Gilbert and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2022] AATA 2600 (16 August 2022)
Division:GENERAL DIVISION
File Number(s): 2021/7395
Re:Shane Dexter Gilbert
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member J Rau SC
Date:16 August 2022
Place:Adelaide
The decision under review is affirmed.
...............[sgnd]..............................
Senior Member J Rau SC
CATCHWORDS
CITIZENSHIP – application for Australian citizenship– application for citizenship refused – whether Tribunal is satisfied Applicant is of good character – prior conviction – decision under review is affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
BOY19 v the Minister for Immigration and Border Protection [2019] FCA 574
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Irving v the Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
SECONDARY MATERIALS
Australian Citizenship Policy Statement, Department of Immigration and Border Protection, 27 November 2020
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
Senior Member J Rau SC
16 August 2022
By application dated 22 September 2021, the Applicant seeks review the decision of a delegate of the respondent (the “Minister”) made on 14 September 2021, to refuse to grant Australian Citizenship, pursuant to section 24 of the Australian Citizenship Act 2007 (Cth) (the “Act”).
The application for review is made in accordance with section 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (“AAT”) for review of a decision made under section 24 of the Act.
BACKGROUND
The Applicant is 32 years. of age and is a citizen of Ireland.
The Applicant arrived in Australia on 13 September 2011 holding a Working Holiday (Web) (subclass 417) visa.[1]
[1] Exhibit 4, T9, p 67 and T10, p 68.
In about September 2012, the Applicant commenced a relationship with Ms Jade Langford. They have two daughters aged 9 and 6 years. The Applicant’s relationship with Ms Langford ended in about October 2015. The Applicant is now a full-time sole parent to the girls. He is unemployed but looking for part-time work.
On 24 June 2016, the Applicant was granted a Partner (Migrant) (subclass 100) visa.[2]
[2] Ibid, T10, p 68.
In about April 2018, the Applicant commenced a relationship with Ms Tara Jefferson. They lived together until about 2019. They have three daughters aged 3, 1 and 6 months. Ms Jefferson gave evidence by phone. She described them as “friends” and “co-parents”.
There is no evidence before the Tribunal to suggest that there is any current issue about the Applicant’s standing as a permanent resident.
An Australian Criminal Intelligence Commission dated 16 February 2021 reveals multiple convictions between December 2011 and November 2019. A copy is annexed hereto and marked Annexure “B”.[3]
[3] Ibid, T6 pp 57-58.
On 5 May 2011, the Applicant was charged in the Brisbane Magistrates Court with destroying fire equipment and urinating in a public place. No conviction was recorded but he was put on a 12-month bond.[4] In respect of this the Applicant says that he did not destroy the equipment. He was messing around with a fire hose with a few mates. He had been working on a cotton farm for 6-8 weeks and had just returned to Brisbane. He got drunk.[5]
[4] Ibid, T6, p 58.
[5] Ibid, T7, p 59.
On 2 May 2013, he was fined $200 without conviction in the Adelaide Magistrates Court for disorderly conduct.[6]
[6] Ibid, T6, p 58.
On 5 March 2015, the Applicant appeared in the Elizabeth Magistrates Court charged with aggravated assault of a child or spouse. No conviction was recorded. He was fined $200 and put on a 9 month’s good behaviour bond.[7]
[7] Ibid.
The Applicant says that on 31 of December 2014, he was at his former partner’s (Jane Langford) cousin’s house. His partner was drinking and was “well under the influence of alcohol”. She became aggressive towards him and hit him with a bottle. The following day, he noticed a message on her phone from a man who was at the party the night before. He was upset because “she had kissed a guy behind my back”. He became upset and there was a heated argument. He threw water at her and she called the police. Subsequently, he was arrested. The Applicant concedes that an AVO was taken out by the police after this event.[8]
[8] Ibid, T7, p 59.
