Abdallah and Minister for Immigration and Border Protection (Citizenship) - [2018] AATA 1259

Abdallah and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1259 (14 May 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5029
Re:Mazhar Abdallah
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member

Date:14 May 2018
Place:Sydney

The decision under review is set aside and is remitted under s 43(1)(c)(ii) to the Department with a direction that the Applicant satisfies the requirements of s 21(2) of the Australian Citizenship Act 2007 (Cth).
.....................[SGD]...................................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – application of Citizenship Policy – good character – domestic violence – decision set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s43
Australian Citizenship Act 2007 (Cth) ss 20, 21
CASES
Darwich v Minister for Immigration and Citizenship [2007] AATA 2016
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fahiye v Minister for Immigration and Border Protection [2016] AATA 374
Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad v Minister for Immigration and Border Protection [2017] AATA 1506
Re Aston v Secretary, Department of Primary Industry (1985) 8 ALD 366
Sharma v Minister for Immigration and Border Protection [2015] AATA 608
Shi v Migration Agents Registration Authority [2008] HCA 31
Wendy Susan Baker v Department of Immigration and Ethnic Affairs [1995] AATA 13
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
Aristotle Politics III.v.8
REASONS FOR DECISION
Chris Puplick AM, Senior Member
14 May 2018

Mr Mazhar Abdallah (the Applicant) is a citizen of Lebanon who arrived in Australia on

