Federal Court of Australia

Jamdar v Minister for Immigration and Citizenship [2026] FCA 1620

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 174(2) of the Administrative Review Tribunal Act 2024 (Cth), the time within which the applicant may commence the appeal from the decision of the Administrative Review Tribunal delivered on 22 December 2025 be extended to 26 August 2026.

2.    The appeal be dismissed.

3.    The applicant pay the first respondent’s costs of and incidental to the proceeding, to be taxed in the absence of agreement.

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

REASONS FOR JUDGMENT

ROFE J:

1.    Introduction

1    This is an application for an extension of time under s 174(2) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) and, if the extension is granted, an appeal from the decision of the second respondent (the Tribunal) delivered on 22 December 2025, in which the Tribunal affirmed the decision of a delegate of the first respondent (the Minister) refusing the applicant’s application for Australian citizenship by conferral: Jamdar and Minister for Immigration and Citizenship (Citizenship) [2025] ARTA 2731 (22 December 2025) (T).

2    In affirming the delegate’s decision, the Tribunal concluded that it was not satisfied that the applicant was a person of good character for the purposes of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth), which stipulates that a person is eligible to become an Australian citizen if (amongst other requirements) the Minister is satisfied that the person is of good character at the time of the decision on the application.

3    For the reasons that follow, the application for an extension is granted and the appeal from the decision of the Tribunal is dismissed.

2.    Evidence

4    The applicant relies on the following affidavits filed in these proceedings:

(a)    the affidavit of the applicant, Farid Jamdar, affirmed on 24 August 2026 (Jamdar Affidavit) which addresses the circumstances of the delay in commencing these proceedings and annexes, amongst other things, the Tribunal’s reasons, the draft “Notice of appeal from a tribunal” form and correspondence relevant to the applicant’s earlier attempts to challenge the Tribunal’s decision;

(b)    the first affidavit of Nicholas Merlin, a solicitor employed at Australian Migration Lawyers, the firm on record for the applicant, affirmed 26 August 2026, which annexes a partial transcript prepared from audio recordings of the hearing before the Tribunal and describes the circumstances in which those recordings were obtained; and

(c)    the second affidavit of Nicholas Merlin, affirmed 28 September 2026, which annexes a further partial transcript of the Tribunal hearing and a chronology identifying the portions of the recordings in which particular witnesses gave evidence.

3.    Relevant background

5    The applicant is a 38-year-old citizen of Afghanistan. He first arrived in Australia on 17 October 2009 as a holder of a temporary Prospective Marriage (subclass 300) visa. On 9 March 2017, he was granted a permanent Five Year Resident Return (subclass 155) visa.

6    On 20 May 2015, in the Frankston Magistrates’ Court, the applicant faced seven charges of obtaining property by deception and one charge of theft (the 2014 offending). The charges were resolved by way of fines and compensation without conviction.

7    Between 19 and 25 October 2020, the applicant engaged in serious offending. On 19 October 2020, through voice messages to his sister-in-law (the victim), the applicant swore at the victim and made numerous threats, including threats to throw acid on her and her husband, cut off her fingers, and rape her and her sister. The victim became fearful of the threats and reported the conduct to police after blocking the applicant’s number. Following a police interview later that day, the applicant was issued with a Family Violence Safety Notice (FVSN). On 25 October 2020, he posted two photographs of the FVSN on social media through his wife’s account, which clearly displayed the victim’s personal details.

8    On 28 February 2023, in the Dandenong Magistrates’ Court, the applicant was convicted of threatening to inflict serious injury and contravening the FVSN (the 2020 offending and the 2023 conviction) and was released on an adjourned undertaking to be of good behaviour for a period of 12 months.

9    On 19 June 2023, the applicant applied for Australian citizenship by conferral (the citizenship application) and maintains that he did not complete the form himself but was instead assisted by a friend or relative. The form contained a question in the following terms: “Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia […]?”. The answer recorded in the application was “No”. At the time the applicant made his application, the good behaviour period referred to in the preceding paragraph had not expired, being due to expire only on 26 February 2024.

10    On 12 July 2023, the Department of Home Affairs invited the applicant to attend a citizenship interview and standard citizenship test on 26 July 2023. The applicant attended that appointment, sat the citizenship test and passed. During the appointment, the applicant disclosed that his driver’s licence had been suspended for three months in 2011 for drink driving. However, he did not disclose the 2023 conviction in relation to the 2020 offending.

11    By email dated 28 August 2023, the Department provided the applicant with a “Check Results Report”, apparently conducted by the Australian Criminal Intelligence Commission on 24 August 2023 (the police report), which identified the 2014 offending and the 2020 offending. The Department also invited the applicant to comment on adverse information indicating that s 24(6)(g) of the Australian Citizenship Act applied. That provision prevents the Minister from approving a person becoming an Australian citizen if the person has been made subject to a bond or recognisance relating to the person’s behaviour following sentence for an offence against Australian law for as long as action may be taken in the event of a breach. Again, it is recognised that the applicant remained subject to the good behaviour bond imposed on 28 February 2023.

12    By email dated 31 August 2023, the applicant provided several documents in response to the invitation to comment on the police report, including a statutory declaration made on 31 August 2023. The statutory declaration addressed the 2020 offending but not the 2014 offending.

