Federal Court of Australia

Kola v Minister for Immigration and Citizenship [2026] FCA 1550

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J

Introduction

1    The applicant is a 48-year-old citizen of Albania. He first arrived in Australia in August 1996 on a tourist visa, and became a permanent resident in December 2008. He has a criminal record, including for traffic convictions and a 2005 conviction for passport-related fraud involving the unauthorised use of another person’s identity to travel overseas. In 2008, he also re-entered Australia using a false passport purchased in Albania. In 2018, he was convicted of cultivating a controlled plant that occurred in 2014 and received a three-month and 15-day suspended prison sentence.

2    The applicant has made two applications for Australian citizenship by conferral. His first application, lodged on 26 June 2012, was refused. The refusal was affirmed by the Administrative Appeals Tribunal on 3 June 2014. He lodged the second application on 18 August 2022.

3    On 20 February 2025, a delegate of the Minister refused that application on the basis that the delegate was not satisfied that the applicant was of good character at the time of the decision, as required by s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

4    On 24 February 2025, the applicant sought review of that decision before the Administrative Review Tribunal.

5    Following a two-day hearing in October 2025, the Tribunal affirmed the delegate’s decision.

6    The Tribunal was not satisfied that the applicant was of good character at the time of the hearing, placing particular weight on his offending history. Although the Tribunal accepted that the applicant expressed remorse and that his risk of future reoffending was considered low, it concluded that the seriousness and cumulative nature of his offending, together with what it considered to be a disregard for Australian laws, outweighed the mitigating circumstances relied upon.

statutory provisions

Citizenship Act

7    Section 20 provides:

Requirements for becoming a citizen

A person becomes an Australian citizen under this Subdivision if:

(a)    the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and

(b)    if the person is required to make a pledge of commitment to become an Australian citizen – the person makes that pledge.

8    Section 24 relevantly provides:

Minister's decision

(1)    If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

Note: The Minister may cancel an approval: see section 25.

(1A)    The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

9    Section 21 relevantly provides:

Application and eligibility for citizenship

(1)    A person may make an application to the Minister to become an Australian citizen.

Note 1: Subsections (2) to (8) deal with eligibility.

…

General eligibility

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

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

(b)    is a permanent resident:

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

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

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

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

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

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

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

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

(Emphasis added).

10    The expression “good character” is not defined. It is understood to refer to the enduring moral qualities of a person, rather than his or her reputation or standing in the community: see Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431- 432 (Lee J).

11    The inquiry under s 21(2)(h) is evaluative. The decision-maker must reach an affirmative belief that the applicant is a person of good character, which does not require the application of an evidentiary standard of proof: see BOY19 v Minister for Immigration and Border Protection [2019] FCA 574; 78 AAR 481 at [54]-[55] (O’Bryan J).

12    Section 52 provides that an application may be made to the Tribunal for, relevantly, review of a decision under s 24 to refuse to approve a person becoming an Australian citizen.

13    Section 53 permits the Minister to delegate any of his functions or powers in the Act or regulations to any person.

Administrative Review Tribunal Act

14    Section 54 of the Administrative Review Tribunal Act 2024 (Cth) applies to the Tribunal's role in the review of reviewable decisions:

Tribunal can exercise powers of decision-maker

For the purposes of reviewing a reviewable decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act.

15    Section 105 provides:

Tribunal decision on review of reviewable decision

In relation to the reviewable decision, the Tribunal must make a decision:

(a)    affirming the reviewable decision; or

(b)    varying the reviewable decision; or

(c)    setting aside the reviewable decision and:

(i)    making a decision in substitution for the reviewable decision; or

(ii)    remitting the matter to the decision-maker for reconsideration in accordance with any orders or recommendations of the Tribunal.

the applicant’s criminal history

16    The following is a summary of the applicant’s criminal history from his national criminal history report:

17    Additionally, in 2008 the applicant obtained a bogus United States passport in a false name and used it to arrive in Australia in May 2008.

the tribunal’s reasons

18    The Tribunal identified that the issue before it was whether it could be satisfied that the applicant was of good character at the relevant time for the purposes of s 21(2)(h): Tribunal’s Reasons (TR) at [4], [78], [81], [89].