30 September 2011.[1] The Applicant currently holds a Permanent Resident Visa (subclass BC 100).
[1] Respondent Statement of Facts, Issues and Contentions at para [2]. The Applicant gave the arrival date as 29 October 2011 in Applicant Statutory Declaration (20.04.16).
While in Lebanon the Applicant met Jinan Chouman (Ms Chouman) sometime in 2005 during one of her periodic visits there. Ms Chouman is a long-term resident of Australia on a permanent resident visa. They were married in Lebanon on 19 November 2011. At the time of the Applicant’s arrival in Australia Ms Chouman had already given birth to their first child, Hasnaa on 26 August 2010. A second child, Taha was born in July 2012.
The Applicant and Ms Chouman separated on 15 January 2012. At the time of this separation Ms Chouman was pregnant with the couple’s second child.
Between their separation in 2012 and divorce in 2015, on 3 February 2012 there occurred an incident of domestic violence. According to the Police records, the Applicant arrived at
Ms Chouman’s house and behaved in a verbally threatening manner, and subsequently “slapped the victim’s hand that was on the pole to gain entry into the front door where the daughter was.”[2] The victim’s hand was left with a red mark. The pole in question was “a vertical Pole (sic) attached to the porch” of the house in question. [3]
[2] Police Facts Sheet dated 29 February 2012: Tribunal Documents [84]-[88] at [86].
[3] Ibid.
As a result of this incident, the Applicant appeared in the Bankstown Local Court on
1 March 2012 where he was handed an Apprehended Violence Order (AVO) and released on conditional bail. The AVO prohibited the Applicant from stalking, threatening, intimidating or approaching the victim (other than through legal representatives).[4]
[4] Tribunal Documents at [80].
The AVO extended to “persons having a domestic relationship” with the protected person.
On 30 March 2012 the Applicant approached Ms Chouman, again outside her home and said certain words to her which she apparently found threatening. The Applicant demanded to see his daughter. This demand was refused.[5]
[5] Police Facts Sheet dated 3 April 2012: Tribunal Documents at [81].
On 21 May 2012, the Applicant was charged with the offence of common assault (the domestic violence incident of 3 February); was convicted; and was placed on a 12 month good behaviour bond. He was also convicted of the offences of stalking (this relating to events immediately preceding the actual act of domestic violence) and contravention of an AVO (referring to the events of 30 March 2012). For the first of these offences he was fined $500 and placed on a 12 month good behaviour bond, and for the latter (the AVO) placed on a 12 month good behaviour bond.[6]
[6] National Police Certificate: Tribunal Documents at [53].
In the Respondent’s Statement of Facts, Issues and Contentions it is stated that on 22 June 2012 the Applicant was again “tried for an offence of ‘contravene prohibition/restriction in AVO’ in respect of his conduct on 30 March.”[7]
[7] Respondent Statement of Facts, Issues and Contentions at para [2.6].
It is unclear whether this charge related to the incident of 30 March 2012, which had previously been dealt with by the Court on 21 May 2012 and could not be dealt with again. On the other hand, there is no record before the Tribunal of if or when a second alleged breach of the AVO may have taken place.
In extensive discussions with the representatives of both parties it was not possible to come to any definitive conclusion, from either the evidence or their own knowledge as to what exactly were the circumstances (or the date of any alleged offence) leading to the further breach of AVO charges.
In any event, whatever matter was before the Court on 22 June 2012, the Magistrate, who had before him evidence from Ms Chouman dismissed the charge as not proven. [8]
[8] Tribunal Document at [90].
A little under a year later, the Applicant and Ms Chouman (who was still married to
Ms Chouman although they were separated) began to have regular access to his children each Sunday.
On 10 December 2015 the Applicant applied for a grant of citizenship by conferral.[9] In the normal course of such events, the Applicant was given notice that the Department had material before it adverse to his application and was invited to comment on this[10]. He did so by providing the Department statutory declarations from himself, from friends, and from clients.[11] After due consideration of the statutory declarations, the Minister’s delegate determined that the Applicant was not a person of good character under the test required by the Australian Citizenship Act 2007 (Cth) (the Act) and refused his application.
[9] Tribunal Documents at [19]-[30].
[10] Tribunal Documents at [56]-[62].
[11] Tribunal Documents at [64]-[75].
In relation to this application the Tribunal notes that there was no attempt on the part of the Applicant to conceal the fact that he had been convicted of offences. The Applicant answered this section on the application form truthfully.[12] Similarly, he provided full and complete details of those matters when asked to do so by the Department and again made no attempt to be less than frank with them in his dealings.[13]
[12] Tribunal Documents at [27].
[13] Tribunal Documents at [12].
It is from that decision, by application dated 23 August 2017, that the Applicant now appeals to this Tribunal for review.[14]
[14] Tribunal Documents at [1]-[6].
THE LEGISLATIVE FRAMEWORK
