YWHD and Minister for Home Affairs (Citizenship)
[2019] AATA 3906
•25 September 2019
YWHD and Minister for Home Affairs (Citizenship) [2019] AATA 3906 (25 September 2019)
Division:GENERAL DIVISION
File Number(s): 2018/4583
Re:YWHD
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:25 September 2019
Place:Sydney
The decision under review is set aside and remitted to the Respondent with the direction that the Applicant meets the good character requirements of section 21(2)(h) of the Australian Citizenship Act 2007.
..........................[sgd]..............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – refusal – whether applicant of good character – use carriage service to menace/harass/offend – film person’s private parts without consent – attempt to stalk/intimidate intend fear of harm (domestic) – drive on road etc while licence suspended – traffic offences – consideration of applicant’s character – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Crimes Act 1900 (NSW)
Crimes Amendment (Intimate Images) Act 2017 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code Act 1995 (Cth)
Migration Act 1958 (Cth)
CASES
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347
Chen v Minister for Immigration [2007] AATA 1815
Collins v Minister for Immigration and Ethnic Affairs [1981] 4 ALD 198
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Commonwealth v Twyman [1985] 8 ALD 554
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409
Home Affairs v G [2019] FCAFC 79
Hussaini and Minister for Immigration and Border Protection [2014] AATA 715
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Kalakoda and Minister for Home Affairs (Citizenship) [2019] AATA 3408
KLGL and Australian Prudential Regulation Authority [2008] AATA 542
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Mana and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 639
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Prasad v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1506
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634
Shi v Migration Agents Registration Authority [2008] HCA 31
Umer v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1630
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Citizenship Policy (effective 1 June 2016)
Dennis Pearce: Administrative Appeals Tribunal (LexisNexis, Butterworth, 4th edition, 2015)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
25 September 2019
YWHD (the Applicant) seeks a review of a decision by a Delegate of the Minister (the Respondent) to refuse his application for a grant of Australian citizenship by conferral.
The initial application for citizenship was made in August 2015; the refusal decision was made on 13 July 2018; the application for review was received on 14 August 2018 and the matter came before the Tribunal on 17 September 2019.
The Applicant is citizen of the Islamic Republic of Iran. He arrived in Australia in October 2010 as an Irregular Maritime Arrival and was granted a Protection (subclass 866) in July 2011. He is now 32 years of age.
The basis for the Delegate’s decision was their assessment that the Applicant was not a person of good character as required under section 21(2)(h) of the Australian Citizenship Act 2007 (the Act).
THE LEGISLATIVE REGIME
Grants of citizenship by conferral are made under section 21 of the Act.
Under that section a person is eligible to seek citizenship by conferral provided that they meet certain requirements as specified in that section. These are enumerated in section 21(2) from (a) to (h) and all of the requirements must be satisfied. In the event that they are, then the applicant may be considered for citizenship. The Minister is obliged to make a decision to grant or to refuse a citizenship application (section 24(1)) but has discretion in reaching that decision. In other words, the Minister must make a decision on the application but he may make that decision favourably or unfavourably to the applicant. Finally, citizenship only becomes enlivened once the approved individual has taken the mandated pledge of commitment (section 26).
One of the section 21(2) requirements which must be met is that the person:
(h) is of good character at the time of the Minister’s decision on the application.
This requires the Minister to be satisfied that the applicant is of good character at a specific time, namely when the decision on the application is made. The Minister’s authorised Delegate made that decision on 13 July 2018, believing that, at that date, the Applicant had not established that he was a person of good character.
The Tribunal must now make its own decision on that point as of 17 September 2019 and do so on the basis of the material which it has before it. The decision is de novo and the facts are those most contemporary. The judicial authority for this proposition is as stated below.
The Tribunal is established as a merits-review body. Its responsibility is to review administrative decisions (made under legislation conferring such powers upon it) taking into account the merits of the case in question, the need to reach the correct and preferable decision in each individual case and to promote the objectives of good government.[1]
[1] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307.
It is important to state the general principles upon which the Tribunal must proceed in its own independent decision making. These may be summarised as including:
“The Tribunal’s duty is to make the correct and preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[2]
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[3]
“The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed for the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion.”[4]
“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[5]
[2] Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634 at [640].
[3] Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409 at [page 11].
[4] Dennis Pearce: Administrative Appeals Tribunal (LexisNexis, Butterworth, 4th edition, 2015) at page 301 citing Collins v Minister for Immigration and Ethnic Affairs [1981] 4 ALD 198; Commonwealth v Twyman [1985] 8 ALD 554 and Re KLGL and Australian Prudential Regulation Authority [2008] AATA 542.
[5] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
It is thus clear that although the original decision-maker has found the Applicant not to be a person of good character, it is now up to the Tribunal to make its own determination on that question.
In this respect the Tribunal must have regard to both the Policy which complements the Act and any judicial guidance on its interpretation. The Policy in question is the Citizenship Policy (the Policy) which came into effect on 1 June 2016.
It is important to establish what constitutes “good character”. As this term is not defined in the legislation itself, the Tribunal takes its guidance from decisions of the Court.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs, 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 to the good standing, fame or repute of that person in the community.”[6]
[6] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432.
It is further accepted that there should also be some evidence that what a person says, does or what they are heard to say or seen to do should be taken as evidence of their acceptance of the values and norms to which they are expected to adhere and be loyal.[7]
[7] Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
The Citizenship Policy (at p. 145) elaborates this by attaching to the phrase “enduring moral qualities” the further qualifications, namely:
“characteristics which have been demonstrated over a very long period of time
distinguishing right from wrong
behaving in an ethical manner, conforming to the rules and values of Australian society.”
