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

YCSW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 29 (12 January 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2020/1458
GENERAL DIVISION  )
Re: YCSW
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:  Brigadier A G Warner AM, LVO (Retd), Member
DATE OF CORRIGENDUM:            20 January 2021
PLACE:           Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application, specifically the names of the Applicant’s witnesses, and stated locations of businesses, hospitals and personal residences, to ensure compliance with the confidentiality order made on 9 December 2020.
...................................................................
Member

Division:GENERAL DIVISION
File Number(s): 2020/1458
Re:YCSW
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, AM LVO (Retd), Member
Date:12 January 2021
Place:Perth

The Reviewable Decision of the Respondent to refuse to grant the Applicant
Australian citizenship by conferral dated 19 February 2020 is affirmed.
.................. ......[Sgd]............
Brigadier A G Warner, AM LVO (Retd), Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – national of Republic of India – refusal of application – whether Tribunal satisfied of Applicant’s good character - assault occasioning bodily harm – breach of protective bail conditions – minor offending – failure to declare conviction in Application for Citizenship – consideration of references –
reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2)(h), 24(1), 47
Bail Act 1982 (WA)
Criminal Procedure Act 2004 (WA) – s 35(5)
Restraining Orders Act 1997 (WA) – div 3A
CASES
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
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
Minister for Home Affairs v Sharma [2019] FCA 597
Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Regulation 2016 (Cth) – reg 18(c)
Department of Immigration and Border Protection, Citizenship Policy at 1 June 2016 –
ch 11
Department of Social Services, The National Plan to Reduce Violence against Women and their Children 2010 - 2022
Revised Citizenship Procedural Instructions – CPI 15
REASONS FOR DECISION
Brigadier A G Warner, AM LVO (Retd), Member
12 January 2021
INTRODUCTION

The Applicant seeks review of a decision made by the delegate of the Respondent

(the delegate) on 19 February 2020 to refuse the Applicant citizenship by conferral approval under s 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act).

