Abedi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 2092
•5 July 2021
Abedi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2092 (5 July 2021)
Division:GENERAL DIVISION
File Number(s): 2020/3781
Re:Mehdi Abedi
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:5 July 2021
Place:Brisbane
The decision under review is set aside and the matter is remitted to the Respondent with the direction that the Applicant satisfies the good character requirement of s 21(2)(h) of the Australian Citizenship Act 2007.
...................................[SGD].............................
Deputy President J Sosso
Catchwords
CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – character test – domestic violence – breach of Protection Order – enduring moral qualities – decision set aside and remitted
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Minister for Home Affairs v G and Another (2019) 266 FCR 569
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Umer and Minister for Immigration and Border Protection [2018] AATA 1630
Rewharewha and Minister for Immigration and Border Protection [2018] AATA 2877
Odesho and Minister for Home Affairs [2019] AATA 3946Shastri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1928
Secondary Materials
Department of Home Affairs, Citizenship Policy
Department of Home Affairs, Citizenship Procedural InstructionsREASONS FOR DECISION
Deputy President J Sosso
5 July 2021
INTRODUCTION
Mr Mehdi Abedi (the Applicant), by application dated 15 June 2020, seeks review of a decision of 28 May 2020 by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) to refuse the grant of citizenship, by conferral, pursuant to s 24 of the Australian Citizenship Act 2007 (the Act) – Exhibit 1 T2 pp. 4 – 9, T12 pp. 126 – 135.
It is not disputed that the Applicant was born in Tehran, Iran, in May 1981 and married his ex-wife (who will be referred to as SA) in Shiraz, Iran in November 2003 – Exhibit 1 T4 pp. 11, 23. It is also not disputed that the Applicant and SA arrived in Australia on 12 August 2011 as unlawful non-citizens and that in August 2013 the child of the marriage, a son (referred to herein as RA), was born – Exhibit 2 paras 1 – 5.
On 24 April 2012 the Applicant was granted a Protection (Subclass 866) visa, which he still holds – Exhibit 2 para 4, Exhibit 3 para 2. This is a permanent residence visa – Exhibit 1 T12 p. 129.
The Applicant’s marriage deteriorated, and he separated from his wife in 2016. The Applicant testified that his wife was having an affair which led to the breakdown of the marriage – Transcript (Tr.) 17.5.2021 p. 7. Subsequently, in November 2018, SA applied for a divorce – Exhibit 1 T11 p. 109 para 4.
On 12 May 2016 the Applicant applied for Australian citizenship by conferral – Exhibit 1 T4 pp. 11 – 31.
It is not disputed that after the Applicant and SA separated in July 2016, the Applicant sent a number of threatening emails to SA. Without setting out each and every email, it is sufficient to make reference to a few as illustrative of the type of messages the Applicant was sending.
First, in an email of 28 September 2016 to SA, the Applicant made the following threats (the email was written in Persian and has been translated) – Exhibit 5 R1 pp. 45 – 46:
“You wretched and miserable! You think that with escaping and getting divorced the gate of a green garden will be opened for you? You are under a false illusion. I will push you into a dark garden. You will see that. You think that now you have come to Australia you can do anything that you want with me. No. I make you regret it like a dog. You will see that. If you do not return, I will do something that you will curse yourself one thousand times a day, you wanderer.”
Immediately after sending the above email, the Applicant sent a further message to his wife – Exhibit 4 R1 pp. 47 – 48:
“You are playing games with me, yes? I swear on my life that I will play games with you in such a way that you will eat shit a hundred times a day, you despicable liar.”
The following day, the Applicant sent an email to SA which was troubling and implied that the Applicant might kill her – Exhibit 4 R1 pp. 57 – 58:
“Forget about the idea of being able to separate me from [RA]. You wish! I never let that happen, or let you end the life. I swear to almighty God that I will not let this life end. This will happen only with me dying with you.”
In November 2016 SA applied for a Protection Order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) – Exhibit 5 R1 pp. 11 – 22.
SA outlined death threats that the Applicant made since their separation – Exhibit 5 R1 pp. 13 – 14:
“1) After separating from Mehdi, I went to stay with a friend. I managed to negotiate contact between Mehdi and [RA] as I didn’t want to deny [RA] a relationship with his father. [RA] spent time with Mehdi a few times a week. However Mehdi continued to threaten me and tell me I had to return to the relationship or else ‘bad things would happen’?