19    The Tribunal recorded the matters relied upon by the applicant in favour of a finding of good character: TR at [79]. Those matters included that:

(a)    he had not offended since 2014 and relied upon that period as evidence of rehabilitation;

(b)    a substantial period had elapsed in which he said he had established a pattern of good behaviour;

(c)    he was remorseful;

(d)    his character references attested to his character and community involvement;

(e)    Ms Sarah Kiley-Watkins (a general psychologist) assessed him as presenting a low risk of reoffending;

(f)    he was married, a father and the carer for his elderly mother; and

(g)    he was involved in his church and community.

20    The Tribunal then turned to the applicant’s past unlawful conduct, as follows:

82    The Applicant has, on a number of occasions, engaged in unlawful conduct or conduct he knew to be wrong. The Applicant committed passport related offences for which he was sentenced and fined, where he took documents opportunistically and used them to obtain a passport. The Applicant engaged in behaviours such as taking a wallet from a car, completing a passport application using unlawfully obtained documents that pertained to a person of a different identity, waiting outside a property to intercept the post, purchasing air tickets in a false name and using a passport number from a false passport, completing passenger cards in a false name and traveling on a false passport.

83    Knowing this conduct was wrong, the Applicant offended again in 2005, purchasing a false passport, this being a premeditated action and one that subverted immigration laws. That is, the Applicant again put his own needs before the law, after telling the Tribunal he would not do so.

84    Similarly, the Applicant had met his wife at the time he was cultivating marijuana and his obligation to his older brother was such that he went behind his wife’s back to do so. The Applicant’s earlier citizenship application had been rejected a few months prior and the Applicant was unable to explain why he did not have regard to the Tribunal’s warning to behave.

85    While the Tribunal accepts the Applicant is remorseful for his actions, and there exists an opinion that his risk of general reoffending is low, it is difficult for the Tribunal to adopt this risk rating when the tenor of the Applicant’s evidence remains such that his actions were justified due to the extenuating family and health circumstances he found himself in.

86    The Tribunal accepts [the applicant’s wife’s] evidence that the Applicant is a devoted husband and father. While there exist other statements regarding the Applicant being of good standing, the authors of these statements were not made available for cross-examination.

87    Even if the Tribunal also accepts Ms Kiley-Watkins’ risk assessment and that the Applicant’s wife and children serve as protective factors, the seriousness of the Applicant’s offending, his disregard for Australian laws, his offending in order to prioritise his own circumstances at a time when he was on notice that he needed to maintain an unblemished record if he wished to apply for citizenship in future.

88    That is, in the Tribunal’s view, there are no mitigating circumstances or explanations provided that outweigh his offending behaviour, looking at the Applicant’s behaviour over a lasting or enduring period of time.

CONCLUSION

89    For the reasons outlined above, the Tribunal cannot be satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act. The Applicant’s stated reasons and explanations for his conduct do not outweigh the matters weighing against him, particularly his offending.

DECISION

90    The Reviewable Decision, being the decision of a delegate of the Respondent dated 20 February 2025, to refuse the Applicant’s application for citizenship by conferral, is affirmed.

appeal

The questions of law

21    The further amended notice of appeal dated 18 September 2026 identifies four questions of law, with four corresponding grounds of appeal. In summary, the applicant contends that the Tribunal:

(1)    engaged in legally unreasonable, illogical or irrational reasoning in its consideration of the applicant’s remorse and the expert evidence concerning his low risk of reoffending (ground 1);

(2)    denied the applicant procedural fairness by giving reduced weight to written character evidence because the authors were not made available for cross-examination (ground 2);

(3)    misconstrued or misapplied s 21(2)(h) of the Citizenship Act by finding that the seriousness of the applicant’s historical offending outweighed evidence of his subsequent rehabilitation and good conduct (ground 3); and

(4)    misapplied s 21(2)(h) by asking whether a sufficient period of time had elapsed since the applicant’s historical offending, rather than determining what his conduct since that offending, together with the other evidence of rehabilitation and reformation, demonstrated about his character at the time of the Tribunal’s decision (ground 4).