The delegate was not satisfied that the Applicant was of good character for the purposes of s 21(2)(h) of the Act.
The Tribunal has jurisdiction to review the delegate’s decision under s 52(1)(b) of the Act.
The hearing was conducted by telephone conference. The Applicant was self-represented and gave evidence on affirmation. Mr J Papalia of the Australian Government Solicitor represented the Respondent.
An interpreter in the Tamil language and an interpreter in the Urdu language assisted the Tribunal.
BACKGROUND
Application for citizenship
The Applicant is a citizen of the Republic of India (T8/139). On 15 September 2008,
he arrived in Australia by plane, as a holder of a Class BN Subclass 136 Skilled – Independent (Permanent) visa, which was granted on 7 July 2008.
On 12 November 2013, the Applicant was granted a Resident Return (subclass 155) visa, which was renewed on 24 November 2020 and remains in effect (Exhibit A22).
On 25 December 2018, the Applicant applied for conferral approval under s 21(1) of the Act (T8/112-136). In his application form, the Applicant made the following relevant character declaration:
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)?
Yes
Give details:    Assault my wife (charged due to lack in [sic] communication)
  Breach bail conditions to save my child
  Speed [sic] fine
On 21 November 2019, the Respondent’s Department sent the Applicant a natural justice letter, inviting him to comment upon his criminal history in Western Australia (T17/184-194; T21/221).
On 15 January 2020, the Applicant responded and provided the Department with the following:
a.Handwritten cover letter (T20/199);
b.Statutory Declaration purportedly made by the Applicant and his wife on
15 January 2020 (T20/200-204);
c.Statutory Declaration of Mr J dated 15 January 2020
(with a certified copy of Mr J’s Australian passport biodata page)
(T20/205-206);
d.Statutory Declaration of Ms A dated 15 January 2020 (with a certified copy of Ms A’s Pakistani passport biodata and annotations pages)
(T20/207-209);
e.Reference letter of Mr C (T20/210-211);
f.His expired security officer’s licences No SG32214 (valid between 18 December 2008 and 18 December 2014) (T20/212-213);
g.The first page of handwritten interview notes made by police with the Applicant’s wife on 24 November 2013 (T20/214);
h.The first page of the typed witness statement made by the Applicant’s wife on
24 November 2013 (T20/215);
i.Photocopy of Constable PH Lavers’ police notebook pages 56-57 showing entries made on 24 November 2013 (T20/216);
j.Unified Witness List (Defence Copy) dated 24 February 2014 (Brief No 1210750-1, Assault Occasioning Bodily Harm (T20/217); and
k.Certified Copy of History for Court – Criminal and Traffic dated 16 June 2016 (T20/218).
On 19 February 2020, the delegate refused to approve the application for citizenship
(T2/7-14), and on 13 March 2020 the Applicant sought review in this Tribunal (T1/1-6).
The Applicant claimed the delegate’s decision was wrong because: ‘I believe I am of good character to be granted Australian citizenship by conferral.’ (T1/4).
Assault and breach of protective bail conditions
Late on 24 November 2013, police attended the Applicant’s residence,
after a call by a concerned neighbour. That neighbour reported to police that he could hear a male and female shouting, a baby crying and loud banging (ST1/240).
The Applicant lives at that that residence with his wife and their children (ST1/240).
Police First Class Constable PH Lavers and Police Officer D Murray attended the scene. Police observed multiple visible injuries on the Applicant’s wife, including large circular bruises on her left arm, two large, red, circular bruises on her left shoulder blade, two large, swollen lumps on her head, and a bruise under her right eye. They also observed a broken, free-standing electrical fan on the ground, next to a smashed Samsung television (ST1/240).
Constable Lavers served a Police Order under Division 3A of the Restraining Orders Act 1997 (WA) on the Applicant who was subsequently escorted from the premises (ST1/240).
Police returned to the Applicant’s premises and interviewed the Applicant’s wife.
The relevant notes taken by police and the subsequent typed witness statement of the Applicant’s wife indicate that the Applicant made an admission to police that he had struck his wife with a stainless steel ladle (T20/214-215, ST1/240). Those records indicate that the Applicant’s wife told police, at least once, that she had caused the injuries to herself (T20/214-215, T20/217 Witness No 1).
On 25 November 2013, the Applicant was arrested on the basis that Constable Lavers. reasonably suspected that the Applicant had committed the offence of Aggravated Assault Occasioning Bodily Harm (ST1/240). The Applicant’s rights were explained to him and he was conveyed to Perth Police Station, where he participated in an Electronic Record of Interview with police (Exhibit R1, para 13)). In that interview, the Applicant admitted committing the assault and consequently was charged with that offence. The written Statement of Material Facts, produced under s 35(5) of the Criminal Procedure Act 2004 (WA), records the following explanation that the Applicant provided to police: ‘Only I hit my wife, I was drinking wine and I wanted her to shut up, I hit her more than twice and I picked up the fan and smashed it against the TV’ (ST1/240).
On 11 December 2013, the Applicant entered into a bail undertaking under the

Bail Act 1982
(WA) to appear in the Magistrates Court at a later date in respect of the assault charge. The bail undertaking included the following protective conditions:
·Not to approach within a 100 metre radius of [redacted], East Perth
·Not to contact or attempt to contact [the Applicant’s wife] by whatever means (ST1/237)
On 5 March 2014, police attended the Applicant’s family home, for the purpose of conducting a home visit with his wife. Upon their arrival, the police officers could hear loud voices coming from within the unit (ST1/237). Inquiries revealed that it was the Applicant speaking with his wife, and he admitted to police that he was there in breach of his protective bail conditions, visiting his wife and children (ST1/237). The Applicant was arrested and charged with failing to comply with protective conditions of his bail (ST1/237).
On 6 March 2014, the Applicant was convicted and sentenced in the Perth Magistrates Court. He received a fine of $2,000 for the assault occasioning bodily harm offence of