13    On 16 October 2023, a delegate of the Minister refused the applicant’s citizenship application. The delegate found that the applicant could not be granted citizenship due to the operation of s 24(6)(g) of the Australian Citizenship Act. In refusing the citizenship application, the delegate did not assess the applicant’s character.

14    On 28 March 2024, the Administrative Appeals Tribunal, being the predecessor of the Tribunal for the purposes of these reasons, set aside the delegate’s decision and remitted the matter to the Minister for reconsideration, with a direction that the prohibition in s 24(6)(g) of the Australian Citizenship Act did not apply. That outcome was reached by the agreement of the parties to that review.

15    By letter dated 10 April 2024, the Minister’s Department again invited the applicant to comment on the police report. The applicant responded to that invitation by email dated 19 April 2024, again providing the statutory declaration of 31 August 2023.

16    On 17 May 2024, a different delegate of the Minister refused the applicant’s citizenship application. The delegate found that the applicant was not of good character for the purposes of s 21(2)(h) of the Australian Citizenship Act.

17    On 28 May 2024, the applicant applied to the Tribunal for merits review of the decision of the Minister’s delegate. The Tribunal conducted a hearing in relation to that application on 23 October 2025 and, on 22 December 2025, affirmed the decision of the second delegate of the Minister. The applicant was legally represented at the hearing.

18    On 26 August 2026, the applicant filed the present application for an extension of time pursuant to s 174(2) of the ART Act. That application followed an earlier attempt to challenge the Tribunal’s decision by filing on 22 January 2026 an originating application for review of a migration decision. Although that application was accepted for filing and allocated proceeding number VID 67 of 2026, the Minister subsequently filed a notice of objection to competency on the basis that the Tribunal’s decision was not a “migration decision” within the meaning of s 5(1) of the Migration Act 1958 (Cth). Rather, the Tribunal’s decision was appealable under s 172(1) of the ART Act as an appeal on a question of law, which was required to be commenced by notice of appeal in accordance with Form 75 as prescribed by r 33.12(1) of the Federal Court Rules 2011 (Cth). Section 174(1)(a)(i) of the ART Act required such an appeal to be commenced within 28 days after the Tribunal provided its statement of reasons. By the time the present application was filed, the period of delay amounted to 217 days, of which three days accrued between 19 January and 22 January 2026 and the balance resulted from the commencement of proceeding VID 67 of 2026 by way of an originating application rather than a notice of appeal.

4.    Extension of time

19    Having regard to the nature of the delay and the fact that the Minister does not oppose the grant of an extension of time, I am satisfied that time should be extended pursuant to s 174(2) of the ART Act. The Court will therefore proceed to consider the grounds advanced in the draft notice of appeal as contained in Annexure FJ8 to the Jamdar Affidavit (which will be referred to as the notice of appeal herein). Notwithstanding that the reasons which follow concern the substantive appeal, I will continue to refer to the applicant as such for continuity.

5.    Grounds of appeal

20    The notice of appeal advances five grounds of appeal which may conveniently be grouped into two broad themes.

21    The first theme concerns the Tribunal’s treatment of the applicant’s 2014 offending and the operation of Pt VIIC of the Crimes Act 1914 (Cth). By ground 1, the applicant contends that the Tribunal impermissibly took account of matters which s 85ZS(1)(d)(ii) of the Crimes Act required to be disregarded. By ground 2, he contends that the Tribunal denied him procedural fairness by allowing the questioning of him in relation to those matters without informing him of the protections said to arise under s 85ZS(1)(d)(ii). Ground 4 is consequential upon those contentions: that the Tribunal’s findings took into account a prohibited matter. The applicant maintains that the Tribunal’s treatment of the 2014 offending informed an adverse assessment of his credibility which, in turn, affected its finding that he had deliberately withheld information concerning the 2023 conviction.

22    The second theme concerns the Tribunal’s finding that the applicant had deliberately withheld information about the 2023 conviction from the Department. By ground 3, the applicant contends that this finding at T [93]–[94] was legally unreasonable, principally because it depended upon inferences drawn from a departmental file note and the rejection of his sworn evidence concerning what occurred at the citizenship test appointment. By ground 5, the applicant contends that the Tribunal misunderstood aspects of the evidence given by his wife, Nooria Shirzoi, and his sister, Nikmurgha Jamdar, and that those misunderstandings affected the Tribunal’s reasoning on that issue.

5.1    Grounds 1, 2 and 4: Pt VIIC of the Crimes Act, procedural fairness and the significance of the 2014 offending

23    Given the substantial overlap between grounds 1, 2 and 4, it is convenient to deal with them together. Each ground concerns the Tribunal’s treatment of the applicant’s 2014 offending, in respect of which findings of guilt were recorded in 2015 without conviction. Although articulated as separate challenges, the grounds depend upon a common factual and legal foundation. The applicant contends that the Tribunal’s treatment of the 2014 offending contravened Pt VIIC of the Crimes Act and that this alleged error had both procedural and substantive consequences for the Tribunal’s ultimate assessment of his character and credibility.

24    The starting point for the applicant’s case is the proposition that, by reason of s 8(2) of the Sentencing Act 1991 (Vic) and the operation of ss 85ZR(2)(b) and 85ZS(1)(d)(ii) of the Crimes Act, an offence for which he was not convicted should not have been considered by the Tribunal.

25    Section 8(2) of the Sentencing Act provides:

Except as otherwise provided by this or any other Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose.