Applications for citizenship by conferral must be assessed according to the statutory requirements set out in the Act in ss 20 and 21. In making determinations under s 21, the decision-maker is provided guidance by the Department of Immigration and Border Protection Citizenship Policy (the Policy) issued by the Minister effective from 1 June 2016.
S 21(2) of the Act sets out eight criteria, listed (a) to (h), each of which must be met by any applicant. In addition, a “citizenship test” must be passed (section 21(2A)).
The delegate found that the Applicant had satisfied criteria (a) to (g), had passed the citizenship test, but had failed criteria s 21(2)(h) which requires that the Applicant:
“is of good character at the time of the Minister’s decision on the application.”
As a result the Applicant’s citizenship application was refused.[15]
[15] Tribunal Documents at [7]-[18].
APPLICATION OF THE LEGISLATIVE FRAMEWORK
(a)The delegate’s determination
The basis for the decision that the Applicant was not “of good character” is set out in the delegate’s reasons:
“I am satisfied that you have been convicted of Common Assault (DV) – T2, Stalk/intimidate intend physical fear etc harm (domestic) – T2 and Contravene prohibition/restriction in AVO (domestic) and they are therefore considered to be serious.”
“I consider the offence you have committed to be at the high range of seriousness as it is contrary to the Australian Society’s values.”
The delegate’s decision, although referring to “the” offence when more than one was on foot, turns upon the degree of “seriousness” which attaches to the matters for which the Applicant has been convicted.
(b)What does “good character” mean?
The Act contains no definition of what constitutes “good character” but in making its determination the Tribunal is guided by judicial interpretation and by the Policy.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, the Full Federal Court stated:
“Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community.”[16]
[16] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431] – [432].
It is further accepted that there should also be some evidence that what a person says, does, or what they are heard to say, or seen to do, should be taken as evidence of their acceptance of the values and norms to which they are expected to adhere and be loyal.[17]
[17] Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
The Policy elaborates this by attaching to the phrase “enduring moral qualities” the further qualifications, namely:
·“characteristics which have been demonstrated over a very long period of time;
·distinguishing right from wrong;
·behaving in an ethical manner, conforming to the rules and values of Australian society.” [18]
[18] Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) p145.
Policy however is not the same as law. As this Tribunal said in Re Aston v Secretary, Department of Primary Industry (1985) 8 ALD 366:
“Policy is not law. A statement of policy is not a prescription of binding criteria.”[19]
[19] Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (6 November 1985) at [21].
Nevertheless, I must give due and proper consideration and weight to the statement of policy which has been issued by the Government to assist and guide in the determination of questions of good character.[20]
(c)Domestic Violence
[20] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115.
This Tribunal has made it abundantly clear that it regards domestic violence as a serious matter which will be given considerable regard when assessing matters such as citizenship applications.
In Sharma v Minister for Immigration and Border Protection [2015] AATA 608 Deputy President Constance made it clear that:
“The Australian Citizenship Instructions provide that crimes of violence are to be regarded as serious offences. This is particularly so in the case of domestic violence. Such conduct is fundamentally inconsistent with the standards of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.”
He repeated this in Prasad v Minister for Immigration and Border Protection [2017] AATA 1506:
“Domestic violence, in any form and in any circumstances, is fundamentally inconsistent with the standard of behaviour expected by the Australian community.” [22]
[22]Prasad and Minister for Immigration and Border Protection [2017] AATA 1506 at [32].
This matter of seriousness has been discussed in Fahiye v Minister for Immigration and Border Protection [2016] AAT 374 where the Tribunal stated:
“[19] Criminal convictions are relevant in determining good character. In Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132, Deputy President Wright said:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.
[20] The ACIs require decision makers to turn their minds to any mitigating factors that might mean an applicant is of good character despite his or her criminal convictions. These factors include: the passage of time since offending; whether the person has accepted responsibility and shown remorse; extenuating circumstances related to the offences; whether the person has engaged in anger management counselling; evidence of employment; and, references from independent people and employers.” [24]
[24] Fahiye and Minister for Immigration and Border Protection [2016] AATA 374 at [19]-[20].
Similarly in Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326 the Tribunal stated:
“A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.” [25]
[25] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].
Thus, judicial authority makes it clear that:
·Prima facie acts of domestic violence are regarded as serious departures from the norms and expectations of the Australian community;
