFX fully appreciates the gravity of the offence. Mr Ahmadzai invited the Tribunal to take into consideration the fact that XTFX was employed, paid child support and that he had not committed any further offences since 2011.

12. Regarding the offences, Mr Ahmadzai pointed out to the Tribunal that XTFX was involved in cultivating cannabis, but he did not know what the plants were, having just arrived in Australia from Vietnam at that time. He claimed they did not have cannabis in Vietnam. Mr Ahmadzai said that XTFX did not know who owned the house in which the cannabis was growing and that he was told to work there and water the plants. Mr Ahmadzai explained that XTFX met someone in the Vietnamese community when he needed money for school fees, and they helped him by giving him a job and paid him a couple of hundred dollars each week. Mr Ahmadzai said XTFX was shocked when he found out what he was doing was illegal after he was arrested. Mr Ahmadzai said that XTFX pleaded guilty to the two offences of which he was convicted. He confirmed that no one else was charged in relation to the cultivation of the cannabis at the house.

13. Under cross-examination, XTFX claimed not to know about the electricity bypass set up in the house. He also claimed not to know what type of plants he was cultivating until he was in remand. This is inconsistent with XTFX’s answers to questions given during the Police interview following his arrest. He was asked what type of plants were in the house and he was able to provide an answer – see paragraph [24] above. This was put to XTFX during cross-examination and he admitted that he knew what type of plants they were, but he said he did not know the harmful effects of the plants. He said he thought a cannabis plant was a normal plant like a tomato plant. XTFX was asked to explain why it was being grown in a house if it was a normal plant, to which he replied that he thought it might be like plants grown in a glasshouse. The Tribunal does not accept this explanation and considers that XTFX was always aware that his involvement in cultivating and growing the cannabis plants was an illegal activity for which he was receiving significant remuneration.

14. XTFX said he had “accepted everything” [put to him by the Police] because he was “so shocked”. He said that he did not set up all the equipment. When asked why he had told the Police during the interview that he had done so, he responded that he was “so shocked and scared” and that he “just said everything they say”. XTFX said he might have misunderstood the question. He told the Tribunal that the house was empty, but it had all the equipment in it.

15. XTFX said that his boss had told him to admit to everything. XTFX told the Tribunal that he did not tell the Police about this because he was “scared of vengeance” and that his boss would hurt his family. It was put to XTFX for a second time that he had explained to the Police how the house was set up.[19] XTFX responded that he had told the Police what was in the house at that stage and that he could not tell them about his boss because of the “harmful terrible effect to family”. When it was put to XTFX during cross-examination that he had lied to the Police when describing how the house was set up, he said he did not lie and had “just described what it was”.  XTFX confirmed that he had not set up the house and that he had admitted what the Police had put to him because he was so scared because of the “effect on family”.

    [19] Refer page 320 of the Minister’s Tender Bundle at line 132.

16. XTFX was asked during cross-examination whether he had sold any of the cannabis. He said he did not know anything about selling it. When asked why he had told the Police that he sold the cannabis, he did not provide a substantive response other than to say he had admitted to doing so.

17. XTFX told the Tribunal that he needed the money he was paid for cultivating the cannabis for fees for university.

18. XTFX said he had lived in Vietnam until the age of 21 and had not committed any offences there. When asked whether he knew about the serious penalties for growing cannabis, XTFX said he did not know anything about growing cannabis in his area of Vietnam. He claimed that in Vietnam they did not have that kind of plant and he did not know about cannabis cultivation.  

19. When asked about the donations made by XTFX to charitable organisations referred to in paragraph [21], he told the Tribunal that he had not made such donations previously because he could not afford to do so. XTFX was asked who had given him the idea to make the donations. He answered that it was his solicitor who had recommended it to him for the purpose of the application, but that it was also his wish to make those donations when he had spoken to his friends.

20. The Tribunal received additional submissions from both parties after the hearing. In Shi v Migration Agents Registration Authority [2008] HCA 31 (Shi) the High Court held that the Administrative Appeals Tribunal, when reviewing a decision, is entitled to and should take into account information about conduct and events that occurred after the date of the decision under review. As such, the Tribunal has taken into consideration the new policy guidance issued by the Department. As mentioned above, this new guidance did not add anything new of substance to the guidance provided previously, as to how the phrase “of good character” as it appeared in the Act, should be interpreted in this type of case. For this reason, the Tribunal’s decision in this application does not turn on the contents of the new policy.  