22    Counsel for the applicant conceded that ground 4 did not raise an issue different to ground 3, and that I, therefore, need not deal with ground 4 separately.

23    The transcript of the hearing before the Tribunal was, at the insistence of the applicant, included in the evidence before me. References to “T” below are to that transcript.

Ground 1

24    Ground 1 zeros in on the TR at [85]. That paragraph is set out above, but I will repeat it here for the sake of convenience:

While the Tribunal accepts the Applicant is remorseful for his actions, and there exists an opinion that his risk of general reoffending is low, it is difficult for the Tribunal to adopt this risk rating when the tenor of the Applicant’s evidence remains such that his actions were justified due to the extenuating family and health circumstances he found himself in.

25    The applicant submitted as follows:

The psychologist, Ms Kiley-Watkins, assessed the Applicant as presenting a low risk of reoffending and having favourable rehabilitation prospects. Rather than identifying a methodological deficiency in that assessment, or evidence demonstrating that the assessment was unreliable, the Tribunal considered that it was “difficult” to accept the opinion because the Applicant continued to justify his historical offending. That reasoning fails to explain how the Applicant's evidence concerning past offending logically demonstrated that the psychologist's assessment of his present risk of reoffending and prospects of rehabilitation was erroneous. The Tribunal was entitled to disagree with the expert; however, the rejection of that evidence rested upon a premise that did not logically support the conclusion drawn from it.

It is submitted that the Tribunal made inconsistent findings which were not typographical or insignificant in nature and that this disclosed a misunderstanding of evidence of importance to the proper exercise of the Tribunal’s review function [citing Minister for Immigration and Citizenship v SZRKT (2012) 212 FCR 99 [sic] at [111], [113]– [114]]. This is a fundamental contradiction relating to the core issue of good character pursuant to section 21(2)(h) of the Act.

26    I do not accept this submission. As counsel for the Minister put in her submissions, “[t]here is no necessary inconsistency between accepting that a person is remorseful about having engaged in particular conduct and finding that the person continues to justify or minimise aspects of that conduct”. I agree. The Tribunal did not make two irreconcilable findings upon the same factual question. Rather, it arrived at evaluative conclusions which were capable of coexisting.

27    In my view, and as the Minister submitted, the Tribunal’s assessment at [85] was open to it on the applicant’s evidence.

28    Although the applicant repeatedly stated before the Tribunal that he did not seek to “justify” or “excuse” his conduct, he continued to explain the conduct by reference to circumstances which, at the time, led him to regard his own needs as warranting unlawful conduct.

29    First, in relation to the 2005 passport offending, he explained that he had used a false passport because his father was seriously ill, while saying that he did not seek to justify what he had done: T 17. The Tribunal stated that even though the applicant knew the offending was wrong he did it anyway: TR at [47].

30    Secondly, his evidence concerning the 2008 false passport was that he returned to Australia because he was seriously ill and could not obtain treatment in Albania: T 12-13. The Tribunal recorded that the applicant said that, although he knew using the false passport was wrong, he thought it was acceptable because he needed to return to Australia for treatment and had no lawful means to do so: TR at [61]-[63].

31    Thirdly, in relation to the 2014 drug offending, the applicant described himself in a statutory declaration as having been in the “wrong place at the wrong time” and as having allowed himself to be “persuaded” by others to engage in the criminal conduct. In oral evidence he said that he had been around people who were involved in that type of activity, had gotten lost in what he was doing and had not thought through the consequences properly: T 15. The Tribunal noted that, while the applicant knew that what he was doing was against the law, he was not in the “right state of mind” and did not think of the consequences of his actions, including that he may not be granted citizenship: TR at [65], [68].