·However, all convictions, if they are to be weighed for or against an individual in their application for citizenship, must be examined in their own context and circumstances;
·There is a difference between offences which can be regarded as minor or lesser in character and those which are major or weightier;
·The Tribunal has a duty to undertake that weighing process in coming to its own conclusions; and
·Those conclusions must be based on the evidence before the Tribunal at the time of its own decision making and must take into account any evidence which is before it but which might not have been before the original decision maker.[26]
[26] Shi v Migration Agents Registration Authority [2008] HCA 31 per Kirby J at [37].
DISCUSSION
The two convictions of the Applicant relate to:
(a)the actual act of domestic violence (and the associated stalking matter); and
(b)the breaching of the AVO.
In relation to the first, the starting point should be the finding of the Court. In this instance the Court, having heard all the evidence, saw it as appropriate to impose on the Applicant a good behaviour bond for a period of twelve months. This is clear judicial recognition that the offence in question was at the lower end of the scale. There was no fine imposed.
I think it fair to say that this Court determination would be seen as appropriate by any fair-minded member of the Australian community. The victim, although possibly traumatised by the whole confrontation suffered a slap on the hand which caused momentary pain and left a (temporary) red mark.
It was not in my view a “serious” assault, let alone, in the delegate’s words “at the high range of seriousness”. It did not cause any actual or lasting bodily harm.
Surrounding the slap incident are allegations of threatening words spoken by the Applicant. These are recorded in the Police Facts Sheet dated 29 February 2012, 26 days after the incident took place. The Facts Sheet in its first line reads: “The accused is of Non-English speaking background and only speaks very minimal English.” [27] The Police Report goes on to state that “the accused was continuously yelling at the family making such threats as:
“You don’t know me, I’ll get you all one by one” and
“Call them (the Police), call them. I’ll take the cops guns and shoot them.”[28]
[27] Tribunal Documents at [85].
[28] Tribunal Documents at [86].
I presume these statements are based on evidence supplied to the Police by members of the family who were present: Ms Chouman and her mother, brother, sister and nephew.[29] In evidence under oath the Applicant denied ever speaking these words. I am inclined to believe him on this point, as at this time he was only speaking Arabic to his family. There may be matters of subtle differences in translation between English and Arabic, and in any event I am not sure that his knowledge of English would have given him sufficient familiarity as to use a slang term like “cops”.
[29] Tribunal Documents at [85].
In relation to matters surrounding the breach of the AVO, a Police Report dated 3 April 2012, referring to the incident on 30 March 2012 makes it clear that: “Due to the accused not speaking English, Police allowed the accused the opportunity to contact his legal representative” when he was taken into custody.[30]
[30] Tribunal Documents at [82].
On this occasion, and again under oath, the Applicant admitted that he had spoken words recorded to this effect but that he spoken in Arabic. I again express my concern about the accuracy of any translation on the part of those present who were obviously not on good terms with the Applicant.
Equally, an Australian observer may interpret the imprecation “Fear God” as allegedly spoken by the Applicant to Ms Chouman in one way while a Sunni Muslim (the Applicant) may well put an entirely different construction on it. [31]
[31] Tribunal Documents at [81].
A lack of English, at least at that time, may well have contributed to a failure to understand the full import of the AVO and the responsibilities it imposed which, together with the understandable desire of the Applicant to see his young daughter may go some way to putting these matters in a more authentic context. This at least, is the contention of the Applicant.
The conversations as reported are relied upon by the Respondent to a significant degree in coming to the determination that the Applicant is not of good character.[32]
[32] Respondent Statement of Facts, Issues and Contentions at para [2.3].
Similarly, the Respondent weighs adversely for the Applicant, the statement in the Police Facts Sheet that “For the duration of the accused and victims (sic) relationship and marriage they had several domestic violence incidents” and the description of the
[33] Tribunal Documents at [80].
[34] Respondent Statement of Facts, Issues and Contentions at para [20].
3 February incident as “another” domestic violence incident.[33] This informs another part of the Respondent’s case.[34]
There is no direct evidence anywhere to sustain this assertion. It may well be that one party gave such an impression to the Police in support of one version of their story but it may well be that the other party had no opportunity to refute such an assertion. It is certainly not supported by any independent evidence or corroboration. In evidence the Applicant admitted that sometime in November 2011 he and Ms Chouman had an argument. It must have been sufficiently loud, or public, for the neighbours to have called the Police. The Police apparently attended the family home but after speaking to
Ms Chouman, who made no complaint, they left without any further action being taken.