    CONSIDERATION

21. This case was not straight forward and the Tribunal has given much deliberation, after considering the policy guidance, as to whether the Tribunal could be satisfied that XTFX is “of good character” based on the evidence before the Tribunal.

22. On the one hand, the offences committed by XTFX in 2011 were very serious as they involved the cultivation of commercial quantities of an illicit substance. The seriousness of this offence was reflected in the 18-month imprisonment sentence handed down after he was convicted, with a non-parole period of 9 months. The Tribunal considers that XTFX’s decision to engage in this cultivation project has demonstrated a serious weakness in his character. It shows a propensity on XTFX’s part, when placed in adverse circumstances, to flout the law to earn money from engaging in criminal activity.

23. The Tribunal is satisfied that XTFX was aware, at the time of his involvement in this cultivation project, that what he was doing constituted a criminal offence. XTFX’s evidence that he did not know that growing the cannabis was illegal, or would attract a serious penalty if caught, is inconsistent with XTFX’s own evidence that he had a conversation with the “boss” who had told him to admit to everything, and that if he did not do so, the “boss” had left XTFX with the impression or understanding that the “boss” might cause harm to his family members.

24. For this reason, the Tribunal does not accept XTFX’s evidence that he was not aware that his role of cultivating cannabis was illegal. Instead, the Tribunal finds that XTFX was aware at the time he was engaging in criminal activity, that it was a crime. Accordingly, the Tribunal is satisfied that XTFX’s evidence given to the Tribunal at the hearing was not truthful. The serious nature of XTFX’s criminal offending and the fact that he was not truthful at the hearing when asserting that he did not know at the time that this activity was illegal, both weigh heavily against granting Australian citizenship to XTFX at the present time.

25. On the other hand, the Tribunal considers that much can be said for the positive way XTFX seems to have led his life as a member of the Australian community since 2011. He had not been convicted of any further criminal offences. He has completed Diploma-level studies.

26. When unable to find a job in his chosen field, XTFX sought alternative employment in a nail salon and has endeavoured to develop his skills as a nail manicurist. He does not earn a high level of income, but that is irrelevant. He has maintained constant employment and his employer speaks highly of him, describing him in a way which left the Tribunal with the impression that XTFX is a person who is personable, diligent, hardworking and respected by his employer. It seems from the evidence that XTFX has declared his income and paid taxes for his work as a nail manicurist.

27. There is evidence that XTFX has paid some child support in respect of the Child. The level of child support paid is not much, but it is proportionate to the low level of his wages. The Child does not live with XTFX because he lives in a share house due to his financial circumstances. Evidence was given by XTFX, which the Tribunal accepts, that he maintains a civil relationship with his ex-wife and that he has maintained regular interaction with the Child. The Tribunal notes that there are several other people who have provided positive character witness statements, as outlined above, which are supportive of XTFX.

28. At the hearing, XTFX gave an impression to the Tribunal of being a gentle and supportive person, as confirmed by the evidence given by Friend P of his preparedness to support her in the past when she had experienced tough times. XTFX did not come across as being assertive and the Tribunal can understand how the circumstances of the original offending came to be. The Tribunal finds that while he was certainly responsible and must be held to account for his actions, he did not lead the drug cultivation operation; and it seems he became the scapegoat, through his own actions and out of concern for his family, when the cultivation operations were exposed.

29. The Tribunal does not place any weight on the donations made by XTFX to charity, given that they occurred at the suggestion of XTFX’s lawyer. However, XTFX’s involvement in the Buddhist temple is a further indicator in favour of a conclusion that XTFX is “of good character” (see last paragraph of section 4.4 of CPI 15 referring to community work being a relevant consideration). The Minister contends that the monk’s letter did not specify how frequently XTFX was undertaking this work. This is correct. However, the monk’s letter sets out that XTFX has undertaken this voluntary work since 2013 until recently. This is a considerable duration and the Tribunal is satisfied that XTFX has had at least a significant involvement in the temple, which is commendable.

30. The Tribunal has also considered the fact that XTFX was in his mid-20s at the time of the criminal offending after having arrived in a new country and did not have an extensive support network in Australia.