On 21 March 2017, the Applicant appeared in the Port Adelaide Magistrates Court and was charged with resist police, offensive behaviour, failed to answer the question-identity of driver/owner of vehicle. He was fined $1000 without conviction.[9]
[9] Ibid, T6, p 58.
In respect of this the Applicant accepts that the event. He had been drinking the time.[10]
[10] Ibid, T7, p 59.
On 18 November 2019, the Applicant was convicted in the Adelaide Magistrates Court of refuse/failed to submit to drug test with child under 16 present and drive with prescribed concentration of alcohol with a child under 16 present. On the first count, he was fined $900 and he was disqualified from holding a drivers licence for 203 days. On the second count he was fined $900 and disqualified from holding a driver’s licence for 20 days.[11]
[11] Ibid, T6, p 58.
In respect of this, the Applicant says that he was out on a Friday night in Hindley Street, Adelaide. The following day he decided to visit Ms Jefferson’s mother. He was still over the legal alcohol limit. He refused to cooperate in a drug or alcohol test. He accepts that this was a poor decision on his part.[12]
[12] Ibid, T7, p 59.
These matters were all put to the Applicant during the hearing of this matter. He agreed that they were the facts. The Tribunal is in no position to look behind the facts as found by the Courts.[13] This is explicitly stated in the Australian Citizenship Policy (“the Policy”), the material parts of which are set out at para 27 below.
[13] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [63].
On 13 September 2020, the Applicant lodged an application for Australian citizenship. In the application, the Applicant declared that he had been convicted of an offence in Australia and stated as follows:
“……
Character declarations
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
DRUNK AND DISORDERLY
THEFT
ARSON
DUI DUI
DUI WITH CHILD UNDER 16 AND REFUSING DRUG TEST
URINATING IN PUBLIC
FAIL TO ANSWER OWN IDENTITY DRIVER OWNER OF VEHICLE
AGGRAVATED ASSAULT
OFFENSIVE BEHAVIOUR RESIST POLICE
WILFULLY DESTROY ALARM OR APPARATUS
……””[14]
[14] Exhibit 4, T3, p 30.
By correspondence dated 16 February 2021, the Applicant was invited to comment on his history of offending in the context of the consideration of whether to approve his citizenship application. This correspondence referred to the question of whether the Applicant could satisfy the delegate that he was of “good character”, as required under section 21(2)(h) of the Act.[15]
[15] Ibid, T6, pp 50-53.
In response to this correspondence, the Applicant provided an undated statement.[16] In this document he states amongst other things:
……
I do believe I am of good character. I do try my best to get along and be nice to people I meet. I have addressed the issues that I did have. I didn’t make any attempt to inform the department of the offences. I didn’t know if I had too.
I have both my eldest daughters fulltime, Child A and Child B. Their mum has/had cervical cancer. Her cancer was showing signs of remission but she hasn’t attended any of her hospital appointments for a long period of time. Since I have my eldest daughters fulltime I attend a workshop for single dads (Dads businesses) run by Centrecare. I do not speak with a counsellor and I did courses to better myself….I started with dads businesses in January 2020. I have got my act together I have four daughters[17] with two exes. I don’t go out on weekends anymore or binge drink. A big turning point for me was my children and turning 30. I don’t want to be in trouble anymore and just want to be the best father for my kids. I am ashamed at how I behaved at times in my past and I am now just concentrating on my kids and myself.
I think my application should be approved as I love Australia and its culture and history and heritage. I want to pledge myself to Australia. My kids are Australian and I want to be Australian too."[18]
[16] Ibid, T7, pp 59-60.
[17] Now 5.
[18] Exhibit 4, T7, pp 59-60.
On 14 September 2021the delegate refused the application on the basis that the Applicant did not meet the requirements of section 21(2)(h) of the Act. The delegate was not satisfied that the Applicant was of good character.[19]
[19] Ibid, T8, p 62.
ISSUE
The only issue to be determined by the Tribunal is whether the Applicant is of good character for the purposes of s 21(2)(h) of the Act.
LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Where the Minister receives such an application, the Minister must approve or refuse to approve the person becoming an Australian citizen.
Section 24(1A) provides that the Minister must not approve a person to become an Australian citizen unless that person is eligible under section 21(2)-(8) of the Act. Section 21 (2)(h) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the decision on the application.
In BOY 19 v the Minister for Immigration and Border Protection[20] (“BOY 19”), O’Bryan J considered the requirement that a decision-maker must be satisfied of an Applicant’s good character. There is neither a presumption of good character, nor bad character to be displaced. A decision-maker may not be satisfied that a person is of good character without necessarily having to come to the conclusion that a person is of bad character:
“Section 21 (2)(h) requires the Minister to form a judgement as to whether he or she is satisfied that the Applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof in apposite. Second, the matter of which the Minister must be satisfied, the Applicant’s good character is not a fact to be proven but an opinion requiring an evaluative judgement. A standard of proof, such as a balance of probabilities, is incapable of application to such an opinion……
It is not sufficient for the decision-maker to believe that there is a chance that the Applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the Applicant is a person of good character.”[21]
[20] [2019] FCA 574.
[21] Ibid at [54] and [55].
The term “good character” is not defined in the Act; however, there is guidance on the application of the good character requirement in the Policy. The Tribunal is not bound to apply the Policy; however, the Tribunal should have regard to and apply the Policy unless there are good reasons not to do so. In the circumstances of this matter, the Tribunal has not been made aware of any such reason to depart from the Policy.
The Policy relevantly says the following:
CPI 15 - Assessing Good Character under the Citizenship Act
…
Definition
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
- characteristics which have endured over a long period of time;
- distinguishing right from wrong; and
- behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an Applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
A decision-maker can be satisfied that an Applicant is of good character if the Applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the Applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the Applicant’s character is an important component in the Minister’s decision to approve or refuse the Applicant’s citizenship application.
For example, in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, DP Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
Community standards
In Zheng v Minister for Immigration and Citizenship [2011] AATA 304, DP Forgie found the Preamble to the Act could provide assistance in identifying what the Australian society considers to be right and proper behaviour for the purposes of assessing good character.
The Preamble to the Act sets out the meaning of Australian citizenship:
Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
a)by pledging loyalty to Australia and its people; and
b)by sharing their democratic beliefs; and
c)by respecting their rights and liberties; and
d)by upholding and obeying the laws of Australia.
After considering the text of the Preamble, DP Forgie stated:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
Government, both Federal and State, initiatives, such as the making of new laws or reviewing of existing laws, campaigns to raise awareness in the community, the appointment of Royal Commissions to investigate certain matters and make recommendations to government on issues that affect the community should be taken into consideration where relevant, as these issues are reflective of Australian community expectations.
Such issues could be, for example:
-media campaigns about domestic violence, which reflects both the community’s and the government’s stance on this issue;
-the Royal Commission into Institutional Responses to Child Sexual Abuse;
-State and Territory government approaches to Outlaw Motorcycle Gangs (OMCGs) and youth street gangs; or
-new laws regarding national security and terrorism.
These initiatives indicate that domestic violence and child sexual abuse in any form is not acceptable in the Australian community. Behaviour that impinges on the safety of, or creates fear in the community, is not acceptable. Persons taking part in, or condoning, such activities do not respect the rights and liberties of others in the community.
The citizenship decision-maker must assess whether the decision-maker is satisfied that the Applicant is of good character at the time of decision. Such an Applicant is likely to uphold the commitment they will make when making a Pledge to become an Australian citizen.
Australian values statement
Another identification of community standards can be found in the Australian values statement, which requires Applicants to confirm that they will respect the values of Australian society and obey the laws of Australia.
The values statement signed by Applicants for provisional or permanent visas also acknowledges that, if the Applicant goes on to become an Australian citizen, they will enjoy reciprocal rights and responsibilities and that these responsibilities include obeying Australian laws.