32    In my view, the Minister’s submission that it was therefore open to the Tribunal to distinguish between the applicant’s professed remorse and the extent to which his explanations demonstrated complete insight into the choices underlying his conduct and his responsibility for that conduct must be accepted.

33    The applicant’s related submission that the Tribunal was required to identify a deficiency in Ms Kiley-Watkins’ risk assessment before declining to adopt her ultimate opinion as determinative is also rejected.

34    An assessment that a person presents a low risk of future offending is not equivalent to a conclusion that the person is presently of good character within the meaning of s 21(2)(h).

35    But in any event, the Tribunal expressly considered the position that, even if it accepted Ms Kiley-Watkins’ risk assessment and that there were protective factors in place, other matters ultimately outweighed them: TR at [87].

36    It follows that there is no merit in ground 1.

Ground 2

37    Ground 2 concerns the TR at [86]: “The Tribunal accepts [the applicant’s wife’s] evidence that the Applicant is a devoted husband and father. While there exist other statements regarding the Applicant being of good standing, the authors of these statements were not made available for cross-examination” (emphasis added). It is contended that the Tribunal denied the applicant procedural fairness by giving reduced weight to the written character evidence adduced because the authors were not made available for cross-examination, when that was not the case. The applicant contended that that error disclosed a misunderstanding of the applicant’s evidence of importance to the proper exercise of the Tribunal’s review function (citing Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111], [113]-[114] (Robertson J)). The applicant contended in the alternative that the Tribunal made an incorrect finding in regard to a material fact, and one which it was bound to consider, and which cannot be dismissed as insignificant or insubstantial: citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 31 (Gibbs CJ); and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

38    Four lay witnesses gave written character evidence before the Tribunal. I note what, if anything, they said about the applicant’s criminal history in parentheticals:

(1)    Father Roderick O’Brien, a parish priest at Salisbury Catholic Parish in South Australia (who made no mention of the applicant’s criminal history);

(2)    Dr Joe Alvaro, the applicant’s general practitioner for 20 years (who made no mention of the applicant’s criminal history);

(3)    Tonin Pecaj, the applicant’s friend (“[The applicant] shared his … life story … which led to his criminal history. He has shown great remorse and regret for the wrong choices and bad decisions that he has done. … He has taken full responsibility for his past action …”); and

(4)    Ms Trinh Nguyen, the Deputy Mayor of the City of Prospect in South Australia (“[The applicant] has been very open and honest with me about his past, including his criminal charges”).

39    The high point of the applicant’s submissions with respect to ground 2 is that counsel for the Minister told the Tribunal on the second day of the two-day hearing that the applicant’s character witnesses were not required for cross-examination.

40    The applicant relies on page 96 of the transcript in which the Tribunal engaged in the following exchange with counsel for the Minister:

GENERAL MEMBER: Thank you. Now, before we hear from Ms Kiley-Watkins, you’ll recall, yesterday we left off where I put you, Ms Birman, to see overnight what other witnesses you require, if any. Do you have your instructions?

MS BIRMAN: I do. Yes, I do. Thank you, General Member. And I conveyed a few hours ago to Ms Le, that I didn’t require any of the lay witnesses for cross-examination.

GENERAL MEMBER: Okay. All right. Thank you for confirming that. So that will bring us to Ms Kiley-Watkins’s evidence. …

41    In that respect, counsel for the applicant submitted:

The Tribunal placed less weight on written support letters from Father Roderick O'Brien, Mr Tonin Pencaj [sic], and Dr Joe Alvaro [and Ms Nguyen] at paragraph [86], because "the authors of these statements were not made available for cross-examination." However, the hearing recordings indicate that the Minister’s advocate, Ms Burman [sic], stated that she didn't want to cross-examine any of the lay witnesses.