31. In relation to paragraph [16(e)] of these Reasons for Decision, the Tribunal notes that XTFX’s permanent residency visa will allow him to remain in Australia and continue to be involved in his Child’s life regardless of whether XTFX is an Australian citizen, provided that his visa is not subsequently cancelled. There will be many opportunities open to XTFX as a permanent resident and he will be able to fully integrate into Australia society as a permanent resident, regardless of whether he is an Australian citizen. In relation to paragraph [16(f)], XTFX will be able to provide for and meet the needs of the Child regardless of whether he is an Australian citizen. His current visa status allows him to work in Australia and to generate income for himself and his Child, as he is currently doing.

    CONCLUSION

32. On balance, after considering the matters referred to above, the Tribunal considers that not enough time has passed for it to be satisfied that XTFX is “of good character”. The offences were serious and involved commercial quantities of cannabis without legal authorisation to do so. They also showed a significant weakness in XTFX’s character, revealing a propensity to resort to criminal activity in adverse circumstances and an inability to distinguish right from wrong. The Tribunal considers that while XTFX has shown a positive start to reforming his character with the passage of time, with no further offending, and some efforts made to establish a life for himself in Australia, he still has a way to go. For this reason, the Tribunal considers that the decision not to grant XTFX with citizenship by conferral is preferable.

33. By way of observation, the Tribunal encourages XTFX to continue his efforts to establish a life for himself in Australia, taking into account the matters referred to in Appendix 1 of these Reasons for Decision as extracted from the CPI 15, and to reapply at a later point in time so that he may be reconsidered for the grant of Australian citizenship by conferral in the future.

    DECISION

1. The Tribunal affirms the decision under review.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

..............[sgd].........................................................

Associate

Dated: 10 February 2021

Date of hearing:	4 September 2020
Date final submissions received:	29 January 2021
Solicitors for the Applicant:	Mr Ross Ahmadzai, Crystal Migration
Solicitors for the Respondent:	Mr Christopher Orchard, Sparke Helmore Lawyers

APPENDIX 1 - EXTRACT FROM CPI 15

4. Procedural Instruction

4.1 Overview

The purpose of this Instruction is to give guidance to decision-makers on the meaning of ‘good character’ in the context of making a decision under the Act.

In broad terms, the Act relevantly requires that applicants aged 18 and over who seek to become Australian citizens must be of ‘good character’ at the time a decision is made about their application, other than those applicants born in Australia applying under the statelessness provisions set out in subsection 21(8) of the Act.

…

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.

This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:  

·     consider any character issues that arise on the facts of a case;

·     consider all relevant information;

·     guard against bias;

·     be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;

·     be mindful that a person who may not have been of good character can become a person of good character;

·     continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.

In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.

The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case. This Instruction provides guidance to decision-makers but it cannot fetter any statutory discretion conferred by the Act.

…

4.3. What is good character

Definition

The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):

Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

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.

A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.

Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.

For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, DP Breen discussed the role of the character requirement in a citizenship application (at [8]):

The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

Community standards

In Zheng v Minister for Immigration and Citizenship [2011] AATA 304, DP Forgie found the Preamble to the Act could provide assistance in identifying what the Australian society considers to be right and proper behaviour for the purposes of assessing good character.

The Preamble to the Act sets out the meaning of Australian citizenship:

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.

After considering the text of the Preamble, DP Forgie stated:

In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.

…

The citizenship decision-maker must assess whether the decision-maker is satisfied that the applicant is of good character at the time of decision. Such an applicant is likely to uphold the commitment they will make when making a Pledge to become an Australian citizen.

Australian values statement

Another identification of community standards can be found in the Australian values statement, which requires applicants to confirm that they will respect the values of Australian society and obey the laws of Australia.

The values statement signed by applicants for provisional or permanent visas also acknowledges that, if the applicant goes on to become an Australian citizen, they will enjoy reciprocal rights and responsibilities and that these responsibilities include obeying Australian laws.

While a values statement will not have been made by all citizenship applicants (applicants for citizenship by descent, adoption, resumption and those who acquired permanent residence before 17 October 2007 will not have signed the statement), it is a clear statement of community expectations.

4.4 An applicant who is of good character

An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.