I am not prepared to assign this the status of an act of “domestic violence” and hence I do not accept the Police characterisation of the couple’s relationship as being one marked by “several domestic violence incidents”.[35] I consequently discount the Respondent’s reliance upon such unsupported reportage.
[35] Tribunal Documents at [80].
Finally I note that the Respondent seeks to characterise the Applicant’s overall conduct as involving “a prolonged and calculated campaign of harassment.”[36] I see absolutely no basis for this hyperbole and none was presented by the Respondent before the Tribunal.
[36] Respondent Statement of Facts, Issues and Contentions at para [22].
None of the concerns on my part should be taken as in any way seeking to lessen the seriousness with which this Tribunal regards incidents of domestic violence. Any form remains unacceptable, but not all incidents are to be treated as being equal, although the Respondent in answer to a question directly from the Tribunal affirmed that it was the position of the Secretary that “all acts of domestic violence are ‘very serious’ offences.”
I am not sure that this is a sustainable proposition when all authority in this Tribunal and the Courts tends to suggest that the Tribunal should undertake a “weighing” exercise when determining the “seriousness” of matters related to criminal or other offending behaviour.
The principle that injustice results as much from treating unequals equally as from treating equals unequally was established as far back as Aristotle.[37]
[37] Politics III.v.8
In my view, it was not reasonable for the delegate to conclude that the Applicant’s offence(s) reached the level of being serious enough as to constitute a solid basis for the rejection of the Applicant’s citizenship application on character grounds.
EVIDENCE BEFORE THE TRIBUNAL
Written evidence in the form of character references were provided for the Tribunal’s consideration.
Perhaps the most important and striking of these is a written statement from
Ms Chouman, the Applicant’s (now) ex-wife and the victim of the domestic violence and stalking incidents, and the breach of AVO offences. Ms Chouman’s statement is short and can be reproduced in full. It is in the form of a Statutory Declaration, the Department’s preferred status of material.[38]
“I declare the following to be true: Domestic Violence was approx 5 years ago. Relationship now is based on family bonds. Mazhar and I share two children, Mazhar sees them Sundays and this relationship is essential for their attachment and bonding with their father. There are no arguments or violence since the last AVO and he presents with a caring nature towards his children and there is mutual understanding and respect.”[39]
[38] “More weight should be given to references made as statutory declarations than those which are not.” Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) p155.
[39] Tribunal Applicant’s Documents A1 (dated 20 September 2017).
There are eight character references in the Tribunal Documents and two submitted later.[40] Each is in the form of a Statutory Declaration and each includes reference to the Applicant’s criminal conviction. With this knowledge the referees attest to the Applicant’s degree of remorse over the domestic violence incident, his commitment to his children, his record since that event of compliance with the law and his recent establishment of his own plumbing and gas fitting business.[41]
[40] Tribunal Documents at [64]-[72] and Tribunal Applicant’s Documents at A5 and A6.
[41] The establishment of the business is attested to by a record of registration as a business name [T-94], a tradesperson certificate [T-95] and an ABN Register certificate (Tribunal Applicant’s Documents A3].
To the extent that these personal references make reference to the Applicant’s criminal convictions, I do not accept the Respondent’s urging that I should “give little weight” to these “as it is not clear that the Applicant has discussed with the deponents the true nature and extent of the offences for which he was convicted.”[42]
[42] Respondent statement of Facts, Issues and Contentions at para [28]
Indeed, at the invitation of the Tribunal, the Respondent pressed the Applicant under cross-examination about the degree and under what circumstances he had informed several of his referees about the details of his criminal convictions. The Applicant explained that in discussions with the deponents he had been clear about his previous criminal convictions and about his relationship issues. I found his answers direct, comprehensive and credible.
I give considerable weight to the statement of Ms Chouman and take the other nine references as contributing significantly to the assessments of the Applicant’s good character.
I note that the Respondent draws attention to the fact that the Applicant has at times, in his Statutory Declaration, sought to deny that he actually slapped his wife’s hand;[43] that he pleaded not guilty to the offences for which he was convicted, and that other documents before the original decision maker fail to indicate an appropriate degree of remorse for his behaviour.[44] I agree that this does not count favorably for the Applicant and that the delegate was right to give some weight to this.
[43] Applicant’s Statutory Declaration (dated 20 April 2016) Tribunal Documents at [73].
[44] Respondent Statement of Facts, Issues and Contentions at para [29].