26    The provisions of Pt VIIC of the Crimes Act relevantly provide:

85ZR    Pardons for persons wrongly convicted

[…]

(2)    Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country:

[…]

(b)    the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence.

85ZS    Effect of pardons for persons wrongly convicted

(1)    Subject to Division 6, but despite any other Commonwealth law or any State law or Territory law, where, under section 85ZR, a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence:

[…]

(d)    anyone else who knows, or could reasonably be expected to know, that section 85ZR applies to the person in relation to the offence shall not:

(i)    without the person’s consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful for the first-mentioned person not to disclose it to that other person or that authority; or

(ii)     in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence.

27    The applicant submits that, notwithstanding those statutory protections, the Tribunal impermissibly took account of the fact that he had been charged with, and found guilty of, the 2014 offending. In support of that contention, the applicant relies upon the following passage from the Tribunal’s reasons at T [88]:

The Tribunal is aware that it cannot regard the Applicant’s findings of guilt as a conviction for any purpose. However, the Tribunal has had regard to the underlying conduct that gave rise to the 2015 offences in accordance with the principles in [sic] Ngaranoa v Minister for Immigration and Citizenship and SZRTN v Minister for Immigration and Border Protection. The Tribunal notes that the absence of a conviction does not render the conduct immune from consideration. However, the Tribunal considers that the conduct (which occurred in 2014) is not of a sufficient seriousness to contribute to a finding that the Applicant is not of good character. The Tribunal notes that the conduct occurred over 11 years ago and occurred at a time the Applicant was reportedly suffering from depression and abusing alcohol. That set of circumstances doesn’t excuse the behaviour, but it does provide the Tribunal with important context in regard to the Applicant’s circumstances at the time. The Tribunal notes that the Applicant’s next set of offences occurred in October 2020 which is almost six years after the first set of offending.

(Citations omitted.) (Emphasis added by the applicant.)

28    The applicant also relies upon the surrounding passages in the Tribunal’s reasons, namely T [87] and [89], which provide:

[87]    The Tribunal has considered the underlying conduct that led to his 2015 finding of guilt. The Tribunal accepts the Applicant’s account that he was consuming alcohol at the time, and that his behaviour was linked to his alcohol consumption. During his oral evidence, he appeared to minimise his offending by stating that he was using the credit card on behalf of someone else to purchase cigarettes. The Applicant was captured on CCTV using the credit card and was found guilty of the charges.

[…]

[89]    The Tribunal finds that the conduct that occurred in 2014 does not contribute to the Tribunal’s finding that the Applicant is not of good character at the time of its decision.

(Emphasis added by the applicant.)

29    The applicant further points to the authorities cited by the Tribunal at T [88], namely Ngaronoa v Minister for Immigration and Citizenship (2007) 99 ALD 433 and SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395. The applicant submits that neither authority concerned the application of Pt VIIC of the Crimes Act. In oral submissions, the applicant contended that those authorities concerned the distinct principle that underlying conduct may remain open to consideration notwithstanding the absence of a criminal conviction.

30    The applicant accepts that Pt VIIC does not render underlying conduct immune from consideration. However, he submits that those authorities do not address the circumstance in which a person is required by statute to be treated as never having been convicted of an offence, nor do they support the proposition that the Tribunal was entitled to rely upon the underlying conduct in circumstances where, it is alleged, the conduct came before the Tribunal through material disclosed and utilised contrary to ss 85ZR and 85ZS of the Crimes Act. This is a materially different circumstance given that the applicant was found guilty but not convicted.

31    Particular reliance is placed upon the Tribunal’s observation at T [87] that the applicant “appeared to minimise his offending” during his oral evidence and its reference to the fact that he had been “found guilty of the charges”. The applicant submits that those passages reveal that the Tribunal did more than merely acknowledge the existence of protected facts. Rather, it relied upon the charges and findings of guilt in assessing both his evidence and his character. It is said that the finding of minimisation arose directly from questioning concerning the 2014 offending and remained operative notwithstanding the Tribunal’s statement at T [89] that the underlying conduct did not contribute to its adverse character assessment.

32    The applicant’s procedural fairness case proceeds from the same premise. He accepts that he was generally required to answer questions lawfully put to him before the Tribunal pursuant to s 117 of the ART Act. However, he contends that procedural unfairness arose because questioning concerning the 2014 offending proceeded notwithstanding the protections conferred by Pt VIIC of the Crimes Act.

33    In particular, the applicant relies upon questioning by the Minister’s representative, Ms Lim, which was said to proceed by reference to police records concerning the 2014 offending. The applicant submits that, before that questioning occurred, he ought to have been informed of the protections available under ss 85ZR and 85ZS of the Crimes Act. Although the applicant was legally represented before the Tribunal, junior counsel for the applicant submitted that this fact was of no consequence. Counsel contended that the applicant’s former solicitor’s failure to identify the issue or object to the questioning did not constitute consent and had no bearing upon the operation of the duties said to arise under s 85ZS(1)(d) of the Crimes Act.

34    The applicant submits that, if the Tribunal was minded to inquire about the 2014 offending, procedural fairness required that he be advised of the protections afforded by Pt VIIC before any such questioning proceeded. Had the protections been identified, the questioning which produced the finding of “minimisation” by the Tribunal would not have occurred. The applicant therefore submits that the same conduct which is said to constitute a breach of Pt VIIC also produced a denial of procedural fairness.