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 pay debts to the Commonwealth);

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

o    intentionally providing false personal information (such as fraudulent work experience or qualification documents) or

o    other material deception during visa and citizenship applications;

o    evading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;

o    knowingly entering into a bogus marriage or pretending to be a de facto partner of another person;

o    concealing criminal convictions;

o    fraud against the Commonwealth such as tax fraud or Centrelink fraud;

o    giving false names and/or addresses to police;

·     …

·     not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);

·     not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;

·     …

Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.

It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

4.5 Visa cancellations and character considerations under the Act

Section 501 of the Migration Act allows a visa to be cancelled if the visa holder does not satisfy the Minister that the visa holder passes the character test (see also section 501A, s 501B and s 501BA).

…

Note: A decision by the Minister or a delegate not to refuse to grant a visa on character grounds, or a decision not to cancel a visa on character grounds, does not bind a citizenship decision-maker. The citizenship decision-maker should obtain the applicant’s migration and visa cancellation files and give fresh consideration of the character issues.

…

As these case studies illustrate, it is possible that a person may be granted a visa (or not have their visa cancelled) despite character concerns … Citizenship decision-makers should acknowledge the consideration under the Migration Act however it is open to them to find that the applicant is not of good character, despite not having had their visa refused or cancelled under the Migration Act.

4.6 Assessing good character under the Act

The citizenship character assessment is informed by the applicant’s conduct prior to applying for a visa and during their time in Australia. It is an assessment of all the available information, including any information provided in the visa application process and while the applicant has been a visa holder in Australia and during the processing of the citizenship application.

…

Offences

Does the applicant have a criminal record? Were the offences disclosed?

The current citizenship application, previous citizenship applications, visa applications and passenger card declarations may also be checked for an acknowledgement of criminal convictions.

Decision-makers can only act on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct. With convictions by overseas courts it may be necessary to take account of the independence of the judiciary in the particular country.

The necessity to act on the basis that the conviction is correct will apply regardless of whether the applicant maintains his or her innocence. If the conviction or sentence was appealed, the decision-maker should take the outcome of the appeal into account, not the original finding or sentence, except insofar as the original finding or sentence remains relevant (for example, particular views expressed by the trial judge may be referred to with approval by an appeal court).  

·     If the applicant has a criminal history, further police checks and, if relevant, an overseas penal check may be necessary.

·     If the applicant has committed an offence, was it serious offence? For example:

o    crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)

o    war crimes, crimes against humanity, genocide;

o    crimes against children;

o    drug trafficking (including importation and supply);

o    people smuggling;

o    fraud (including identity fraud);

o    harassment or stalking

o    terrorist activity

o    extortion;

o    illegal pornography, including child pornography

o    breaches of immigration law, including those that resulted in removal or deportation from Australia or another country;

o    offences incurring prison sentences of 12 months or more.

·     Cases involving a finding of not guilty by reason of mental impairment should be discussed with Citizenship Operations prior to a decision being made.

·     Minor offences may include

o    shoplifting;

o    some traffic offences that have been included in a criminal record. An ‘on the spot’ fine would usually have little weight in a character assessment, unless the applicant has a history of such fines. This disregard for the law may be relevant to the assessment of character;

o    offences that lead to a finding of guilt but no conviction or sentence...

Assessing the relative seriousness of the offence  

·     Consider the length of the sentence. Longer sentences carry more weight on a person’s character.

·     Are there any ongoing obligations such as a good behaviour bond? Note: Subsection 24(6) of the Act prohibits citizenship being approved in such circumstances. Refer to Citizenship Instruction 33 – Prohibitions on approval.    

·     Carefully consider sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing. Decision-makers can obtain sentencing information by contacting the Criminal Registrar of the relevant court. Parole reports may also contain useful information (parole reports may be on the s501 visa cancellation file, should such a file exist). In some cases, victim impact statements may be relevant.

·     It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, OMCGs and youth gangs.

·     Were there victims of the offence? Were they children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant?

How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour?

A pattern of behaviour, even of repeated minor offences over an extended period, shows a disregard for the law and may support a finding that the applicant is not of good character. Decision-makers should consider whether the offending has become more serious or frequent over time.

Was the offence pre-meditated?