However, obviously with the benefit of hindsight, the Applicant in his more recent Statutory Declaration (7 December 2017) does address these issues – but as I have noted, this is with the benefit of hindsight.[45] Nevertheless the evidence of some degree of reconciliation with Ms Chouman and their apparent determination to establish a better and continuing relationship for the sake of their children is a material factor for my consideration.
[45] Applicant’s Tribunal Documents A2.
The Applicant was called to give evidence. No questions were put to him by his representative but he was subject to lengthy cross-examination by the Respondent’s representative and was also asked a few clarifying questions by the Tribunal itself. The Applicant was assisted by a qualified interpreter although there is no doubt that he exhibited signs of stress and emotional discomfort during the process.
The Respondent sought to establish details of the Applicant’s financial position, his financial support for his children, his domestic situation and his business activities. I found some of these questions quite tangential to the matter of establishing a test of character.
The Tribunal learned that the Applicant had stable, if in the Respondent’s words “humble” accommodation; that his newly established business was suffering the familiar cash-flow problems not unknown for start-up operations, that he was single and that he was paying an annual amount of $6,500 through the Child Support Agency for support of his children. The Applicant indicated (without documentary evidence) that he also paid for some of his children’s other expenses and occasionally (when he could afford it) gave extra money to Ms Chouman. He provided documentary evidence that he was paying the school fees ($855/$950 per term) for his two children to attend a private Islamic college. [46]
[46] Applicant’s Tribunal Documents at A4.
The Respondent next took the Applicant through his relationship with his children and
[47] Tribunal Documents at [92].
Ms Chouman. This established for the Tribunal that the Applicant is devoted to his children and seeks to maximize his time with them. He has adhered to all the points that were settled in terms of a Parenting Plan with Ms Chouman.[47] Additionally, Ms Chouman is now happy for him to have additional access to the children. In providing a reference in support of the Applicant Ms Chouman confirms that they are now able to get along as friends, that she does not feel threatened by him and that both of them are anxious for him to be involved in the future of his children.
I have mentioned the Applicant’s response to questions about his sharing information with his referees so that they could give an accurate response in full knowledge of his background.
The Respondent asked no questions about the substantive events of the domestic violence event but the Tribunal clarified with the Applicant that his memory of the event was that he “took (his wife) by the hand” firmly whereas the Police report is to the effect that he “slapped” her hand. As to the events of the breach of the AVO, the Applicant agreed in substance with what was in the Police report but stated that, due to his lack of English he had limited understanding of the terms of the order, that he thought it related only to not trying to approach his wife but that it did not relate to his attempts to see his daughter and that it was his desire to see this child that had occasioned the incident.
The Respondent pressed the Applicant on what contributions he had made to the Australian community and he replied that he had used his trade/professional skills as a plumber to assist his children’s school (at no charge) and that he otherwise attempted to help out people he knew who were in need of such tradesperson services.
Finally the Respondent took the Applicant to his statements that he now “understood” the law in Australia. The Respondent’s representative asked a series of questions about what the Applicant meant by this and while he struggled to give a formed and coherent answer, he attempted, as best he could, to indicate that he now had a better grasp of his responsibilities and obligations.
The Tribunal put a question to Mr. Abdallah about why he wanted to become an Australian citizen and I found his response thoughtful and persuasive, especially in relation to the ongoing welfare of his children and his commitment to living as a productive member of the Australian community.
Throughout quite a lengthy and detailed cross-examination, constrained in some respect by the need for interpretation, I formed a positive view of the Applicant as a witness and as a person.
SUBMISSIONS OF THE PARTIES
The Respondent put to the Tribunal that the offences for which the Applicant had been convicted were “very serious”, or “at the high range of seriousness”. The submission gave weight to the confusion about the exact quantum of the Applicant’s child support payments and his business activities.
By reference to previous written statements from the Applicant, it was put to the Tribunal that the Applicant failed to understand the seriousness of his offence; failed to appreciate the degree to which he had contributed to the various situations which had led him to be before the court; had not accepted personal responsibility for his behaviour; and was insufficiently remorseful.
It was conceded that there had been no subsequent offences of any kind, but that the degree of time elapsed (six years) was said to be insufficient for the Tribunal to be confident that the Applicant had reformed and would not offend again.
The Respondent stated that the Applicant and Ms Chouman had not attended any anger management courses, without establishing that there was any particular need for them;[48] nor had they sought “counselling”. The lack of a current formal Parenting Plan was commented upon.