THE CITIZENSHIP POLICY
It is necessary to give some consideration to the nature and status of the Policy.
The Minister promulgated the Citizenship Policy (effective 1 June 2016) the role of which is
“to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.”[8]
[8] Citizenship Policy (1 June 2016) at [1].
The Tribunal notes that prior to the introduction of the Policy as from 1 June 2016, decision-makers were required to have regard to what were then the Australian Citizenship Instructions (ACIs). That document had a similar opening paragraph as the Policy but included an additional penultimate sentence which read: “Decision makers should be mindful that policy must not be applied inflexibly.”
In Minister for Home Affairs v G the Full Federal Court, in reference to a case initiated before the Citizenship Policy had superseded the ACIs, stated:
“There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.”[9]
[9] Home Affairs v G [2019] FCAFC 79 at [18].
The same caveat applies to the Citizenship Policy.
This contrasts, for example, with the power of the Minister under section 499 of the Migration Act 1958 where legislative authority is given to the Minister to issue “directions” to decision-makers about the exercise of their functions or powers which are biding upon such decision-makers.
Nevertheless, decision-makers (including this Tribunal) must be guided by the principles set out clearly in the decision in Drake and Minister for Immigration and Ethnic Affairs (No 2) by the then AAT President Brennan J:
Not only is it lawful for the Minister to form a guiding policy; its promulgation is desirable, for reasons stated above. Its promulgation is consistent with the view of the distinguished American writer on administrative law, Professor K C Davis, a view which has received judicial approval in the United States:
When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules.
(See Administrative Law Treatise, 2nd ed vol 2 para 8.8.)
That is a commendable approach. It is not a rule of law, but it is none the less valuable as a principle of discretionary decision-making.
In Drake's case, supra, at 601, Smithers J expressed the opinion that “no substantial fault can be found” with the Minister's policy and as that is so there is no reason why the Minister should not apply it in deciding the cases before him. Application of a policy of this kind does not mean an unquestioning adoption of its standards and values, but rather an assumption that, in the absence of any reason to the contrary, its standards and values are appropriate to guide the decision in cases falling within its terms. It is in this sense that I use the term “apply” hereafter with reference to the Minister's stated policy.
It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal's duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function. (1979) 2 ALD 634 at 643
In fulfilling its function, the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which led to the making of the decision under review. But it is not bound to do so. Of course, the Tribunal would be in error to apply an unlawful ministerial policy to cases it decides, for an application of unlawful policy vitiates the consequential decision. That problem does not arise in the present case.
His Honour also stated:
The Minister must decide each of the cases under ss 12 and 13 on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.
Policy indeed is not the same as law. As this Tribunal said in Aston:
“Policy is not law. A statement of policy is not a prescription of binding criteria.”[10]
[10] Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at [376].
Similarly the Tribunal has made a number of observations on this point.
In relation to both the Policy and the Instructions, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
“I do not accept the Australian Citizenship Instructions[11] are useful aids to the interpretation of the statute. At best they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.”[12]
The Policy itself states clearly: “Policy cannot constrain the exercise of delegated powers under the Act or the Regulations”[13] and this indicates that a tribunal should be prepared to be flexible in its interpretation of the Policy to ensure that it reflects properly the facts pertinent to each individual case.
[11] These “Instructions” (last made on 26 February 2015) have since been replaced by the Citizenship Policy (1 June 2016) in the same terms. See Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) at 1. The current set of Instructions are a different form of advice to decision-makers.
[12] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
[13] Citizenship Policy (1 June 2016) at page [1].
THE BASIS OF THE REFUSAL DECISION
As noted above, an applicant for citizenship is required to meet all of the eight criteria set out in section 21(2) of the Act. In relation to the first seven of these (sections 21(2)(a) to (g)) the Delegate found that the Applicant satisfied those conditions.[14] His application only fell at the last hurdle, that of section 21(2)(h), the good character requirement.
[14] Section 37 Tribunal Documents at [10].
Specifically the Delegate found that the Applicant was not a person of good character because he had failed to disclose, in his application for citizenship and in relation to an application for a resident return visa, that he had committed a number of offences in relation to which he had been before the Court. These are as follows:[15]
[15] Ibid at [62]-[63].
Court
Court Date
Offence
Court Result
Local Court
Nov 2012
Use carriage service to menace/harass/offend. Criminal Code Act 1995 section 474.17(1)
Convicted, released on entering recognizance self to be of good behaviour for 18 months.
Local Court
Nov 2012
Film person’s private parts without consent. Crimes Act 1900 (NSW) s. 911(1)
Section 9 bond, with conditions under Crimes (Sentencing Procedure) Act 1999 (NSW).
Local Court
Nov 2012
Attempt to stalk/intimidate intend fear or harm (domestic)
fear of harm (domestic)
Section 9 bond with conditions attached.
Local Court
Nov 2012
Drive on road etc while licence suspended
Charge dismissed under s 10 of Crimes (Sentencing Procedure) Act 1999 (NSW).
It should be noted that in the Respondent’s Statement of Facts Issues and Contentions it states that in relation to the driving charge, the Applicant was “convicted, released on entering recognizance self to be of good behaviour for 18 months.” This is not correct. The charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).[16] In the Delegate’s reasons for decision, the correct outcome of this charge is recorded.[17]
[16]Ibid at [63], [92] and [101].
[17] Ibid at [11].
Before discussing the Applicant’s response to this analysis, it is necessary to say something of his personal circumstances.
APPLICANT’S PERSONAL NARRATIVE AND OFFENDING BEHAVIOUR
The first part of the narrative should be recorded in the Applicant’s own words:[18]
My name is……. I arrived at Christmas Island as a Refugee Asylum Seeker on 2010; after 4 or 5 months there, on 2010, my auntie, her son and 3 other members of my family tragically died when their boat crashed on the rocks near the island.