23 November 2013, and a fine of $300 for the breach of protective bail conditions on

5 March 2014 (T20/218).
Minor Offending
On 17 March 2016, police arrested the Applicant on suspicion that he had been in possession of a Trek men’s racing bicycle that was reasonably suspected to be stolen or otherwise unlawfully obtained. The Applicant informed police that he believed the bicycle had been a ‘gift’ given to him between 12 October 2015 and 9 November 2015 by a stranger at the Warwick Train station. He later used this bicycle security for a loan with Cash Converters, Joondalup in November 2015. The relevant Statement of Material Facts records that the bicycle had been stolen on 12 October 2015 when left outside a house in Clarkson for a short period (ST1/235).
On 26 July 2016, the Applicant was convicted in the Joondalup Magistrates Court on the charge of Possession of stolen or unlawfully obtained property and was sentenced to a Conditional Release Order with a term of nine months. The sentencing officer also recorded a spent conviction order (ST1/23).
On 13 October 2016, the Applicant was convicted in the Perth Magistrates Court and received a $200 fine for exceeding the speed limit in a school zone by 16km/h on
20 May 2016 (ST1/230).
LEGISLATION AND POLICY FRAMEWORK
Section 21(2)(h) of the Act relevantly provides that the Minister must be satisfied that the applicant:
(h) is of good character at the time of the Minister’s decision on the application.
The Act does not define the term ‘good character’ is not defined in the Act, which indicates that Parliament intended the term to be used in a broad way. Guidance is contained in the Citizenship Policy (the Policy), which is government policy and should be followed unless there are cogent reasons against its application (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644-645).
Chapter 11 of the Policy provides guidance for assessing an applicant under the
‘good character’ test and cites Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432, in which the Full Federal Court stated:
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 is 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 Respondent cites O’Bryan J BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 (BOY19) at [51] in submitting that the Federal Court has recently summarised the relevant principles, as follows, that apply:
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… 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.
(see Exhibit R1, para 31)
The ideals of diversity, democracy and liberty, reflected in the Preamble, indicate that the expression ‘good character’ is not to be informed or assessed by individual religious, political or social beliefs, but by moral qualities that are regarded as a necessary concomitant of Australian citizenship (BOY19 at [53]). Chapter 11 of the Policy provides further guidance on the characteristics of good character and relevantly indicates that:
… an applicant of good character would:
§respect and abide by the law in Australia and other countries
§be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
§be truthful and not practice deception or fraud in their dealings with the Australian Government, or other governments or organisations, for example:
oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
…
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent drink driving, excessive speeding or driving without licence or insurance)
…
§not be the subject of any verifiable information causing character doubts.
In providing guidance on a decision maker’s task in weighing up a character determination, the Policy cites Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7], in which the Tribunal said:
A decision about whether a person is of good character requires a 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.
As to referee reports, or character references, the Policy advises:
[they] can shed light upon an applicant’s character and should acknowledge,
where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, and who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc., if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.
(Policy, p155).
ISSUE
The issue before the Tribunal is whether it is satisfied, at the time of its decision,
that the Applicant is of good character for the purposes of s 21(2)(h) of the Act.
For the Tribunal to be so satisfied, it must reach an affirmative belief that the Applicant is of good character.
EVIDENCE
The Tribunal had before it the following evidence:
·The ‘T Documents’ (T1-T24, pp1-228);
·The Supplementary ‘T Documents’ (ST1, pp229-241);
·Applicant’ statement with attached evidence of Australian Organ Donor registration received 18 August 2020 (Exhibit A1),
·Applicant’s family’s Australian Citizenship Certificates received 17 August 2020 (Exhibit A2);
·
Australian Federal Police National Police Certificate dated 23 April 2020

(Exhibit A3);
·Perth Magistrates Court Notice to the Accused of an Adjournment dated 15 August 2016 (Exhibit A4);
·Magistrates Court of Western Australia Notice of Conviction dated 26 July 2016 (Exhibit A5);
·Indian Police Clearance Certificate issued 7 February 2019 (Exhibit A6);
·Western Australia Police History for Court – Criminal and Traffic dated 16 June 2016 (Exhibit A7);
·[Omitted] Emergency Department Nursing Assessment dated 12 April 2014
(Exhibit A8);
·Applicant’s Movement Details as at 14 January 2019 (Exhibit A9);
·Documents related to the Applicant’s employment as a security officer
(Exhibit A10);
·Email from Mr C and references received 17 August 2020 (Exhibit A11);
·Statutory Declaration of the Applicant’s wife dated 17 August 2020 (Exhibit A12);
·Statutory Declaration of Mr B dated16 August 2018 (Exhibit A13);
·Statutory Declaration of Mr J dated 15 January 2020 (Exhibit A14);
·Statutory Declaration by Ms A dated 15 January 2020 (Exhibit A15);
·Cash Converters Customer Transaction Report dated13 May 2016 (Exhibit A16);
·Indian Blood Donor Appreciation Certificate and translation dated 5 May 1999 (Exhibit A17);
·
Letter from Department for Child Protection and Family Support dated