35    In support of that contention, the applicant relies on earlier decisions of this Court in which a denial of procedural fairness was found where a decision-maker failed to alert a person to a legally protected entitlement in relation to evidence elicited through questioning: see SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1 at [77] (per Lander J); Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 at [37] (per Allsop CJ).

36    The applicant contends that there is no apparent reason why the obligation identified by Lander J in SZHWY at [75]–[77], namely an obligation to advise a person that they are entitled to refuse to answer particular questions, should be confined to claims of privilege against self-incrimination or legal professional privilege and not extend to the statutory protections conferred by Pt VIIC of the Crimes Act. The applicant emphasises that the disparity in expertise between the Tribunal and the applicant makes the existence of such an obligation particularly important in the present case.

37    Ground 4 concerns the asserted materiality of the errors alleged in grounds 1 and 2. The applicant submits that the Tribunal’s observation that he had “appeared to minimise his offending” was not merely a comment confined to the 2014 offending. Rather, he characterises the observation as an adverse assessment of his credibility. The applicant notes that it was the only occasion upon which the Tribunal expressly impugned his credit and contends that it formed an intermediate step in the Tribunal’s reasoning, informing its later conclusion that he had deliberately withheld information concerning the 2023 conviction. On that basis, the applicant submits that the Tribunal’s treatment of the 2014 offending ultimately affected its assessment of his honesty and character.

38    In that regard, the applicant relies upon Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at [255] (per Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ), for the proposition that “[…] unless it is quite clear that the result would have been no different without the error of law […] it is not for this Court to reach its own conclusions on the papers […]”. The applicant therefore contends that the alleged errors were material and capable of affecting the Tribunal’s ultimate decision.

39    The Minister accepts that the applicant’s 2014 offending resulted in findings of guilt without conviction. The Minister further accepts that, by reason of s 8(2) of the Sentencing Act and the operation of ss 85ZR(2)(b) and 85ZS(1)(d)(ii) of the Crimes Act, the Tribunal was precluded from taking account of the fact that the applicant had been charged with, or found guilty of, those offences. Relying upon WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465, applying Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136 and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 281 CLR 1, the Minister accepts that those provisions were engaged in the applicant’s circumstances.

40    The Minister further noted that, before the hearing of the appeal, portions of the criminal history material and LEAP (Law Enforcement Assistance Program) records contained in the application book had been redacted by the applicant by reason of the operation of Pt VIIC of the Crimes Act. However, the Minister did not seek to rely upon the redacted material before the Court. Rather, the Minister submitted that the issues raised by the appeal could be determined without reference to that material and that it remained for the applicant to establish the alleged Pt VIIC breaches on the materials properly before the Court. During oral submissions, counsel for the Minister also observed that some of the information redacted from the criminal history material was already reflected in the Tribunal’s reasons.

41    The Minister nevertheless disputes that the Tribunal took account of any prohibited matter in reaching its decision. The Minister acknowledges that the Tribunal referred in various places to the charges and findings of guilt arising from the 2014 non-conviction offending, including at T [55] and [79]–[81], but submits that the Tribunal expressly disavowed reliance upon those matters at T [88]. It is the Minister’s view that the Tribunal distinguished between the fact of the charges and the findings of guilt, on the one hand, and the underlying conduct, on the other. In that regard, the Minister points to the Tribunal’s statements at T [88]–[89] (set out above), and at T [103] where the Tribunal explicitly stated it gave no weight to the underlying conduct.

42    The Minister submits that Pt VIIC does not prohibit consideration of the underlying conduct. In support of that proposition, the Minister relies upon Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at [33] (per French CJ, Hayne, Kiefel, Bell and Keane JJ), [63]–[64] (per Gageler J), where the High Court recognised that an administrative decision-maker may determine for administrative purposes whether particular conduct occurred, notwithstanding that criminal liability has not been adjudicated by a court. The Minister submits that the distinction drawn in Today FM between the adjudication of criminal guilt and the administrative assessment of conduct supports the proposition that the Tribunal was entitled to consider the applicant’s conduct independently of any charge, finding of guilt or conviction.

43    The Minister also relies upon Taulahi v Minister for Immigration and Border Protection (2018) 357 ALR 467 at [27]–[31] (per Robertson J, North J and Besanko J agreeing), Chiagozie v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 139 at [43]–[44] (per Collier J), Lewer v Minister for Home Affairs (2023) 299 FCR 13 at [53], [60] (per McElwaine J, Nicholas J and O’Callaghan J agreeing) and Zaharis v Commissioner of Police (2018) 131 SASR 576 at [103] (per Doyle J), together with the authorities cited by the Tribunal in T [88] of its reasons, to contend that those authorities establish that an administrative decision-maker may make findings concerning underlying conduct notwithstanding the absence of, or independently from, a conviction. The Minister submits that the Tribunal was therefore entitled to have regard to the conduct which gave rise to the 2014 offending.

44    As to procedural fairness, the Minister contends that no obligation arose requiring the Tribunal to inform the applicant of any rights said to arise under Pt VIIC before the questioning concerning the 2014 offending occurred.