This was a big shock for me that I was already struggling to survive and establish a new life and future in a new country. I knew my auntie and her kids since I was a young boy and have memories playing with them in Iran. When this happened all my hopes died. After 3 days the police asked the family members to go identify the dead bodies. I remember my aunties' daughter and I were walking to the place they kept their bodies. As my auntie's daughter …was very young, they asked me to walk with her to them. When we walked there, we came across a horrific sight. My family members were deformed because of the crash; there were holes in their faces which caused a big shock to me. I got very traumatised that day. After we recognised the bodies, my cousin started screaming and begged people to cut some hair from her little brother to keep as a memory.
… After that day we came back from identifying the body, I started suffering from mental health issues, hallucinations and fears that people were after me to kill me. I was scared of everyone that they wanted to hurt me, and my mental health got worse and worse. I started telling some friends and cousins about my hallucinations, the voices I was hearing but they started laughing at me. They called me crazy. Since that day I kept it as a secret until 2011. I was afraid to talk to anyone about that. I was suffering in silence with terrorizing voices on my head without any medication.
After some months a charter carried us and the dead bodies of my family from Christmas Island to Sydney where we buried 5 members of my family. After the funeral, they took us back to Christmas Island again.
[18] Applicant’s Statement dated 4 February 2019.
The Applicant states that as a result of this trauma on Christmas Island he started to suffer a number of mental health issues. There is clear evidence before the Tribunal to the effect that, from August 2012 until January 2015, the Applicant was treated at the Liverpool Fairfield Aged and Mental Health Care service.[19] This is accepted as being the case by the Respondent.[20] There is also a letter from the Clinical Care Coordinator at the Fairfield Community Mental Health Service to the effect that the Applicant was treated in this period for “chronic schizophrenia” and that he had “responded well to treatment”, that his “mental health (..) was stabilised and he was compliant with his medication.”[21]
[19] Section 37 Tribunal Documents at [84].
[20] Respondent’s Statement of Facts, Issues and Contentions at [26].
[21] Letter dated 29 January 2019 attached to Applicant’s Evidence.
The Coordinator also writes to the effect that at the time that the Applicant was before the Court he
“was seeking treatment for chronic schizophrenia and PTSD at Fairfield Community Mental Health and STARRTS….(He) presented with auditory hallucinations of a command nature, visual hallucinations and some paranoid ideation of people wanting to hurt him. His treatment at the time included Quetiapine 200mg medication, regular meetings with his case manager, and attending STARRTS.”[22]
[22] Letter dated 1 March 2019 attached to Applicant’s Evidence
(STARTTS is the government-funded NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.)
While on Christmas Island, the Applicant had occasion to phone a “cousin” of his who was being held in another detention centre, this one being in Darwin. The phone was answered by a woman (Ms ES) who was also resident in the shared unit occupied by two families in the detention centre. The Applicant and Ms ES struck up a conversation, both being Iranian citizens, and thereafter they spoke with some regularity from their respective detention centres.
The Applicant eventually was released from Immigration detention and relocated first to Melbourne and thereafter to Sydney.
It appears that Ms ES and her family subsequently settled in Sydney and some time in June 2011 and she initiated contact with the Applicant, seeking his assistance with finding accommodation. This request resulted in the Applicant visiting Ms ES at a premises in Liverpool where he observed that there was another man and a young girl living there. Somehow or other he claims he was left with the impression that the young girl was the daughter of Ms ES by a previous marriage and that the man was a cousin or other relative of hers. How he came to form such an opinion, whether of his own volition or because Ms ES told him or gave him the impression that such was the case, is unclear from both the written and oral testimony to the Tribunal.
In any event, shortly thereafter the Applicant and Ms ES commenced an intimate relationship which continued until November 2011. In his sworn testimony to the Tribunal the Applicant insisted that it was Ms ES who initiated the intimacy in the relationship. What he stated quite explicitly was, to put it in the vernacular that “she came onto him”.
He was not unwilling to respond. This point is of some significance as the Applicant told the Tribunal, repeatedly and at length that, although he had some distant family members in Sydney when he moved there, he was essentially very lonely and that he craved some form of personal comfort and relationship. He stressed that during this period he was suffering from mental health issues (especially both schizophrenia and paranoid delusions of a command nature) which had resulted from his terrible experiences on Christmas Island, but that his conditions were not, at that stage, diagnosed and he was not on any alleviating medication.
It is the Applicant’s testimony that it was only after he explained to Ms ES that he was suffering from some degree of mental unwellness that she decided to terminate their relationship, something which he did not wish to happen. It is also his testimony that it was only at this stage that Ms ES told him that she was married and that the man living with her was in fact her husband.
Sometime during this relationship the Applicant took a number of photographs and videos of Ms ES, some of these were particularly intimate and involved photographing her private parts. These photos and videos were made on his mobile phone.
THE POLICE REPORT VERSION OF SUBSEQUENT EVENTS
In the Police Statement of March 2012 there appears the following statement:
“At no time did the Victim (ie Ms ES) give the Accused permission to take any photos of herself, or to record any conversations.”
Again, the Police Report before the Tribunal[23] indicates that the Applicant appears to have refused to accept the termination of the relationship and that he came to Ms ES’s house where he threatened her physically and also threatened that if she did not continue with the relationship he would upload the intimate photographs and videos to Facebook in an attempt to cause her harm and shame in the community. The Police Report further details that the Applicant continued to harass Ms ES both over the (mobile) telephone and by numerous appearances at her home, especially after her husband had left for work. This pattern of behaviour continued from November 2011 until January 2012.