While a values statement will not have been made by all citizenship Applicants (Applicants for citizenship by descent, adoption, resumption and those who acquired permanent residence before 17 October 2007 will not have signed the statement), it is a clear statement of community expectations.
4.4An Applicant who is of good character
An Applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
-respect and abide by the law in Australia and other countries;
-be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
-not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or;
oother material deception during visa and citizenship applications;
oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
ogiving false names and/or addresses to police;
-not be the subject of any extradition order or other international arrest warrant;
-not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
-not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
-not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide;
-not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an Applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an Applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.
…
Offences
Does the Applicant have a criminal record? Were the offences disclosed?
The current citizenship application, previous citizenship applications, visa applications and passenger card declarations may also be checked for an acknowledgement of criminal convictions.
Decision-makers can only act on the basis that the verdicts of Australian courts, and the essential factual findings supporting the verdict, are correct. With convictions by overseas courts it may be necessary to take account of the independence of the judiciary in the particular country.
The necessity to act on the basis that the conviction is correct will apply regardless of whether the Applicant maintains his or her innocence. If the conviction or sentence was appealed, the decision-maker should take the outcome of the appeal into account, not the original finding or sentence, except insofar as the original finding or sentence remains relevant (for example, particular views expressed by the trial judge may be referred to with approval by an appeal court).
- If the Applicant has a criminal history, further police checks and, if relevant, an overseas penal check may be necessary.
- If the Applicant has committed an offence, was it a serious offence? For example:
ocrimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)
owar crimes, crimes against humanity, genocide;
ocrimes against children;
odrug trafficking (including importation and supply);
opeople smuggling;
ofraud (including identity fraud);
oharassment or stalking;
oterrorist activity;
oextortion;
oillegal pornography, including child pornography;
obreaches of immigration law, including those that resulted in removal or deportation from Australia or another country;
ooffences incurring prison sentences of 12 months or more.
…
How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour?
A pattern of behaviour, even of repeated minor offences over an extended period, shows a disregard for the law and may support a finding that the Applicant is not of good character. Decision-makers should consider whether the offending has become more serious or frequent over time.
…
4.11 Weighing information
In addition to the general principles of good decision-making set out in Citizenship Instruction 17 – Decision-making under the Citizenship Act, officers assessing whether an Applicant is of good character should as a general proposition:
- characterise the nature of any offence or behaviour;
ois the offence serious or minor?
odid the offence harm other people?
owho were victims?
ois there a pattern of behaviour?
owas it a one off incident?
owere there extenuating circumstances?
- consider any associations with people or organisations of concern;
- consider any mitigating circumstances;
olength of time since the offence was committed
oage at time of offence
obehaviour since completing prison sentence or obligations to court
oremorse regarding their offending behaviour
ocommunity support (referee reports etc)
ochanges in the life of the Applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
- weigh up all relevant factors to decide whether the Applicant is of good character. The decision-maker must look holistically at Applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.
4.12 Mitigating Factors – could the Applicant be of good character despite the adverse information
The discussion below expands on the points made above in section 4.11. The discussion focuses on criminal offences, but the principles are also relevant to any general conduct that suggests that the Applicant is not of good character.
- What is the length of time since the offence and conviction?
There can be a long delay between offence and conviction. Each case should be assessed on its merits. Consider the seriousness of the offence, the nature of the offence, whether another person was harmed, and the rehabilitation process. In the case of a serious offence, a significant amount of time may have to pass before a decision-maker could be satisfied that the person is now of good character- Has the Applicant accepted responsibility and shown remorse for their conduct?
- How has the Applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?
There is no ‘rule of thumb’ that determines how much time must pass for a person to re-establish good character. Each case must be assessed on its merits.
4.13 Weighing up the evidence
The question for decision-makers is whether or not the decision-maker is satisfied that the person is of good character at the time of decision on the citizenship application. This requires the decision-maker to weigh up all of the relevant evidence.
Decision-makers should consider the following matters:
- Would a person of good character behave the way the Applicant did?