2) In approximately mid October 2016 during a child changeover at Mt Ommaney Shopping Centre Mehdi started asking me when I planned to come back to him. I said ‘I’m not’. Mehdi then placed his hands onto [RA’s] shoulders and said ‘I swear on his life if you don’t come back and live with me after Christmas all three of us will be dead. I will kill you, me and my son’. A chill went down my spine and I tried to behave calmly even though I felt terrified and shocked. He then called me a ‘bitch’ and walked away. After this incident I ceased contact and stopped letting Mehdi see [RA].
3) Since separation I have received a harassing amount of emails from Mehdi. This has caused me to feel intimidated. For example on 7 November 2016 I received 16 emails from Mehdi…
4) I have had to block him on social media due to receiving an abusive message from him…”
SA also claimed that during her marriage with the Applicant she had been physically assaulted at least once a month including being punched, slapped and kicked – Exhibit 5 R1 p. 15.
The Applicant admits that he had arguments with his SA when their relationship broke down, but claims he was never “aggressive, threatening or violent” – Exhibit 3 para 8.
On 21 December 2016 a Temporary Protection Order was made by the Holland Park Magistrates Court – Exhibit 5 R1 pp. 23 – 24. The Applicant was, inter alia, prohibited from contacting or attempting to contact SA, except written discussions relating to parenting arrangements.
The Temporary Protection Order was replaced on 1 February 2017 by a Protection Order, which was also made by the Holland Park Magistrates Court – Exhibit 5 R1 p. 8. This Order was made by consent and the Applicant was present at the Holland Park Magistrates Court when the Order was made.
Paragraph 2 of the Protection Order provided as follows:
“The Respondent is prohibited
- from remaining at;
- attempting or attempting to enter;
- approaching
the premises where the aggrieved
*lives;
*works;
*frequents, namely Little Darling Early Development Centre Mt Gravatt”.
On 8 March 2018 the Applicant pleaded guilty to a charge of contravening the 2017 Protection Order and was fined $380 – Exhibit 5 R1 p. 1. The charge was as follows:
“That between the 12th day of January 2018 and the 21st day of January 2018 at Wishart in the Holland Park Division of the Brisbane Magistrates Court District in the State of Queensland one Mehdi ABEDI being a respondent against whom a domestic violence order had been made contravened the order namely the Protection Order made on 1st of February 2017 in the Magistrates Court at Holland Park and Mehdi ABEDI was present in court when the order was made.”
In addition, the 2017 Protection Order was varied and a Protection Order Varied Order was issued – Exhibit 5 R1 p. 2.
The Queensland Police Service Court Brief provides the following account of the incidents that led to the Applicant being charged with a breach of the Protection Order – Exhibit 1 T11 p. 103:
“The respondent and defendant in this matter is Mehdi ABEDI…
The aggrieved and witness in this matter is [SA] the ex-partner of the defendant.
A Domestic Violence Protection Order containing six conditions was issued at the Holland Park Magistrates Court on the 1st of February 2017 for expiration of the 1st day of April 2019… Condition 1) states the defendant must be of good behaviour towards the aggrieved and condition 2) states the defendant is prohibited from approaching the premises where the aggrieved lives.
The aggrieved and defendant have a verbal agreement to exchange custody of their child…at Palmdale Shopping Centre, Upper Mt Gravatt at the approximate time of 9.30am on Saturdays. Custody handover of their child has occurred numerous times before at Palmdale Shopping Centre.
On Saturday the 13th of January 2018 the aggrieved was preparing to leave for the handover, from her address….and received a text message from the defendant that he was ready to receive his child. The aggrieved assumed the defendant was waiting at Palmdale Shopping Centre. As the aggrieved exited her front door she saw the defendant at the front of her house. The aggrieved at no time gave her address to the respondent or permission for him to come to the address.
On Saturday the 20th of January 2018 at 9.30am the aggrieved was once again preparing to leave for Palmdale Shopping Centre. When the aggrieved exited her front door… the defendant was again in the front yard.”
The summonsed Police records also contain information relating to further complaints made by SA about alleged breaches of the Protection Order by the Applicant.
For example, on 30 January 2020 SA made a complaint that the Applicant approached her when she was picking up their son from school and started kicking and punching her motor vehicle. In her panic to get away from the Applicant, SA stated that she drove through a red light.
However, the Police records disclose that the SA was subsequently uncooperative and did not sign the statement. Further, follow up inquiries with the school where the incident occurred were fruitless, with no staff member having observed the alleged incident and no other person coming forward as a witness. In addition, there was no CCTV in the area – Exhibit 5 R2 pp. 89 – 91.