[23] Section 37 Tribunal Documents at [95]-[100].
The Police Report states that in January 2012 the Applicant confronted Ms ES at her home where he played her a recording of a conversation between ES and the Applicant that he had stored on his laptop. A verbal altercation commenced which degenerated into a situation where the Applicant grabbed Ms ES by the hair and jerked her head back, causing her some immediate pain. As she attempted to leave the premises to seek help, the Police Report states that the Applicant pushed her from behind causing her to fall to the ground. Ms ES took no steps to notify the police at this stage.
There was then apparently no contact between the parties until mid-March 2012 when the Applicant arrived at Ms ES home where she was alone with her daughter. He then showed Ms ES a series of photographs of herself, naked, which he had on his mobile phone and he told her that also had some 16 video clips of her, also naked. Later in that day the Applicant again contacted Ms ES and offered to delete the offending material which he proposed to do in her presence.
They arranged that this would be done. When Ms ES had not heard from the Applicant as arranged, she contacted him. As a result of this conversation Ms ES re-evaluated what had been transpiring since November 2011 and decided to tell her husband everything that had been occurring.
It was at this point that matters were reported to the Police and the Applicant was arrested on 19 March 2012. Pursuant to warrant, a search of the Applicant’s electronic devices revealed films of Ms ES, including films of her private parts.
The Police Reports states that in interview the Applicant denied that he had been stalking or intimidating Ms ES and in relation to the films, he is alleged to have told the Police:
“Sometime she knew I was filming her, sometimes she didn’t … I needed to film her to get proof in case she said I forced her.”
THE APPLICANT’S VERSION OF SUBSEQUENT EVENTS
The Applicant’s version of events involving himself and Ms ES from November 2011 to the date of his arrest are significantly contradictory to those of the Police Statement.
In the first instance the Applicant denies that he ever physically assaulted or manhandled Ms ES or ever caused her any physical harm or hurt. Secondly he states that most of the contacts between them from November 2011 to January 2012 were initiated by Ms ES. Moreover he denies that when he contacted her it was only at times when the male resident in the house was known to be absent. Thirdly he denies that he ever threatened to post any pictures, videos or recordings on social media to the detriment of Ms ES.
Fourthly, he went on the tell the Tribunal that Ms ES had threatened him by implying that she could “make trouble for him” and “have him sent back” to Iran – threats which he said he took seriously. Fifthly and finally he says that after he had appeared in Court he was the subject of a physical assault by Ms ES’s husband.
The Applicant told the Tribunal that he had outlined the first four of these matters to the Police when interviewed after his arrest and that were the Tribunal to obtain copies of the police record of interview this would be confirmed.
It is most unfortunate that while the Tribunal has been provided with the Police Report it has not been provided with a copy of the transcript of the police interview which may have served to confirm the Applicant’s version of events one way or the other.
COURT PROCEEDINGS
The Applicant told that Tribunal that when he went to court in November 2012 he was unaware of what sort of proceedings were involved. In both testimony to the Tribunal and in written submissions made by his legal representatives[24] he claims that
·he had difficulties with an interpreter on the day and that, as a result, he was not fully cognisant of the proceedings in which he was involved;
·he was “misled” into pleading guilty by legal aid solicitors and had a serious disagreement with them which resulted in his making a compliant to a Red Cross support person upon who he relied, that compliant resulting in a second legal aid solicitor taking over his case;
·he was assessed at the Court by health practitioners from Justice Health who reported their findings to the Presiding Magistrate;
·he was not given the opportunity to explain his version of events to the court;
·when he left the court and was, in his words “free to just go home”, he assumed that he had not been “convicted” of anything as he understood the meaning of “conviction” as being equated to “being sent to prison”.
[24] Ibid at [74].
Because the Applicant pleaded guilty to the charges listed above when he appeared before the Local Court in November 2012 and where an unrelated motor vehicle driving offence was also considered, there are no sentencing remarks to indicate how the Court viewed the charges and the Tribunal is left rather, simply to take note of the sentences imposed.
Before doing so however the Tribunal makes two observations in relation to the charges themselves. The first is that the Police, having the evidence both of Ms ES in her statements to them and the record of interview with the Applicant, did not press any charge of domestic violence involving physical assault or actual harm. Secondly no charges were pressed in relation to unlawful recording of phone conversations. Both charges were open to the Police to prefer.
In relation to the offences:
1.Use carriage service to menace is an offence under the Criminal Code Act 1995, section 474.17(1) and carries a maximum penalty of 3 years imprisonment;
2.Film person’s private parts without consent was, at that time, an offence under the Crimes Act 1900 (NSW) section 91L(1) and carried a maximum penalty of 2 years imprisonment or 100 penalty units, or both;
3.Attempt to stalk/intimidate is an offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and carries a maximum penalty of up to 5 years imprisonment and 100 penalty units, or both.
In relation to all of the charges, taken together, the Court imposed an 18 month good behaviour bond to which was attached a series of conditions.
These are important. They were as follows:
“1. YWHD should attend any scheduled appointments as given with his clinical care coordinator, or delegate at Fairfield CMHS.
2. YWHD should attend any scheduled appointments as given with his treating psychiatrist or delegate… at Fairfield CMHS.
3. YWHD should attend his weekly appointment at STRATTS (sic)with his treating psychiatrist and psychologist very Thursday.
4.YWHD should continue to take his medication a (sic) prescribed, Risperdal 3mg nightly and Lezxapro 10 mg daily.
5. YWHD should comply with all directions as given by the Health Services involved in his care.”[25]
[25] Section 37 Tribunal Documents at [87]-[88].