Sentencing remarks or court transcripts may provide insight into whether or not the judge was of the view that the offence was pre-meditated. That is, the person planned the offence. Pre-meditated offences would usually incur a heavier sentence, and therefore be given more weight in the assessment of character.

Was the offence committed overseas?

…

Has the applicant previously been an Australian citizen and have been deprived of their Australian citizenship or had it revoked?

Refer these cases to Citizenship Operations for guidance.

…

4.11 Weighing information

In addition to the general principles of good decision-making set out in Citizenship Instruction 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;

o    is the offence serious or minor?

o    did the offence harm other people?

o    who were victims?

o    is there a pattern of behaviour?

o    was it a one off incident?

o    were there extenuating circumstances?

·     consider any associations with people or organisations of concern;

·     consider any mitigating circumstances;

o    length of time since the offence was committed

o    age at time of offence

o    behaviour since completing prison sentence or obligations to court

o    remorse regarding their offending behaviour

o    community support (referee reports etc)

o    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.

·     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.

4.12 Mitigating Factors – could the applicant be of good character despite the adverse information

The discussion below expands on the points made above in section 4.11. The discussion focuses on criminal offences, but the principles are also relevant to any general conduct that suggests that the applicant is not of good character.

·     

What is the length of time since the offence and conviction?

There can be a long delay between offence and conviction. Each case should be assessed on its merits. Consider the seriousness of the offence, the nature of the offence, whether another person was harmed, and the rehabilitation process. In the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is now of good character. In some very serious cases, it may never be possible to be satisfied that the person is of good character.

·     Has the applicant accepted responsibility and shown remorse for their conduct?

·     How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?

There is no ‘rule of thumb’ that determines how much time must pass for a person to re-establish good character. Each case must be assessed on its merits.

Has the applicant made an effort to rehabilitate?

·     Have they made a conscious effort to obey and uphold Australian laws? For example, have they undertaken drug and/or alcohol counselling, an anger management course, a program or counselling for sex offenders or any other programme that addresses risk factors relating to their offending?

·     Have they moved away from bad influences, for example by disassociating themselves from a peer group or an organisation?

·     Decision-makers should recall that for some offences, there is no rehabilitation or counselling course available to address the offending. For some offences, the only evidence of rehabilitation is a lack of further offending of that type. If the offender does not have a course to attend, then decision-makers are not to place weight on a lack of course attendance.

What was the applicant’s age at the time the offence was committed?

If the applicant committed the offence at a young age, the offence may be given less weight. The person may have matured and gained greater respect for upholding the law, and criminal offences from that period of life may not be indicative of their current character. This will depend on the nature of the offending and any subsequent offences.

Were there any extenuating circumstances relating to the offence?

An offence committed as a result of duress or psychological disturbance (including disturbance caused by medications other than recreational drugs), may be given less weight. Any claims of mental illness should generally be supported by a report from a psychiatrist or psychologist. Decision-makers should discuss such cases with their supervisors and consult Citizenship Operations if necessary.

Is there any other evidence that the person is of good character?

Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character.

·     Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character.

·     It is open to decision-makers to contact individuals who have provided a referee report for the applicant.

·     Decision-makers should not attribute less weight to a character reference merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship, unless the text sets out that it is clearly written for another unrelated purpose.

4.13 Weighing up the evidence

The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.

Decision-makers should consider the following matters:

·     Would a person of good character behave the way the applicant did?

·     What evidence is there to demonstrate that the applicant has upheld and obeyed the law?

·     Has the applicant behaved in accordance with Australia's community standards, such as obeying the law?

·     Does the applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?

·     Has the applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?

·     Are there any other factors that are relevant to an assessment of the applicant’s character?

In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:

"a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness."

A decision-maker needs to look holistically at an applicant’s behaviour over time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.

If a person has committed a serious offence (such as murder, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the period would be much longer, potentially over a period of many years. Depending on the offending and the circumstances, it may be extremely difficult for a decision-maker to be satisfied that a person is of good character, even after the passage of many years.

Of good character despite adverse information

If a decision-maker has considered all the adverse information available and found the applicant to be of good character despite the adverse information, then the decision-maker must record their reasoning in a detailed file note. There is no requirement to provide reasons for approving an application to the applicant however the applicant may apply under the FOI Act for a copy of the reasons. It is important that the information in the file note is clear, correct and written in a professional manner.