- What evidence is there to demonstrate that the Applicant has upheld and obeyed the law?
- Has the Applicant behaved in accordance with Australia's community standards, such as obeying the law?
- Does the Applicant share Australia’s democratic beliefs and respect the rights and liberties of its people?
- Has the Applicant taken steps to rehabilitate or change their lifestyle and become a person of good character?
- Are there any other factors that are relevant to an assessment of the Applicant’s character?
In Prasad and Minister for Immigration and Ethnic Affairs ([1994] AATA 326 at [7]), the AAT said:
"a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness."
A decision-maker needs to look holistically at an Applicant’s behaviour over time. The amount of time depends on the merits of each case, but in most cases will go back prior to any visa application if the person is applying for citizenship by conferral.
If a person has committed a serious offence (such as murder, sexual assault, war crimes, crimes against humanity, genocide or crimes against children) the period would be much longer, potentially over a period of many years.
Depending on the offending and the circumstances, it may be extremely difficult for a decision-maker to be satisfied that a person is of good character, even after the passage of many years.”
EVIDENCE BEFORE THE TRIBUNAL
The Applicant produced references from Mr Rodney Thurlow and Ms Tara Jefferson.
Mr Thurlow gave evidence by telephone. He knew the Applicant because he had lived across the street from him for a number of years. He hadn’t had much contact with him for the last 14 or 15 months. Mr Thurlow had no issue with his personal dealings with the Applicant and always found him to have been “good with me”. It became evident that Mr Thurlow was not fully familiar with the Applicant’s criminal history. When taken through the Applicant’s history by the Respondent’s representative, he said that “I did not know about it”. He went on to say, “I feel horrible I do a nice letter and he hasn’t told me everything”.
So far as Mr Thurlow was concerned, he was not provided with full information about the Applicant’s criminal record before he completed his letter of reference.
Ms Jefferson, as previously mentioned is a friend of the Applicant and his former partner. They have three children together. She conceded that he had in the past had problems with drinking. She was not entirely clear on his criminal history although she did recall that there had been an AVO against him. She seemed to accept that his drinking was a serious issue but that she believed he had taken steps to address this.
The effect of all of the evidence is that the Applicant has undertaken limited steps to adequately seek ongoing professional support to deal with his alcohol problems.
It is important, however, to be mindful of the proper purpose to which references may be put.[22] Character references are each but one person’s subjective opinion of the Applicant’s standing within his community. As Lee J said in Irving:
“good character” should be taken to be used in [the] 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… Person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be person of bad character.”[23]
[22] (1996) 68 FCR 422.
[23] Ibid at [431] and [432].
The character evidence is supportive of the Applicant and is one of the factors that must be considered. This evidence is, however, the subjective opinion of people, based on varying degrees of knowledge about the Applicant and his offending, gleaned through diverse interactions with him. The Tribunal must form its own independent view of the Applicant’s character.
I have also had regard to further materials filed by the Applicant after the end of the hearing on 6 August 2022.[24] The Respondent did not wish to make any submissions in response to the further materials.
[24] Exhibit 7.
CONCLUSION
The question for the Tribunal is therefore essentially this, in the light of his history of offending, particularly his convictions on 5 March 2015 (including an AVO) and 18 November 2019, has the Applicant demonstrated “good character” sufficiently for the Tribunal to be “satisfied” that the Applicant is a person of “good character”?
To answer this question in the negative, it is not necessary for the Tribunal to be satisfied that the Applicant is of “bad character”. To answer this question in the affirmative, “it is not sufficient for the decision-maker to believe that there is a chance that the Applicant is a person of good character”.[25]
[25] BOY 19.
This leads then to an enquiry as to what, if anything, has changed since 18 November 2019 I note that the Policy in describing “enduring moral qualities” refers to them as, amongst other things, “encompassing the following concepts:
(a)Characteristics which have been demonstrated over a very long period of time
(b)Distinguishing right from wrong
(c)Behaving in an ethical manner, conforming to the rules and values of Australian society.”