It thus appears that the Magistrate, with the benefit of the mental health assessment provided by Justice Health at the court, made a determination to impose a relatively light penalty, given the severity of penalties which were available for imposition. This suggests to the Tribunal that the Magistrate did not regard the offences to be of a sufficient degree of severity that any sort of custodial sentence was appropriate or should be imposed and that dealing with these matters as essentially ones involving mental health issues was a much more appropriate course of action. The Tribunal relies, inter alia, upon the relative lightness of the sentence in coming to its own conclusion that the offences committed by the Applicant should not be regarded, by it, as offences of a high-level of seriousness.[26]
[26] Kalakoda and Minister for Home Affairs (Citizenship) [2019] AATA 3408 at [31] per Deputy President Pascoe AC CVO.
BEYOND THE COURT
There is no evidence to suggest that the Applicant was other than fully compliant with his bond conditions and there is no evidence of any recorded breach of the bond. This matter was recognised by the Delegate who noted that the bond conditions came to an end in May 2014.[27]
[27] Ibid at [14].
It is in the year immediately preceding the Applicant’s period of formal treatment at Fairfield CMSH and STARRTS that he committed the offences for which he was eventually convicted.
In his Submission the Minister states:
[26] The Minister accepts that between August 2012 and January 2015, the applicant received treatment for post-traumatic stress disorder and schizophrenia (T7/84). However, there is no evidence to suggest that the 2012 offences were attributable in any way to the applicant’s mental health. In any event, it is well established that the presence of mental illness does not justify a departure from community standards as to good character (Mana and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 639 at [64]).
With respect to the Minister, the Tribunal reads the passage in Mana as somewhat less direct and prescriptive than the Minister suggests. The passage reads (in part):
The question of character remains one for objective assessment. The existence of personal factors in an applicant’s background, including factors that may tend to explain the reasons for a person’s offending do not justify departure from a dispassionate and objective assessment of character: Steele and Minister of Immigration and Multicultural Affairs [1997] AATA 405 …… And whilst the existence of personal pressures and disadvantages may assist in characterising behaviour as aberrant, rather than as being materially suggestive of a lack of good character, they are less likely to do so where they involve an entrenched pattern of substance abuse, and associated criminality: Bates and Minister for Immigration and Multicultural Affairs [2007] AATA 29 ….
The Tribunal characterises the Applicant’s behaviour, measured against other evidence of his general comportment in the community and absent any suggestion of substance abuse, as aberrant rather than typical or normative for him. The Tribunal accepts the Applicant’s claim that much of his life at this time, prior to full diagnosis and remedial medication, was affected by his state of mental health unwellness.
The Applicant’s perception of these events and of his state of mind at the time is as follows:
At that time, I made that mistake to be with a married lady. My situation was bad, I was suffering from schizophrenia that she knew about and calling me crazy saying she wouldn't stay with me. I felt lonely, vulnerable and made the mistake to have a relationship with her. She also threatened me that if her husband found out, she would say to him she was forced to do that, so he wouldn't kill her. I filmed some videos of her back then to have some sort of evidence that we were having a mutual and not forceful relationship. I do understand that that was a big mistake and I didn't know it is a crime. I have regretted doing that.
I felt sick that night due to my mental health condition and didn't have a clear judgement. I am not trying to excuse myself and my mistakes. I admit I made those mistakes. I am giving you the context when everything happened that day, what I have been through. I am sorry about alt my mistakes, I wish I could go back in the past and fix everything and I am really sorry about those mistakes. I didn't know I have a criminal record until 2017 when the immigration asked me and accused me of lying.
But I didn't know I had one. None explained to me I had a criminal record.[28]
[28] Applicant’s Statement dated 4 February 2019.
MATTERS CONSIDERED BY THE DELEGATE
The essential matter of concern to the Delegate in making their decision was the failure of the Applicant to tell the Department in his application that he had been convicted of various offences. The Applicant was written to and given the opportunity to explain this oversight on 29 May 2017. The Applicant responded through his legal representative on 29 June 2017.[29]
[29] Section 37 Tribunal Documents at [64]-[69].
In those representations he stated:
(26) Though ignorance is not an excuse, our Client has never been proven to have intent to commit crimes or offences, but rather have pleaded and accepted the peaceful resolution of such disputes at the cost of tainting his criminal record.
(27) Nevertheless, through this Citizenship application, the DIBP’s request for Character evidence has made the Client aware of the importance of disclosing all records and did not intend to conceal his history. He simply thought it was dated, irrelevant and was underinformed about how to conduct a police check.
(28) Our Client is apologetic on the non-disclosure of character evidence and has since engaged us as legal representatives to ensure proper disclosure of all character evidences and full disclosure of facts. He simply has no means and articulate skills to prepare his applications other than simple applications.
In his Submission the Minister relies upon the primary fact of non-disclosure. He then goes on to argue that the offences themselves are of a sufficient degree of seriousness and departure from the norms and standards expected of Australian citizens as to be unacceptable. Specifically the Minister states:[30]
The 2012 offences are fundamentally inconsistent with Australian community values, particularly those related to domestic violence, privacy and respect for individual rights. The applicant’s behaviour towards the victim, a person with whom he was in an intimate relationship, was an abuse of his position of power in the relationship which manifested both physically through his acts of violence and stalking, and emotionally through his threats to the victim that he would reveal their affair by publishing compromising photographs taken of her without her knowledge or consent.
[30] Respondent’s Statement of Facts, Issues and Contentions at [23] citations omitted.
As already noted, the Minister submits that the Applicant’s state of mental health cannot be accepted as any form of excuse, nor is there, he says, any evidence to suggest that the offences in 2012 were “attributable” to a mental health condition.[31]
[31] Ibid at [26].