45    In oral submissions, the Minister referred to Promsopa, and in particular to Allsop CJ’s discussion at [37] of Kohli v Minister for Immigration and Border Protection (2018) 74 AAR 433. In Kohli, Flick J concluded that, notwithstanding the Tribunal’s failure to advise the applicant of his right to invoke the privilege against self-incrimination, that failure occasioned no practical injustice because the applicant was under no continuing risk of being charged with an unlawful driving offence, had denied wrongdoing in relation to the possible theft, and the evidence concerning those matters assumed little relevance in the Tribunal’s ultimate reasoning and conclusion: at [37]–[39]. The Minister submitted that the reasoning in Kohli applied with greater force in the present case because, whatever the applicant said about the relevant charge or conviction, the Tribunal was prohibited by s 85ZS(1)(d)(ii) from taking that fact into account. The Minister also relied upon the fact that, unlike the applicant in Promsopa, the applicant in the present case was legally represented before the Tribunal.

46    The Minister contends that the present circumstances are materially different, namely:

    the applicant was legally represented before the Tribunal; and

    the questions did not require the applicant to disclose legally privileged communications or expose himself to prosecution through self-incriminating answers.

47    Further, Pt VIIC does not confer an immunity from answering questions analogous to the privileges considered in SZHWY and Promsopa. Rather, it regulates the disclosure of, and the taking into account of, information concerning charges and convictions. The Minister therefore submits that those authorities do not establish that the Tribunal was required to intervene in the questioning or advise the applicant of the operation of Pt VIIC before it proceeded.

48    The Minister further submits that no practical injustice has been demonstrated. Even if the applicant had been advised of Pt VIIC, s 85ZS(1)(d)(ii) independently prohibited the Tribunal from taking account of the fact that he had been charged with, or convicted of, the relevant offences. On the Minister’s submission, if the Tribunal nevertheless took account of those protected facts, that question is addressed by grounds 1 and 4; if it did not, the absence of a warning could not have affected the Tribunal’s decision. Ground 2 therefore adds nothing to the applicant’s substantive complaint under Pt VIIC.

5.1.1    Consideration

49    It is common ground that, by reason of s 8(2) of the Sentencing Act and the operation of ss 85ZR(2)(b) and 85ZS(1)(d)(ii) of the Crimes Act, the Tribunal was precluded from taking account of the fact that the applicant had been charged with, or found guilty of, the 2014 offending. The parties also accept that the Tribunal was required to treat the applicant as never having been convicted in relation to the 2014 offending.

50    The principal dispute concerns whether Pt VIIC also precluded the Tribunal from considering the underlying conduct, as opposed to the charges or the findings of guilt in respect of the 2014 offending. I accept the Minister’s submission that it did not.

51    Sections 85ZR and 85ZS are directed to the fact of a charge, conviction or finding of guilt and do not expressly preclude an administrative decision-maker from considering the underlying conduct. That distinction is supported by Today FM at [33], [63]–[64], Taulahi at [31], Chiagozie at [43]–[44] and Zaharis at [103]. Although Ngaronoa and SZRTN, the cases cited by the Tribunal at T [88], arose in different circumstances and did not concern the operation of Pt VIIC, they both support the broader proposition for which they were cited, namely that underlying conduct may be considered independently of the outcome of criminal proceedings. It would be incongruous if the conduct of a person acquitted of a charge could be considered, but not the conduct of a person who had been found guilty of a charge but not convicted.

52    The High Court recently set out the propositions to be applied when evaluating the reasons of a decision-maker. In Morton v Minister for Immigration and Citizenship [2026] HCA 38, Gageler CJ, Jagot and Beech-Jones JJ observed at [37]:

[…] In evaluating those reasons for decision, moreover, certain settled propositions are to be applied including that: (i) a decision-maker’s reasons must be read as a whole; (ii) “[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”; (iii) “in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power”; and (iv) a decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims made by an applicant”. To be borne constantly in mind is that a court “has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone”.

(Footnotes omitted.)

53    The Tribunal’s reasons, read fairly and as a whole rather than by isolating individual passages from their context, reveal an appreciation and application of the distinction between consideration of underlying conduct on the one hand, and non-convictions or findings of guilt or fact on the other. At T [88], the Tribunal expressly stated that it could not regard the applicant’s findings of guilt as convictions for any purpose, before considering the underlying conduct. Importantly, the Tribunal concluded at T [89] that the conduct which occurred in 2014 did not contribute to its finding that the applicant was not of good character. That proposition was reiterated at T [103], where the Tribunal stated that it had “not given weight” to the underlying conduct which resulted in the applicant’s non-conviction disposition.

54    The applicant nevertheless relies upon the observation at T [87] that he had “appeared to minimise his offending”. Properly understood, his submission is that the Tribunal formed an adverse assessment of the applicant’s evidence in 2025 and that this finding remained operative notwithstanding the Tribunal’s express exclusion of the 2014 conduct from its considerations.

55    I do not accept that submission. The observation was made in the course of discussing the applicant’s evidence concerning the conduct underlying the 2014 offending. The reasons do not indicate that the Tribunal treated it as an independent adverse credibility finding or subsequently relied upon it in determining the applicant’s character. The difficulty for the applicant is not that the Tribunal was incapable of reasoning in the manner alleged. Rather, the reasons do not disclose that it did so.