Relying on that exact agreement, the Applicant's representative, Ms Marion Le AM told the lay witnesses they did not need to physically attend the hearing. As such, the hearing proceeded on the shared understanding that the written, certified statutory declarations were being accepted and the evidence in those statements were not in dispute.

42    Ground 2 must be rejected, including because the reduced weight afforded to the character evidence must be read in the context of the events at the hearing.

43    As a rule, it is a matter for a party who wishes to rely on evidence to satisfy a decision-maker that they were of good character at the relevant time to call that evidence. In particular, the applicant and his representative were on notice that the Minister was going to advance a case that the written character evidence could not be taken at face value. The Minister said the following in his Statement of Facts, Issues and Contentions before the Tribunal, filed two months before the hearing:

56    The Minister notes that the applicant has provided character references from his wife and members of the community who speak highly of him, however the authors either do not mention the applicant’s engaging in the relevant criminal conduct, or reference his criminal history only in vague and opaque terms. In any event, these character references do not provide an objective basis upon which the applicant’s character could be holistically assessed.

(Citations omitted.)

44    The fact that the Minister ultimately elected not to cross-examine the lay witnesses was his forensic choice, not a representation that he had withdrawn his submission about the limited use to which the character evidence could be put when it was unclear what the witnesses actually knew about the applicant’s criminal past.

45    Significantly, the Tribunal member did his best to explain as much to the applicant’s representative at the hearing, as this exchange between the Tribunal and Ms Le (the applicant’s representative at that hearing) demonstrates (commencing at T 103):

MS LE: Just one more thing, just to – again to the sake of the record, really.

GENERAL MEMBER: Yes.

MS LE: It’s my understanding, because the respondent has not chosen to call any of the witnesses, that those witness statements will be taken into account as well, as they have been presented, and that they will be taken as if they were sworn before this tribunal. Is that a correct assumption?

GENERAL MEMBER: Well, they’re taken into account just the way that any other document that’s before the tribunal is taken into account. But if there is anything that’s ambiguous or hasn’t been clarified in those, then you know, there are matters that might not be able to have been tested, because a witness wasn’t available for cross-examination. But the evidence that’s in those statements will be taken to be, that’s the evidence of that person. So they’re not at a disadvantage because they didn’t come in and say, ‘Yes, this is my statement. Yes, these are true and correct, and I don’t wish to add or change anything, and I still maintain the things that I’ve said in this statement, so that’s still the case.’

MS LE: Thank you very much, yes. Thanks for that translation.

…

(Emphasis added).

46    Later on in the Tribunal hearing (commencing at T 112), the following exchange occurred:

GENERAL MEMBER: Ms Le, what do you make of the minister’s criticisms of the character references that have been provided, in relation to either not mentioning Mr Kola’s criminal conduct, or referring to it only in an indirect way?

MS LE: Well, perhaps we can go to that directions because it was something I was going to come to anyway.

GENERAL MEMBER: If it helps, I’ve just got my eye on paragraph 56 of the minister’s statement of facts, issues and contentions.

MS LE: Yes, thank you. Yes, I’d just like to go to that, because that’s – one of the things I’d note there first, is that this time the minister chose not to cross-examine any of these people. And so we would say that those character references therefore stand, whatever requests - - -

GENERAL MEMBER: I’m not suggesting they don’t stand. I’m just asking you what you make, or if you have any comment on the minister’s criticisms, or views regarding the fact that the offending conduct isn’t specifically either referred to, or whoever’s deposing the statement hasn’t specifically detailed what it is. So what I mean is, the fact that the tribunal doesn’t know if they would still hold those views, if they knew the full extent of Mr Kola’s criminal history.

MS LE: Yes, well, on page 120, we did address this, or I addressed this, actually, in a letter to the citizenship. So at page 119, 120 is a copy of an email that I sent, and it said, ‘It should be noted’ – on page 120, ‘It should be noted that all the components of the references statutory declarations are Australian citizens with no criminal records, and all are aware of his criminal past’.