Finally the Minister also draws attention to the Applicant’s driving record and numerous traffic offences which, in the Minister’s opinion are indicative of “a reckless and deliberate disregard for the law and the safety of other drivers on the road.”[32]
[32]Ibid at [29].
The Applicant’s driving record is:[33]
[33] Ibid at [91]-[92].
Date
Offence
Penalty
15.12.11
Excess speed (˂10 km): school zone. Camera
Fine $154
22.06.12
Learner – unaccompanied by licensed driver. Licence suspended 16.10.12 but lifted 18.10.12
Fine $677
15.11.12
Drive while suspended
Proved but dismissed section 10
15.08.13
Not give proper or timely signal
Fine $165
15.04.14
Excess speed (range ˃30 but ˂45 km/h)
Fine $815
17.07.14
Disobey traffic lights. Camera detected
Fine $405
06.01.15
Not give proper or timely signal
Proven but dismissed section 10
22.10.15
Excess speed (range ˃20 but ˃30). School zone
$558
27.10.15
Demerits points suspension for 12 months from 01.12.15.
Suspension not implemented. Good behaviour conditions from 01/12/15 to 30/11/16
11.07.16
Disobey left turn/right turn/no turn sign at intersection
Proved but dismissed section 10. Good behaviour 6 months
THE ISSUES OF SERIOUSNESS
As noted above, the Minister contends that the Applicant’s offences should be regarded as “serious” and that they “weigh heavily against (the) character”[34] of the Applicant, involving, as they do matters of domestic violence and breach of privacy.
[34] Respondent’s Statement of Facts, Issues and Contentions at [20].
In Mendoza I made it clear that the Tribunal has no tolerance for acts of domestic violence.
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[35]
[35] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48].
That is a position which has been taken consistently by this Tribunal in numerous decisions.[36]
[36] Prasad v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1506 at [32];; Umer v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1630; Ahori and Minister for Immigration and Border Protection [2017] AATA 601; XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385.
Similarly, breaches of privacy, especially in the form of “sextexting” (sending sexually explicit images or messages by way of social media or text messages) are matters to be taken seriously.
In 2017 the Crimes Act (NSW) was strengthened in respect of sharing of intimate photographs especially in what is described as “revenge porn”. The Crimes Amendment (Intimate Images) Act 2017 introduced new offences where a person records or distributes (or threatens to record or distribute) intimate images of another person without their consent. The penalty for these offences is $11,000 and/or imprisonment of up to 3 years.
In this instance there is no evidence that the Applicant ever posted any of the material, explicit or otherwise anywhere or revealed to anyone other than himself and Ms ES. The Applicant swore that he never did so.
DISCUSSION
Decisions for the Tribunal in instances such as this are often a matter of balance, of looking at what the Federal Court has described as a “calculus”[37] of competing facts and circumstances. However in dealing with matters where offences, of a varying degree of seriousness, there is useful guidance as to the approach to be taken from the decision of Deputy President Wright QC in Kakar
“When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.”[38]
[37] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
[38] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14].
The Tribunal will consider each of the principal matters identified by the Minister.
The threats made to Ms ES and the unauthorised filming
As outlined above, the Tribunal does not regard the actual offences committed by the Applicant as reaching a particular high threshold of “seriousness”. It does not believe the sentencing Magistrate did either. The Tribunal is inclined to be more sympathetic than the Minister, to the Applicant’s claims of a degree of mental unwellness (now more appropriately diagnosed and treated) being causative of his behaviour in seeking intimate company and being distressed about the way in which that quest played out.
The Applicant is not being judged on his morals – it is not of concern to the Tribunal whether or not the Applicant had an illicit relationship with a married woman, although it does agree with the Respondent that his expressions of ignorance about Ms ES’s marital status lack credibility. The Citizenship Policy itself makes it explicit that the use of the term “enduring moral qualities” does not carry any religious connotations but refer rather to ethical behaviour, demonstrated over a prolonged period of time and illustrating and understanding of the distinction between right and wrong.[39]
[39] Citizenship Policy at page 145.
In the absence of evidence from the Applicant’s record of interview with the Police it is almost impossible to decide between his version of events and that of Ms ES, other than to note that the more serious potential change of assault occasioning actual bodily harm (domestic violence) was not laid.
Driving offences
In Bowdler I explained at some length the concerns of the Tribunal where persistent disregard of the road safety laws put members of the community at risk.[40] This is something not be tolerated. In Bartlett the Tribunal stated:
The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.[41]
[40] Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347 at [53]-[55].
[41] Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [45].
In a Statutory Declaration of 8 June 2017 the Applicant pleaded that, at the time he was not fully aware of the driving rules in Australia and that “I learnt my driving habits/mistakes brought from Iran.”[42] He also states that he has received no infringement notices or demerit points since July 2016.
[42] Section 37 Tribunal Documents at [74].
The Applicant also says:
My last offence from driving is from 3 years ago and I took the PCYC course and passed with a good grade.[43] My points are full as I always drive very carefully, giving priority to elderly and children and respecting the speeding limits. I made mistakes and I learned from them.[44]
[43] The Co-ordinator of the Traffic Offenders Intervention Program has recorded on the Applicant’s Certificate of Completion of the program: “YWHD was punctual and his attitude good throughout the program.” Attachment to Applicant’s Evidence.
[44] Applicant’s Statement dated 4 February 2019.
In this respect the Tribunal also notes the comments in Hussaini to the effect:
[33] …………….. The Minister’s representative also emphasized the fact that Mr Ghulam’s seven month driver’s licence suspension has only recently expired (in June/July this year) and that he has only been driving again for about three months. According to the Minister’s representative, this is an insufficient amount of time in which to ascertain whether Mr Ghulam has demonstrated responsible behaviour in relation to driving. The Tribunal acknowledges that this is a relevant factor for consideration in deciding whether Mr Ghulam is, on balance, of “good character“ within the meaning of s 21(2)(h) of the Citizenship Act.