56    The Tribunal’s discussion at T [90]–[95] of the applicant’s failure to disclose his 2023 conviction proceeded by reference to the citizenship application, the citizenship test appointment, the relevant departmental records and the Tribunal’s rejection of the applicant’s explanation for his repeated failure to disclose his 2023 conviction. The Tribunal did not refer back to the earlier observation that the applicant had “appeared to minimise his offending” or otherwise indicate that its conclusions concerning deliberate non-disclosure were informed by its treatment of the 2014 matters. Rather, the reasoning process disclosed in those paragraphs proceeded independently of the Tribunal’s earlier discussion concerning the 2014 offending.

57    I also reject the applicant’s procedural fairness complaint. The questioning was conducted by the Minister’s representative, Ms Lim, rather than by the Tribunal itself and the applicant was, moreover, legally represented. Further, SZHWY at [75], [158]–[163] and Promsopa at [37], [41]–[45] concerned materially different circumstances involving claims of legal professional privilege and the privilege against self-incrimination, respectively. Part VIIC does not confer a comparable immunity from answering questions. Rather, it regulates the disclosure of, and taking into account of, specific information concerning the fact of the charges and convictions, as set out in paras (a)–(d) of s 85ZS(1). Those authorities do not support the proposition that the Tribunal was obliged to intervene in questioning conducted by the Minister’s representative or advise the applicant of the operation of Pt VIIC before that questioning proceeded.

58    The applicant’s reliance upon Haritos does not assist. The difficulty is not whether the Court can be satisfied that the result would inevitably have been the same absent the alleged error. Rather, the applicant has not established the factual premise upon which his materiality argument depends. The Tribunal’s reasons do not disclose that the observation at T [87] that the applicant had “appeared to minimise his offending” informed its subsequent reasoning concerning the applicant’s failure to disclose his 2023 conviction. The asserted connection between those matters is therefore not apparent from the Tribunal’s reasons. The applicant’s materiality argument therefore depends upon a causal connection that is not revealed by the Tribunal’s reasons.

59    For those reasons, I am not satisfied that the Tribunal took account of a matter prohibited by Pt VIIC, denied the applicant procedural fairness, or relied upon its treatment of the 2014 offending in reaching its conclusions concerning the 2023 conviction. Grounds 1, 2 and 4 should therefore be dismissed.

5.2    Ground 3: Deliberate withholding of information

60    By ground 3, the applicant contends that the Tribunal’s findings concerning the applicant’s failure to disclose his 2023 conviction were legally unreasonable.

61    The applicant points to his sworn evidence before the Tribunal that, when attending the citizenship test appointment, he informed the officer conducting the appointment that he was “under an intervention order”. In the applicant’s submission, a statement that a person is “under an intervention order” may naturally be understood as disclosing the existence of a matter requiring further attention, even if it does not amount to a literal disclosure of the offence of breaching an intervention order. The applicant advances that this evidence was inherently plausible. Accordingly, one available conclusion might have been a misunderstanding about what needed to be disclosed. But, in the applicant’s submissions, on no view would this amount to “deliberate withholding” of relevant information, in the sense of purposeful dishonesty.

62    Against that background, the applicant challenges the Tribunal’s rejection of his evidence that he informed the officer of the matter. The Tribunal found at T [93] that it did not accept that the applicant “[…] told the officer at his appointment about his criminal conviction” because, had that occurred, “[…] the officer would have recorded this fact in the file note, as the officer did record the disclosure of the 2011 drink driving episode”. Although the Tribunal accepted at T [94] that the omission of the conviction from the citizenship application form may have been an “accidental omission”, it concluded that the failure to correct the record at the citizenship test appointment meant that the applicant had “deliberately withheld” the 2023 conviction from the Department.

63    The applicant submits that the finding of deliberate withholding was not reasonably open on the material before the Tribunal. In particular, he contends that the evidence did not support a finding of purposeful dishonesty.

64    The applicant also takes issue with the Tribunal’s reference at T [94] to “[…] subsequent communication with the Department”. It is submitted that this aspect of the reasoning lacked an evidentiary foundation because there was no evidence of any communication between the citizenship test appointment and the Department’s letter dated 28 August 2023. The applicant’s challenge to those findings focusses upon the departmental record relied upon by the Tribunal (that is, the “file note” referred to at T [93]). That record appears to be a partial screenshot from a departmental system and bears the title “Test Only Appointment - Test Registration”. The applicant submits that the record appears to have been created for the purpose of recording information provided at the registration stage of a citizenship test appointment. However, there is no indication of who created the record or when it was created.

65    The applicant further notes that, notwithstanding the reference in the Department’s correspondence dated 12 July 2023 to a citizenship “interview”, neither the record nor the relevant Citizenship Procedural Instruction 26 – Australian Citizenship Test discloses any formal questioning process undertaken at the appointment. Nor, it is said, is there any evidence of the question that elicited the information recorded in the field for “Offences declared”. The applicant also emphasises the structure and content of the record itself. The “Offences declared” field records only that the applicant’s licence was suspended for three months in 2011 for drink driving, with the input of the following text in the field: “Yes, licence got suspended for three months in 2011 - drink driving”. The applicant submits that the record provides no basis for determining whether additional information may in fact have been provided orally by the applicant but not recorded, or whether the relevant fields even permitted the recording of more extensive information than appears in the screenshot.

66    The applicant also points to the Minister’s delegate’s acknowledgement that past criminal offending “may be hard to discuss in the counter area for your test”. It is submitted that this tends against the conclusion that the record constituted a complete account of everything said at the appointment.