30 August 2016 (Exhibit A18);
·
Changi Airport, Singapore feedback response dated 22 October 2012

(Exhibit A19);
·Wikipedia extract on false confession (Exhibit A20);
·
Extract from the Queensland Police Guide and The Guardian article dated

5 October 2016 received 17 August 2020 (Exhibit A21);
·Letter from Department of Home Affairs advising grant of a Resident Return visa dated 24 November 2020 (Exhibit A22);
·Statement of Facts, Issues and Contentions of the Respondent dated 16 July 2020 (Exhibit R1);
·Redacted report on gender violence and abuse by Associate Professor JaneMaree Maher dated 10 July 2016 (Exhibit R2);
·The oral evidence of the Applicant’s wife;
·The oral evidence of Mr J; and
·The oral evidence of the Applicant.
THE HEARING
Applicant’s oral evidence

The tenor of the Applicant’s oral submissions can be summarised as follows:
a.He denied the assault on his wife (Transcript p14).
b.
He was born and grew up in India before coming to Australia in 2008,

and, when charged with the assault offence, was scared of the police because of how police in India behave in similar circumstances. He described himself as being psychologically and culturally different from this country and did not know how the police would deal with him. He regarded the focus on domestic violence as a

‘kind of mob mentality’ (Transcript p18).
c.
In relation to the breach of protective bail conditions, he told the Tribunal that on

5 March 2014, the day before his court appearance, his daughter aged one and a half to two years old had swallowed a bottle cap. His wife called him in a panic, and he went to the house only for his daughter (Transcript p15-16).
d.He said that after the breach of bail conditions, contact with his Legal Aid lawyer was ‘Like, brainwashing’, and he was told: ‘”Pleading guilty, you can go home;
if you do not plead guilty, they will put you in gaol”’. Further, he had no choice but to plead guilty because he had no money and ‘my wife is not even having money to buy milk…’ (Transcript p16).
e.
He pointed out that his wife continues to live with him following his convictions,

that she was now an Australian citizen and not in his sponsorship any more,

and was free to leave with the kids or alone. He told the Tribunal: ‘She also hurt me sometimes. She even bite me one time…’ (Transcript p18).
Oral evidence of the Applicant’s wife
In addition to her Statutory Declaration (Exhibit A12) the Applicant’s wife gave oral evidence with the assistance of a Tamil interpreter. The Applicant chose not to adduce evidence from this witness, rather inviting Mr Papalia to ask any questions

(Transcript p39).
She said that she had been married for 10 years, that he was a wonderful person,

that she has been dependent on him, and that she was blessed to have such a husband (Transcript p41).
She told the Tribunal that on the day of the assault, the Applicant had been talking to his mother who was not happy with their marriage, he became annoyed and he smashed the telephone (Transcript p40). She said: ‘…I was hitting myself in anger according to our culture, I was hitting on myself. That is how I got injuries… That is why I hit myself on my eye, on my head, on my shoulder… I inflicted my wounds on me because my husband is in trouble because of me’ (Transcript p41).
She said that in their culture the wife managed birth control. She said that she has four children with the Applicant and that ‘…he’s the one who has done the birth control because he doesn’t want to hurt me’ (Transcript p42).
Oral evidence of Mr J
In addition to his Statutory Declaration (Exhibit A14), Mr J gave oral evidence.

The Applicant chose not to adduce evidence from this witness, rather inviting Mr Papalia to ask any questions (Transcript p43).
Mr J said that ‘[t]he wife beat herself up’. He stated that he was not present during the assault incident: ‘Two days later I did go there, around 10 to 11 am. Next day, I would say’. He said that a friend of the Applicant’s wife described the incident to him during that visit (Transcript p44).
In response to questions about the circumstances of the breach of protective bail and the related reference to it in his written statutory declaration (Exhibit A14), he said that the Applicant was upset at not being able to meet his daughter. He confirmed that he had no personal knowledge of the incident and had based his statement on information provided by a friend of the Applicant’s wife (Transcript p44).
Oral evidence of Ms A
In addition to her Statutory Declaration (Exhibit A15), Ms A made herself available to give oral evidence. Neither party had questions arising from the Statutory Declaration.
CONSIDERATION
The Respondent submits that the Applicant’s multiple convictions for offending between November 2013 and May 2016, and his dishonesty regarding that offending during the processing of his citizenship application, give rise to concerns about his character (Transcript p52).
Assault and breach of protective bail conditions
In his evidence the Applicant has sought to minimise his offending behaviour, and asserts that he is innocent of the assault conviction against his wife (see paragraph [31(a)] above). He denies the assault for the purpose of being found to be of good character, but does so in the face of his plea of guilty. In Minister for Home Affairs v Sharma [2019] FCA 597 at [20], Anastassiou J put how criminal convictions should be considered by a Tribunal (adopting the language of Bromberg J in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78]) as follows:
“(I)Where a previous conviction is the foundation for the exercise of power by the decision- maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction,