A consideration of all of the evidence against the Policy set out in paragraph 27 (above) leads to the following relevant findings:
a)having regard to the matters set out above, and given that the Applicant has only been resident in Australia since 2011 and that he has been convicted of multiple offences, some involving women and children, he has failed to show characteristics of “good character” “which have been demonstrated over a very long period of time”;
b)having regard to the matters set out above, there is a question about the Applicant’s capacity to clearly distinguish “right from wrong”;
c)having regard to the matters set out above, there is a question about the Applicant having the capacity to “conform to the rules and values of Australian society”; and
For all of the reasons set out above, it is the opinion of the Tribunal, that the Applicant has not demonstrated the required “enduring moral quality” over a “very long period of time”. The Tribunal is not satisfied that the Applicant is of good character pursuant to section 21 (2)(h) of the Act such that he should be granted Australian citizenship at this time.
This decision does not preclude the Applicant from making an application for Australian citizenship at some time in the future.
DECISION
For the reasons outlined above the decision under review is affirmed
...................[sgnd]............……............Legal Associate
Dated: 16 August 2022
Date of hearing: 02 August 2022 Advocate for the Applicant:
Self-Represented
Advocate for the Respondent: Ms Subasha Prasad
Minter Ellison
Annexure A – List of Exhibits
Exhibit no.
Lodged by
Document
1
Respondent
Statement of Facts, Issues and Contentions filed 23 May 2022
2
Respondent
Statement of Position filed 22 April 2022
3
Applicant
Statement of Facts, Issues and Contentions filed 30 June 2022
4
Respondent
T-Documents filed 11 November 2021
5
Applicant
Certificate of Attendance from Back on Track lodgement date 25 April 2022
6
Applicant
Applicant’s Supporting Evidence:
1. Letter of Support from Mr Rodney James Thurlow
2. Personal Statement from the Applicant
3. Letter of Support from Ms Tara Jefferson
7
Applicant
Email from Applicant providing further submission filed 6 August 2022
Annexure B – Applicant’s Offending History
Court
Court Date
Offence
Court Result
Brisbane Magistrates Court
05/12/2011
[FRSA] 147(D) Wilfully Destroy Alarm or Apparatus (on 16/09/2011)
[SOA] 7 (1) Urinating in a Public Place (on 02/12/2011)
On all charges no conviction recorded – Recognisance - $500.00 – Good Behaviour Period of 12 Months
Adelaide Magistrates Court
02/05/2013
Disorderly Behaviour
Without Conviction – Fined $200
Elizabeth Magistrates Court
05/03/2015
Aggravated assault (no weapon) against child or spouse
Without conviction – Good behaviour bond $500 9 months
Port Adelaide Magistrates Court
21/03/2017
Resist police
Offensive behaviour
Fail to answer question-identify of driver/owner of vehicle
Without conviction – Fined $1000
Adelaide Magistrates Court
18/11/2019
Drive with prescribed alcohol with a child under 16 present
Convicted – Fined $900
Adelaide Magistrates Court
18/11/2019
Refuse/fail to submit drug test-with child under 16 present
Convicted – Fined $900 – Drivers licence disqualification 203 days
- AGLC
- Gilbert and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2022] AATA 2600
- Case
- [2022] AATA 2600
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the AAT was whether the applicant was of "good character" for the purposes of the *Australian Citizenship Act 2007* (Cth). This required the Tribunal to consider the applicant's criminal history, which included multiple convictions and charges between December 2011 and November 2019, some of which resulted in convictions and others in good behaviour bonds.
The Tribunal considered the applicant's explanation for his past conduct, including his intoxication and relationship issues. However, it found that the nature and frequency of the convictions, particularly the charge of aggravated assault of a child or spouse, were significant factors that weighed against a finding of good character. The Tribunal affirmed the decision under review, meaning the refusal of citizenship stood. The decision noted that this did not prevent the applicant from applying for citizenship in the future.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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