67    Viewed in that context, the applicant contends that it was not legally reasonable for the Tribunal to infer that he had failed to disclose the 2023 conviction and, further, that he had deliberately withheld that information. The applicant submits that the departmental record did not provide an intelligible basis for a finding of purposeful dishonesty. In that regard, he relies upon Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (per Hayne, Kiefel and Bell JJ) for the principle that “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.

68    The Minister disputes the applicant’s characterisation of the Tribunal’s reasoning.

69    The Minister submits that the finding of deliberate withholding was not based solely upon what occurred at the citizenship test appointment. Rather, the Tribunal considered both the applicant’s failure to disclose the 2023 conviction when lodging his citizenship application on 19 June 2023 and his subsequent failure to disclose that offending at the citizenship test appointment on 26 July 2023. The Minister contends that the Tribunal was entitled to consider those matters cumulatively.

70    The Minister further submits that the departmental record provided an evidentiary foundation for the Tribunal’s findings. The record was expressly created in connection with the applicant’s citizenship test appointment, contained a field named “Offences declared”, and recorded the applicant’s disclosure of the 2011 drink driving matter. The Minister submits that it was reasonably open to the Tribunal to infer that, had the applicant disclosed the 2023 conviction at that appointment, the person creating the record would similarly have recorded that information.

71    The Minister submits that the Tribunal was not bound to accept the applicant’s evidence that he informed the officer that he was “under an intervention order”. Nor was it required to accept the proposition that the departmental note was incomplete or inaccurate. The Tribunal was entitled to regard the record as contemporaneous evidence of what occurred during the appointment and to prefer it to the applicant’s account.

72    Accordingly, the Minister submits that the Tribunal’s reasoning does not approach the high threshold required to establish legal unreasonableness: Li at [76]. See also Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [26] (per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). Even accepting that the omission from the citizenship application may have been accidental, the Tribunal was entitled to conclude that the applicant thereafter failed to correct the position and had deliberately withheld the information from the Department. The Minister submits that this reasoning was neither irrational nor lacking an evident and intelligible justification within the meaning of Li at [76].

5.2.1    Consideration

73    I do not accept the applicant’s unreasonableness challenge to the Tribunal’s finding that he deliberately withheld information concerning the 2023 conviction.

74    The Tribunal’s conclusion was not based solely upon the failure to disclose his 2023 conviction at the citizenship test appointment. Rather, it proceeded from the applicant’s failure to disclose the 2023 conviction in his citizenship application, his subsequent failure to disclose it during the citizenship test appointment, and his failure to disclose the conviction in any subsequent communications with the Department. The Tribunal observed that, even if the failure to disclose the conviction in the citizenship application were accepted as an accidental omission, the applicant subsequently had the opportunity to correct the position at the citizenship test appointment and in later communications with the Department. The finding of deliberate withholding was open to the Tribunal on the evidence before it.

75    Nor do I accept the applicant’s submission that the departmental record was incapable of supporting the Tribunal’s reasoning. As stated above, the record was created in connection with the citizenship test appointment, contained a field named “Offences declared”, and recorded the applicant’s disclosure of the 2011 drink driving matter. In those circumstances, it was reasonably open to the Tribunal to infer that, had the applicant disclosed the 2023 conviction, that information would also have been recorded. A conviction for a serious offence such as one involving family violence would be an important matter to record.

76    The applicant identifies a number of alternative possibilities, including that additional information may have been provided but not recorded, that the note may have been incomplete, or that there may have been some misunderstanding between the officer and the applicant. However, those possibilities do not establish legal unreasonableness. At most, they demonstrate that competing inferences were available on the evidence. The Tribunal was not bound to adopt the inference preferred by the applicant.

77    The applicable question is not whether another conclusion was available, but whether the conclusion reached by the Tribunal lacked an evident and intelligible justification: Li at [76]. Here, the Tribunal was faced with a citizenship application that omitted to disclose the 2023 conviction, a departmental record recording disclosure of the 2011 drink driving offence but not the 2023 conviction, and the applicant’s explanation that he had nevertheless disclosed the matter during the appointment. The Tribunal was entitled to reject that explanation and to conclude that the information had been deliberately withheld. Such a conclusion was reasonably open to the Tribunal on the material before it.

78    The applicant also relies upon the absence of evidence identifying the author of the record, the questions asked during the appointment and the precise circumstances in which the note was created. However, those matters went to the weight to be accorded to the note rather than its rational probative value. The Tribunal was entitled to regard the record as contemporaneous evidence of what occurred during the appointment and to prefer it to the applicant’s recollection.

79    Viewed as a whole, the Tribunal’s reasoning was not legally unreasonable, did not involve irrationality or illogicality and did not constitute a conclusion lacking an evident and intelligible justification. The finding that the applicant had deliberately withheld information concerning the 2023 conviction was open on the material before the Tribunal. Ground 3 should therefore be dismissed.

5.3    Ground 5: Misunderstanding of evidence

80    By ground 5, the applicant contends that the Tribunal misunderstood or misconstrued the evidence of his wife and sister. At the hearing, the applicant abandoned this challenge insofar as it concerned his sister’s evidence. Accordingly, the sole remaining complaint under this ground concerns the Tribunal’s treatment of the evidence of his wife, Ms Shirzoi.