then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.”
The evidence of the Applicant and his wife is that he did not assault her on 23 November 2013 and that she inflicted injuries on herself. However, the Applicant told police that he was drinking wine and had hit his wife more than twice to shut her up (see [15] above),

and with legal advice pleaded guilty to aggravated assault occasioning bodily harm.

The two police officers who attended the incident observed the multiple visible injuries to the Applicant’s wife as described at [12] above.
The Applicant’s wife gave evidence that she is dependent on the Applicant.

The Respondent relies on the research of Associate Professor Maher (Exhibit R2) in relevantly noting that: ‘This is not unknown in in the context of gender violence.’

(Transcript p53). Having regard to the background and circumstances of the Applicant’s wife as portrayed in the evidence, the Tribunal is surprised and concerned that the Applicant’s wife provided private details of the birth control arrangements within the marriage in support of her assertion that her husband was a wonderful person and husband (Transcript pp41-42). In the Tribunal’s view, this raises doubt about the independence and credibility of her evidence.
CPI 15 alludes to the seriousness of domestic violence offences when it suggests that:

‘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’ (T7/101), and the Tribunal has consistently held that domestic violence is a serious matter (see, for example, Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53]).
Having regard to all the evidence, the Tribunal finds that the Applicant has not discharged his heavy onus in impugning the assault conviction.
The Tribunal turns to the Applicant’s conviction for breach of protective bail conditions,

the offence having occurred on 5 March 2014. The Tribunal has stated above its position that domestic violence is a serious matter (see paragraph [44] above).
The relevant police Statement of Material Facts records: ‘[w]hen asked for an explanation for being at the address the accused readily admitted he was there in breach of protective bail conditions and was visiting his partner and his children’ (ST1/237). The Applicant’s later explanation was that he attended his wife’s address to save the life of his daughter who allegedly had swallowed a bottle cap (see [31(c)] above). Before the Tribunal,

the Applicant contended that although he admits breaching the bail condition, it was not a real breach because the bail conditions were set to save his wife and he did not go there to threaten her or give her a problem (Transcript p35).
In her Statutory Declaration dated 17 August 2020, the Applicant’s wife stated:
I am the one called I [sic] my husband [the Applicant] to save my child.
My husband [the Applicant] initially [sic] not willing to come here, but he changed his mind when my daughter [omitted] [sic] unable to breathe. Hope any father will do the same [sic]. I am proud for [sic] my husband action to save my child.
(Exhibit A12)
The Tribunal has already expressed reservations regarding the testimony of the Applicant’s wife, and notes that this incident was not mentioned in her oral evidence. There is no other corroborating evidence before the Tribunal which might support the Applicant’s explanation. He told the Tribunal that when he received the call from his wife about their daughter swallowing the bottle cap, he thought about ‘…calling a [sic] ambulance or something like that’, but did not do so and walked from his friend’s home to his house, taking about 10 minutes (Transcript p36). The Tribunal concludes that the police statement and the Applicant’s own oral evidence fall short of evincing a picture of immediate threat to the life of the Applicant’s daughter.
The Respondent noted during the hearing that an [omitted] Emergency Department Nursing Assessment dated 12 April 2014 (Exhibit A8) tendered by the Applicant provides no evidentiary support for the Applicant’s version of the breach of protective bail conditions of 5 March 2014 (Transcript, p53). The Tribunal agrees.
Having regard to all the evidence, the Tribunal finds that the Applicant has not discharged his heavy onus in impugning the conviction for breach of protective bail conditions.
Minor offending
The Applicant’s conviction for the traffic offence of exceeding the speed limit in a school zone on 20 May 2016 (Exhibit A3) is not pivotal to the Tribunal’s assessment of the Applicant’s character and is taken no further.
However, the Applicant’s conviction for possession of stolen or unlawfully obtained property (Exhibit A3) casts a shadow over his character. That shadow is lengthened where, despite the clear requirement to declare any spent convictions (T8/129) and a warning to the effect that it was an offence to make a false or misleading statement, or conceal circumstances, the Applicant failed to disclose this conviction at page 18 of his Application for Australian Citizenship (T8/129), but declared that the information he supplied on the application form was complete, truthful and correct, and electronically signed the form to that effect on 17 December 2018 (T8/134). The Respondent notes that the Applicant did not seek to address this conviction despite having been invited to do so by the Respondent’s Department (Exhibit R1, para 40.2).
References
In addition to the statement provided by his wife (Exhibit A12), the Applicant has tendered a number of references. The Tribunal includes these references in its consideration,