[34] However, looking holistically at Mr Ghulam’s behaviour from the time he arrived in Australia (on 15 September 2009) until now, Mr Ghulam has objectively demonstrated that he is of “good character“ — the two offences committed by Mr Ghulam on 30 November 2013 being an exception to his otherwise good character and behaviour over the five years that he has lived in Australia: Irving and ss 10.1.1 and 10.1.2 of the ACIs.[45]
[45] Hussaini and Minister for Imnigration and Border Protection [2014] AATA 715.
Taken as a whole, while the Applicant’s driving record is less than stellar it is not as egregious as the Minister suggests. There are no charges involving drugs or alcohol, nor any resulting in actual harm to any persons. There were brief licence suspensions related to non-payment of fines or to breach of Learner Class requirements and one dealt with by way of a section 10 finding.
These do not appear, to the Tribunal, to amount to a sufficient compendium of driving offences to justify the Minister’s characterisation of them as a “reckless and deliberate disregard for the law and the safety of other drivers on the road.”
The Applicant has now had a “clean” driving record since July 2016.
Failure to disclose information re convictions
The Minister rightly, draws the Tribunal’s attention to the seriousness of any applicant failing to complete their citizenship application by providing the required details in a full and honest manner. The relevant question on the application form, Question 35(a) reads:
“Have you been convicted of, or found guilty of ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ‘spent’ convictions)?
In his application form the Applicant ticked the “NO” box in response.[46]
[46] Section 37 Tribunal Documents at [26].
As already outlined, the Applicant took the view that his convictions were “outdated and irrelevant” and did not need to be included. He also states that he did not understand the distinction of being “convicted” and yet then not imprisoned. In effect he pleads a linguistic misunderstanding between being “found guilty” and “being convicted”.
There is also an understandable degree of confusion as to the extent to which, when the Court finds a matter proven but does not record a conviction, but rather makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) this constitutes “being convicted of” or something which “went to court” in terms of answering Question 35(a) on the citizenship application form. The Tribunal understands, from answers by the Minister’s representative, that this is the case, but can appreciate that this might not be everybody’s clear understanding.
Nevertheless, the Applicant had a clear responsibility to give full and accurate information, and, regardless of the reason, he failed to do so.
OTHER PERSONAL CIRCUMSTANCES
The Tribunal notes a significant change in the Applicant’s circumstances in that he is now in a long-time relationship with his partner who he describes as his “girlfriend”, since 2013. He states that he would like to get married and have a family with her.[47] The Applicant’s partner has provided a character reference for the Applicant in which she acknowledges his previous “criminal record 2012” and states that she wants him to be able to travel with her to Vietnam to see members of her family, but that Vietnam does not accept the travel documents which the Applicant holds currently.[48]
[47] Applicant’s Statutory Declaration (8 June 2017) at [4], [44].
[48] Letter attached to Applicant’s Evidence.
The point about access to secure travel documents is also made by the Applicant in the following terms
I have a sick mother suffering from 3 times heart attack. I don't know if I have a chance to see her anymore as the doctors said she will not live for long. As you can see from the photo my mother is very sick in Iran. The doctor said that she can only fly in a nearby country to see me which is Dubai. Without the citizenship I cannot go to Dubai and see my mother for a last time before she dies because this country won't accept my travel documents.[49]
[49] Applicant’s Statement dated 4 February 2019.
The Minister is dismissive of this on the basis that “[T]here is insufficient evidence before the Tribunal to establish that were the applicant granted citizenship, this would be facilitative of travel.”[50] That may well be true, but the absence of valid travel documents is certainly not facilitative of travel.
[50] Respondent’s Statement of Facts, Issues and Contentions at [30].
The Tribunal takes the view that elements such as this, in an appeal such as this, should be considered in the light of the particular circumstances of this Applicant. What he had to witness on Christmas Island and what happened to members of his family was tragic, horrific and for most people, unimaginable. At no stage does the Minister seem to give any recognition to this or to accord the Applicant any leeway in relation to subsequent events which may have been occasioned or affected by this gross trauma experienced. The Tribunal begs to take a different view.
The Tribunal also took note of the claims made by the Applicant in his evidence that he is finding it difficult to secure full-time employment which he attributes to the unwillingness of potential employers to give him a job once he discloses his mental health problems or that he is on continued medication.[51] The Tribunal is aware of the difficulties faced by people such as the Applicant as a result of the widespread misunderstanding of, and discrimination based upon issues of mental health and wellbeing. The Applicant is currently in receipt of the Disability Support Pension and has presented evidence to the Tribunal of his (unsuccessful) efforts to find suitable employment.
[51] In oral evidence and Applicant’s Statement dated 4 February 2019.
The Minister also contends that the Applicant lacks insight into the nature and gravity of his offences and lacks genuine remorse or contrition in regard to them. This is not the impression of the Tribunal. To be isolated, lonely and suffering from mental health problems so as to view a particular set of circumstances in the same light as with either the Minister or as other observer might, is not to be equated with a lack of insight. The Applicant, in the view of the Tribunal has expressed a genuine understanding of the fact that his relationship with Ms ES was not a socially acceptable or proper one and that his behaviour in taking unauthorised photographs was not proper either. His excuse that he took the photos or videos in order, as he put it, to protect himself from allegations which Ms ES threatened or might make, that their sexual relationship was a non-consensual one, is understandable but unacceptable. However it is not lacking in insight.