81    The applicant challenges the Tribunal’s finding at T [65] that Ms Shirzoi “[…] knew that her husband failed to disclose these matters on his citizenship application and during his citizenship [test] appointment, but again reiterated that everyone makes mistakes”. The applicant submits that Ms Shirzoi gave no evidence concerning any failure to disclose the 2023 conviction during the citizenship test appointment. Although she was asked questions that referred to both the citizenship application and the citizenship test appointment, the applicant contends that Ms Shirzoi’s answers did not demonstrate an appreciation that the questioning extended to the citizenship test appointment.

82    The applicant contends that the Tribunal therefore attributed a meaning to Ms Shirzoi’s evidence that it could not reasonably bear. It is submitted that her evidence went no further than acknowledging mistakes on the part of the applicant generally and did not amount to an acceptance that he failed to disclose the 2023 conviction during the citizenship test appointment.

83    The applicant further submits that, although the Tribunal did not expressly state that it relied upon Ms Shirzoi’s evidence as corroboration of its findings concerning non-disclosure of the 2023 conviction, neither did it disclaim reliance upon that evidence. The applicant contends that the better inference is that the Tribunal attributed some probative value to its understanding of her evidence when assessing whether the applicant had failed to disclose the conviction and had deliberately withheld that information from the Department.

84    The applicant submits that the significance of the alleged misunderstanding is heightened by what is said to be the limited evidence otherwise supporting the finding of deliberate withholding. It is contended that the Tribunal’s misunderstanding of Ms Shirzoi’s evidence was capable of reinforcing its conclusion that the applicant had been dishonest in his dealings with the Department and, consequently, that he was not of good character for the purposes of s 21(2)(h) of the Australian Citizenship Act.

85    On the other hand, the Minister submits that the Tribunal’s finding concerning Ms Shirzoi was open on the evidence before it. During cross-examination before the Tribunal, Ms Shirzoi was asked why, despite being aware that the applicant had failed to disclose the offending on two occasions, she had not referred to those matters in her character reference. The Minister contends that her response, namely that the applicant had “[…] made those mistakes in the past” and was regretting them, permitted the Tribunal to conclude that she understood the reference to encompass both the citizenship application and the citizenship test appointment.

86    More fundamentally, the Minister contends that the ground fails because any misunderstanding of the evidence was not material. The Tribunal did not subsequently return to Ms Shirzoi’s evidence when making its findings concerning non-disclosure of the 2023 conviction. Rather, its reasoning at T [90]–[95] focussed upon the applicant’s own evidence, the citizenship application, the citizenship test appointment and the relevant departmental records. The Minister therefore submits that any misinterpretation of Ms Shirzoi’s evidence played no material role in the Tribunal’s ultimate conclusions.

5.3.1    Consideration

87    I do not accept the applicant’s challenge to the Tribunal’s treatment of Ms Shirzoi’s evidence.

88    The applicant is correct that Ms Shirzoi did not expressly state that the applicant failed to disclose the 2023 conviction during the citizenship test appointment. Her evidence was given via an interpreter in response to questions which referred to failures of disclosure on two occasions, and her answers were framed in general terms: “[h]e made those mistakes in the past and he is regretting them all”, and when asked a second time: “[…] he made those mistakes previously, he is a good person”. The Tribunal’s only reference to Ms Shirzoi’s evidence is at T [65] and that paragraph fairly summarises her responses.

89    The Tribunal’s conclusions concerning non-disclosure of the 2023 conviction were set out at T [90]–[95]. Those conclusions were based upon the citizenship application, the citizenship test appointment, the relevant departmental record and the Tribunal’s rejection of the applicant’s explanation. Having mentioned Ms Shirzoi’s evidence at T [65], the Tribunal did not subsequently refer to it when addressing whether the applicant had deliberately withheld information about his 2023 conviction from the Department.

90    The logical flow of the Tribunal’s reasoning does not suggest that Ms Shirzoi’s evidence played any role, let alone a significant role, in the impugned findings. The Tribunal’s analysis of the disclosure issue proceeded by reference to the applicant’s own evidence and the documentary material before it. Read fairly and as a whole, the reasons do not indicate that the Tribunal treated Ms Shirzoi’s evidence as corroboration of its conclusions concerning non-disclosure of the 2023 conviction.

91    The applicant submits that, because the evidence supporting the finding of deliberate withholding was limited, the Tribunal’s apparent misunderstanding of Ms Shirzoi’s evidence was capable of reinforcing its conclusion that he had acted dishonestly. However, the Tribunal’s reasons do not reveal such a process of reasoning. The finding that the applicant had deliberately withheld information from the Department was reached by reference to the Tribunal’s assessment of the citizenship application, the citizenship test appointment and the relevant departmental records. The Tribunal did not rely upon Ms Shirzoi’s evidence as corroboration of, or a basis for, its conclusion.

92    In those circumstances, even if the Tribunal misunderstood or overstated aspects of Ms Shirzoi’s evidence, the applicant has not established that the alleged error could realistically have affected the outcome. Accordingly, ground 5 should be dismissed.

6.    Conclusion

93    For the reasons set out above, none of the grounds of appeal has been established. While I am satisfied that it is appropriate to grant the applicant an extension of time within which to appeal pursuant to s 174(2) of the ART Act, the appeal itself should be dismissed with costs.

Associate:

Dated:    28 October 2026