[48] I presume this to be a reference to the comments of the Tribunal in Fahiye cited above at [32].
However I noted that the Respondent stated that there was a “need to look at the total picture concerning the Applicant.”
It was put the Tribunal on behalf of the Applicant that the events in question had taken place over six years ago and that the AVO (whatever timetable was attached to it) and the good behaviour bond had terminated some five years ago. It was further pointed out that the domestic violence event took place within six months of the Applicant’s arrival in Australia and that at the time he was not fully appreciative of the norms, standards and legal requirements in this country. He may well have failed to meet all of the legitimate expectations of the Australian community at that time.
Further, it was argued that at the time he was 29 years of age and since then he had “matured”, become aware of his legal and social responsibilities and had become more proficient in English. He has established his own business and sought to make a contribution to his community and to his family and friends.
The attention of the Tribunal was drawn to the difficulties faced by the Applicant with the breakdown of his relationship, being denied access to see his daughter and not being present at the time of the birth of his son to whom he had no access for a significant period of time.
By contrast, the situation now appears to be that there is a serious attempt by both the Applicant and Ms Chouman to re-establish a relationship based on better respect for each other and focused primarily on creating and maintaining a bond between the Applicant and his children. Apart from child maintenance payments (organised through the Child Support Agency) he makes further financial contributions to the support of the children, when he can, and pays the fees for their education at a private Islamic college.
Together with the Applicant’s presentation as a witness, the Tribunal is inclined to find these submissions persuasive.
CONSIDERATIONS
A significant amount of material, both written and oral given in evidence or submitted more recently to the Tribunal was not before the original decision maker but is relevant to my decision making. This point is reinforced by a comment made by Senior Member Taylor in Darwich v Minister for Immigration and Citizenship [2007] AATA 2016:
“Although past criminal conduct can be a potent indicator of character, the ultimate matter to be assessed is the applicant’s contemporary behaviour and reputation.”[49]
[49]Darwich and Minister for Immigration and Citizenship [2007] AATA 2016 at [40].
Furthermore, I am conscious of the fact that the time which has elapsed since any last offence should be taken into account in assessing character requirements. There is no clear guidance as to what might or might not be “sufficient” time for the Tribunal to give favourable consideration to any application. However a useful approach is stated by Deputy President McMahon in Wendy Susan Baker v Department of Immigration and Ethnic Affairs [1995] AATA 13:
“In my view these guidelines go well past the bounds of reason if applied literally. To prescribe that bad character will be forever assumed in the event of one conviction carrying a sentence of 12 months or more, no matter when that conviction took place is quite unreasonable. It is necessary in assessing character to look at all the relevant circumstances including the age of the convictions.”[51]
[51] Wendy Susan Baker v Department of Immigration and Ethnic Affairs [1995] AATA 13 at [43].
Again, I think that is a matter which will vary with the determined “seriousness” of the offence – the more serious the offence, the greater the time without further incident will be required to establish any sort of favourability for the applicant.[52] In this instance as I regard the criminal convictions at being at the lower end of the scale, I am inclined to think that a period of over six years (and almost five years since the expiry of the good behaviour bond) is sufficient.
[52] See comments of Deputy President Constance in Sharma v Minister for Immigration and
Border Protection [2015] AATA 608 at [58].
In assessing the situation as it was on the date of the hearing (19 April 2018) I find that, with the benefit of material put to me which was not before the original decision maker that the Applicant is a person of good character and that he thus satisfies each of the criteria set out in s 21(2) of the Act and as a result he is qualified for the grant of citizenship by conferral.
DECISION
The decision under review is set aside.
In accordance with the provisions of s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) the matter is remitted for reconsideration in accordance with the direction of the Tribunal that the Applicant satisfies all the requirements of s 21(2) of the Act.

I certify that the preceding 86 (eighty six) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

......................[SGD]..................................................
Associate
Dated: 14 May 2018

Date(s) of hearing: 19 April 2018

Solicitors for the Respondent: Angela Nanson

[21] Sharma and Minister for Immigration and Border Protection [2015] AATA 608 at [37].

[23] Australian Citizenship Instructions were superseded by the Department of Immigration and Border Protection Citizenship Policy in 2016.

[50] Similar to Citizenship Instructions at the time.

Date(s) of hearing:	19 April 2018
Solicitors for the Respondent:	Angela Nanson