There is more weight in the Minister’s claim that the Applicant only expressed a degree of remorse when he came to realise that his actions had jeopardised his citizenship application and that this was late in the day. However, it is hard to see where there would have been any other formal opportunities for this remorse or contrition to be expressed.
BURDEN OF PROOF
As already noted, section 21(2) of the Act enumerates, from (a) to (h) the qualifications or requirements which must be met for an application for citizenship be conferral to be granted by the Minister.
Subsections (a) to (f) are essentially objective – they are matters of fact ranging from the age of the applicant, their residential status or their passing of the Citizenship test.
Subsection (g) is subjective where there is some doubt about the residential status of the applicant and their attachment to Australia, but at least admits of some objective evidence as being able to determine certain matters (e.g. length of residency) one way or another.
Subsection (h) however is almost entirely subjective. Unlike the provision in s 501 of the Migration Act 1958 which provides for an automatic failure of the test of being of “good character” if a person is sentenced to a term of imprisonment of 12 months or more, under the Citizenship Act the onus lies upon the Applicant to demonstrate that he or she is of good character. This was outlined by Senior Member McCabe (as he then was) in Chen:[52]
[18] The wording of the test is important. It does not require that the Minister form an adverse view of the applicant’s character. The Minister must be positively persuaded that the applicant is of good character. Ms Linacre, for the respondent, said the Minister cannot be satisfied about the applicant’s character if there is evidence which calls that character into question.
[21] Where evidence raises a question in the mind of the decision-maker over the fitness of the applicant, it is incumbent on the applicant to adduce evidence that will enable the Minister (or the Tribunal upon review) to conclude that the person is of good character notwithstanding the questions that were raised. It may not be possible to answer the allegations directly – for example, by comprehensively disproving the allegations – but the decision-maker must be provided with a level of comfort about his or her decision.
[52] Chen v Minister for Immigration [2007] AATA 1815.
Returning to the criteria outlined in Kakar, the Tribunal has already discussed the question of seriousness; it finds that the Applicant has not come into any adverse contact with law enforcement (other than traffic offences) since 2012 and that his consistent attendance at and compliance with the directions of mental health programmes, plus his stable personal relationship with his partner over the past six years all speak well to his efforts at rehabilitation.
The Applicant clearly continues to suffer from a degree of mental health unwellness. He still suffers from some form of schizophrenia, he reports that when stressed he reverts to hearing voices (which he says control him) and he suffers a degree of paranoid ideation. He recognises this and appears to be taking steps to respond appropriately. Being subject to a degree of compromised mental health is not, and never could be, a prima facie disqualification for the grant of citizenship.
A key test of being of good character is to exhibit a clear understanding of the difference between right and wrong. In his Statutory Declaration the Applicant states that “I never denied my wrongdoings.”[53] In relation to matters with Ms ES he writes: “I do understand that it was a big mistake and I didn’t know it is a crime. I have regretted doing that.”[54] From his oral evidence the Tribunal accepts that when the Applicant uses the term “mistakes” he means to convey not some inadvertent slip but rather a more genuine sense of an understanding of wrongness. His statement continues:
I felt sick that night due to my mental health condition and didn't have a clear judgement. I am not trying to excuse myself and my mistakes. I admit I made those mistakes. I am giving you the context when everything happened that day, what I have been through. I am sorry about all my mistakes, I wish I could go back in the past and fix everything and I am really sorry about those mistakes. I didn't know I have a criminal record until 2017 when the immigration asked me and accused me of lying.
But I didn't know I had one. None explained to me I had a criminal record.
[53] Section 37 Tribunal Documents at [74].
[54] Applicant’s Statement dated 4 February 2019.
From its observations of the Applicant as a witness and under cross-examination by the experienced representative of the Minister, the Tribunal feels a requisite “level of comfort” in accepting his statements at face value and concluding that he does exhibit a clear understanding of right and wrong. In that respect he meets the criteria as outlined both in Irving and in the Citizenship Policy.
The Applicant has attempted to better his own position by applying for jobs, undertaking training courses[55] and has even attempted to enrol in the Australian Army.[56]
[55] Sydney Training Academy: Statement of Attainment – Provide responsible Gambling Services; Statement of Attainment – Provide Responsible Service of Alcohol. Attachment to Applicant’s Evidence.
[56] Ibid.
He has provided a number of references, all of which attest to his good character and his attempts to contribute to the community. In line with the guidance in the Policy, these have been given limited weight, especially when they fail to disclose a detailed knowledge of the Applicant’s offending behaviour. However they are from a variety of sources and no doubt sincere.
It appears that apart from being assessed as failing to meet the requirements of section 21(2)(h) of the Act, the Delegate did not find any other reasons for the rejection of the original citizenship application. The Delegate’s decision reveals that the statutory prohibitions contained in various subsections of section 24 of the Act were addressed. The prohibitions in subsection 24(3), (5), (6) and (7) were found not to apply. The prohibition in section 24(4A)(b) of the Act was not assessed but clearly does not arise because it refers to there being an Australian parent of an applicant. The other issue not assessed was subsection 24(4) which relates to refusing citizenship to applicants subject to an adverse security assessment under the Australian Security Intelligence Organisation Act 1979.
In its calculus, the Tribunal has reached the conclusion that the Applicant is, for the purposes of subsection 21(2)(h) of the Act, a person of good character.
DECISION
The decision under review is set aside and remitted to the Respondent with the direction that the Applicant meets the good character requirements of section 21(2)(h) of the Australian Citizenship Act 2007.
I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.............................[sgd]...........................................
Associate
Dated: 25 September 2019
Date(s) of hearing: 17 September 2019 Applicant: In person Solicitors for the Respondent: Mr T Hillyard, Sparke Helmore Lawyers
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