having regard to the Policy’s guidance detailed at paragraph [28] above, and places no reliance on them for the following reasons:
a.
The brief statement by Mr B (Exhibit A13) is based on a

12-month knowledge of the Applicant after his convictions and makes no mention of them. He did not give oral evidence.
b.
In the case of Mr J (Exhibit A14), his evidence regarding the assault and breach of protective bail conditions was second hand and reflected what he had been told by a friend of the Applicant’s wife

(see paragraphs [37] and [38] above).
c.The statement by Ms A (Exhibit A15, see also paragraph [39] above) contains little substance and makes no reference to the Applicant’s offending.
d.An employment letter provided by Mr C and a letter from the Salvos Store is post-dated and make no reference to the Applicant’s offending (Exhibit A11). Further, during cross-examination during the hearing, the Applicant agreed that his volunteer work at the Salvos Store in 2015 and 2016 was related more to satisfying requirements for social security payments than any altruistic motives (Transcript p33).
Other matters
The Applicant has tendered evidence of previous good works such as the donation of blood at an Indian hospital in May 1999 (Exhibit A17) and his assistance to Changi Airport in 2012 (Exhibit A19). He also seeks to rely on media articles on police corruption and failure to follow due process and the use of interpreters (Exhibits A20 and 21).

This material is largely irrelevant to the Applicant’s personal and specific circumstances and the issue before the Tribunal, and does not outweigh the preponderance of evidence leading to the Tribunal’s satisfaction that the Applicant committed the offences for which he has been convicted.
CONCLUSION
The extent to which an applicant’s criminal conduct will weigh against a finding of good character will depend on a number of things such as the seriousness of the offences,

the length of time since their commission and the degree of rehabilitation. The fact that the Council of Australian Governments has endorsed The National Plan to Reduce Violence against Women and their Children 2010-2022 to address the serious issue of domestic violence is ample proof of the gravity of the issue.
Despite the passage of time since the assault and breach of protective bail offences,

the Applicant’s denial of the assault on his wife, his explanation for the breach of protective bail conditions offence and his story as to how he came by the bicycle which was the subject of his conviction for possession of stolen or unlawfully obtained property indicate that a cloud remains over his character. The Tribunal is inclined to concur with the Respondents observation that: ‘The stories given by the [A]pplicant defy ordinary human experience’ (Transcript pp35 and 55).
For the reasons outlined above, the Tribunal cannot be satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.
The spirit of the Citizenship Act provides an enduring right for the Applicant to apply again for citizenship. The Respondent correctly notes that the Tribunal’s finding on whether or not it is satisfied that the Applicant is of good character is not immutable (Transcript p55).

A person who has failed to satisfy the requirement to be of good character may, with the passage of time, demonstrate behaviour, attitudes and other positive attributes which might support a future finding that the person is of good character for the purposes of the Act.
DECISION
The reviewable decision, being the decision of a delegate of the Respondent dated

19 February 2020 to refuse the Applicant’s application for Australian citizenship by conferral is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Brigadier
A G Warner, AM LVO (Retd), Member

........................[Sgd]................................................
Associate
Dated: 12 January 2021

Date of hearing: 30 November 2020

Applicant: In person

Counsel for the Respondent: Jon Papalia

Solicitors for the Respondent: Australian Government Solicitor

[2021] AATA 29

12 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Appeal

Date of hearing:	30 November 2020
Applicant:	In person
Counsel for the Respondent:	Jon Papalia
Solicitors for the Respondent:	Australian Government Solicitor