GENERAL MEMBER: Sorry if I’ve been unclear. I mean, yes, there are references there that they have an appreciation that he has a criminal past. But you don’t need to – you can say you don’t have a submission on it, I’m just giving you the opportunity, so if I go to this matter in my decision that it’s been a fair process to Mr Kola, that I’ve put this to you in closing, so you don’t end up reading my decision and say, ‘I didn’t know the tribunal was going to be looking at this point’. So I’m just giving the opportunity, if you’d like, you don’t need to, just to say that this is certainly something that I’d be looking at.

MS LE: Yes, thank you. I can state that all the witnesses were in fact provided with a copy of Mr Kola’s criminal record, of the most recent criminal record that he had. Perhaps, if you like, we could go to the witness statements and - - -

GENERAL MEMBER: We don’t need to do that. I’ve read them all and I’ve read them entirely. I just wanted to give you that opportunity. So you’ve given - - -

MS LE: Yes. Everybody was, in fact, provided with a complete statement of his criminal records, so that they could answer, you know, so that they were very aware of what he had done in the past. And that’s something - - -

GENERAL MEMBER: All right. But they haven’t actually said that in their statements. This is just from your saying that was the process in which the evidence was gathered?

MS LE: Yes, that was the process. I always make sure that people who are giving evidence in relation to these kind of cases are provided with a copy of the criminal record. And some of them, I think – no, I won’t say anything, sorry. What we would say too is that most of those people, you know, all of those people, they’re dealing with the man in the moment. They’re not dealing with the person back there in the past, when they really had little, or no knowledge of him. So when someone comes to them and says, ‘Look, I’ve got a criminal past’, like you were saying, they’re making an assessment of the person as they know him now.

The person who knew him back there are people that will make a very different assessment on him. And I think, to that point the past, the previous decision of the tribunal, where the tribunal Member in that case said, basically that with the passage of time – and that was the decision in 2014 when, of course, Mr Kola then was convicted following that – but the tribunal Member at that time was impressed by him and said that, you know, there was not a sufficient period of time to see whether he would in fact reoffend. And at that time, the reoffending was about false documents and passports.

Unfortunately, you know, there’s this this other offence, happened with cannabis, shortly after that, or he was being charged with it.

47    When the applicant’s representative before the Tribunal submitted that the witnesses had been willing to attend but had not been called because the Minister did not require them for cross-examination, the following exchange occurred (at T 116):

MS LE: … And in fact, that’s the reason why we asked that this tribunal in Adelaide be made open, so that the witnesses, most of whom live here, would be able to come, in person, to the tribunal. And today, finally notified that none of them were needed. And it was a bit of, apparently, a bit of disappointment that some people felt they couldn’t, they didn’t, weren’t needed to come and give evidence. But - - -

GENERAL MEMBER: You could have called them on behalf of the applicant though, Ms Le, even though the minister didn’t specifically require them.

MS LE: I’m aware of that. I’m really aware of that. And I’m not questioning that at all.

48    During closing submissions the Tribunal therefore explained that there were issues about whether the character witnesses knew the detail and extent of the applicant’s criminal history and the possible impact of those issues on its decision.

49    Counsel for the applicant contended that the Tribunal informed Ms Le of the issues regarding the character witnesses too late in the hearing because evidence had closed. However, even assuming that the point had only just occurred to Ms Le after the issue was squarely raised by the Tribunal, it was open for her to ask to reopen the hearing to call those witnesses. That was not done.

50    As mentioned above at [10], the term “good character” is not defined in the Citizenship Act. The Tribunal was nevertheless assisted by the Citizenship Policy (1 June 2016) and the Revised Citizenship Procedural Instructions (1 January 2019), the latter of which was published to support the function of the Citizenship Act.

51    Relevantly, the Policy provided that referee reports or character references:

… can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.

More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, or who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc., if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.

52    As the Minister submitted, having made his position clear in the Statement of Facts, Issues and Contentions at [56] (referred to at [43] above), there were three things he could have done before the Tribunal:

(1)    let the applicant decide to call his witnesses to fill the “gaps” in his case;

(2)    require the witnesses to be called for cross-examination; or

(3)    make submissions about the weight to be attributed to the evidence, noting that the issue had been raised in the Statement of Facts, Issues and Contentions.

53    As I have explained, the Minister opted for the third option.

54    In her oral submissions before me, counsel for the Minister posed the question: “[s]o, what then do we make of paragraph 86?”. Her answer is dispositive:

And as I flagged at the outset of my oral submissions, [paragraph] 86 needs to be read in context. We're not interpreting a statute here. It's an administrative decision-maker's reasons, and your Honour's no doubt very familiar with the Wu Shan Liang statement that "one should not read a decision with an eye keenly attuned to the perception of error."

I'm not reading words in; I'm reading it in light of what happened in the transcript in light of the transcript itself having referred to people not being available for cross-examination in the context of them not being called by an applicant.

So, there's no issue that those witnesses could have been available, that could have been rustled up on the phone or however so they got before this tribunal hearing which was conducted by remote means. But that's not what the tribunal is saying at 86, in my submission. What it's saying there is those people were not ultimately presented to be heard on the issue of this deficiency in their statements.

And so, paragraph 86 does not reflect any error of fact or any misunderstanding of how things were presented to it, nor does it represent a denial of procedural fairness and the applicant being unable to address that issue.

Ground 3

55    Ground 3 is that the Tribunal misconstrued or misapplied the question in s 21(2)(h) by treating the seriousness of the applicant’s historical offending as outweighing the evidence of rehabilitation and thereby failing to determine whether he was of good character at the time of the decision.

56    That is simply not so.

57    The Tribunal identified the statutory question as one concerning whether the applicant “is” of good character: see TR at [4] (“The issue is whether the Tribunal is satisfied that the Applicant is of good character for the purposes of s 21(2)(h) of the Act”); at [78] (“The issue is whether the Tribunal is satisfied that the Applicant is of good character for the purposes of s 21(2)(h) of the Act”); at [81] (“As set out above, the issue is whether the Tribunal is satisfied, in that it can reach an affirmative belief, that the Applicant is of good character for the purposes of s 21(2)(h) of the Act”); and at [89] (“For the reasons outlined above, the Tribunal cannot be satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act”).

58    Further, the Tribunal correctly described the concept of good character as concerning a person’s enduring moral qualities, including the proposition that a person convicted of a serious crime may subsequently demonstrate that he or she has reformed and is of good character: TR at [29].

59    At the commencement of the hearing before the Tribunal, the applicant’s representative submitted that the question was whether, at the date of the Tribunal’s decision, the applicant was of good character: see T 7. The applicant then put his case on the basis that in the 11 years since his last offence, together with the changes in his life during that period, he had demonstrated his good character at the time of the Tribunal’s decision: see T 8-9. The Tribunal expressly identified those matters as the “crux” of the case: see T 9.

60    The Tribunal did not overlook that crucial case. On the contrary, it expressly had regard to the considerations raised by the applicant (see TR at [79] summarised at [19] above).

61    The Tribunal expressly considered Ms Kiley-Watkins’ risk assessment and accepted that the applicant was a devoted husband and father (see TR at [86]-[87]).

62    Having undertaken the assessment outlined above, the Tribunal concluded that the favourable matters did not outweigh the seriousness and circumstances of the offending, nor the other adverse considerations it identified (TR at [88]).

63    In my view, the applicant’s submission that the Tribunal “failed to properly assess” his present character is, in reality, simply an impermissible disagreement with the weight the Tribunal attributed to the favourable evidence.

64    There is thus no merit in ground 3. As I mentioned earlier, the applicant did not press ground 4.

disposition

65    It follows that the appeal is to be dismissed with costs.

Associate:

Dated:    22 October 2026