On 24 September 2019 Registrar Kane of the Federal Circuit Court of Australia made the following consent orders – Exhibit 1 T11 pp. 120 -122:
(a)The Applicant and SA have equal shared parental responsibility for RA;
(b)RA to live with SA;
(c)RA to spend time with the Applicant as mutually agreed by SA and the Applicant, and in lieu of such an agreement as specified in the Order
(d)RA to spend time with his parents on special occasions, including Christmas, his birthday, Father’s Day weekend and Mother’s Day weekend;
(e)Arrangements concerning medical ailments afflicting the child, educational issues, attending school functions and communication with RA by text messages; and
(f)RA’s name to remain on the Airport Watch list.
Shortly after this Order was made SA moved to Melbourne with RA in breach of the order thereby depriving the Applicant of contact with his son – Tr. 17.5.2021 p. 9. The Tribunal was informed that the Applicant is taking legal proceedings to ensure that the Order of the Federal Circuit Court is given effect to.
ISSUE FOR DETERMINATION
The only issue for determination by the Tribunal is whether the Applicant is a person of good character for the purposes of s 21(2)(h) of the Act.
LEGAL OVERVIEW
Pursuant to s 21(1) a person may make an application to the Respondent to become an Australian citizen. Subsections 21(2) – (8) prescribe the various eligibility criteria. The only eligibility criteria the Applicant was found not to have met in the reviewable decision was s 21(2)(h), namely:
“is of good character at the time of the Minister’s decision on the application.”
The term “good character” is not defined in the Act. There have been a number of Federal Court decisions on the meaning of this term and the proper application of the good character test. Reference can be made to the following observations of Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) (1996) 68 FCR 422 at 431 – 432:
“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. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”
An assessment of good character, then, is an objective exercise governed by a review of the evidence presented as distinct from a popularity contest infected by emotion and only a partial understanding of a person’s character and behaviour.
Such an assessment is by no means an easy task and a decision-maker must reach the requisite state of satisfaction. The Tribunal made these observations in Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 (Prasad) at [7]:
“a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”
Although the Act does not define “good character”, guidance is provided to decision-makers by the Citizenship Policy (CP) and the Citizenship Procedural Instructions (CPI).
It needs to be noted that neither the CP or the CPI are made pursuant to a specific provision in the Act. In Minister for Home Affairs v G and Another (2019) 266 FCR 569 the Full Court (Murphy, Moshinsky and O’Callaghan JJ) made the following observations ([18]/574):
“There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.”
Their Honours also made the following observations ([58]/586):
“It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created…”
The Tribunal will generally apply the CP and CPI unless there is a cogent reason not to do so – Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
However, although the CP and CPI provide sound general guidance to a decision-maker, where a level of satisfaction is reached for the purposes of s 21 of the Act, then any further requirements or steps as set out in the CP and CPI need not be addressed – Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72.
Reference can also be made to the non-exhaustive list of characteristics expected of a person of good character set out in Cl. 4.4 of the CPI -- Exhibit 1 T14 p. 155. The relevant characteristics as set out in the CPI as relevant to this matter are:
“An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
• respect and abide by the law in Australia and other countries;
• be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth)
• not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
o intentionally providing false personal information (such as fraudulent work experience or qualification documents) or
o other material deception during visa and citizenship applications; …
o concealing criminal convictions;
o fraud against the Commonwealth such as tax fraud or Centrelink fraud
o giving false names and/or addresses to police…”
It is also important to set out the following guidance in CPl 4.4 which informs a decision-maker on how to sensibly apply these principles in particular circumstances – Exhibit 1 T14 p. 155:
“Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.”
HEARING
A Hearing was convened in Brisbane on 17 May 2021. The parties appeared remotely via Microsoft Teams.
The Applicant appeared, gave evidence and was cross-examined. No other witnesses were called to give evidence.
The Applicant was represented by Ms V Lenton, Principal Solicitor, Lenton Migration Law & Consultancy.
The Respondent was represented by Ms C Allen of Sparke Helmore Lawyers.
CONSIDERATION
Domestic violence is an extremely serious matter and, prima facie, a person who has exhibited a history of domestic violence towards their partner and other members of their family is not a person of good character for the purposes of the Act. The perpetration of domestic violence carries with it not only damage, physically and emotionally, to the aggrieved partner, but also to other members of the family. Children in such circumstances often suffer permanent psychological damage. Further, the damage caused by such violence has ripple effects into the wider community. It is corrosive of the public good and must be viewed critically and not downplayed or excused by issues (for example) of culture, religion or financial strain – see, for example, Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53] – [55] (Ahori) and Umer and Minister for Immigration and Border Protection [2018] AATA 1630 at [51] – [52].
The breach of a Domestic Violence Protection Order, in these circumstances, must be viewed as a serious matter. Nonetheless, a decision-maker is required to carefully evaluate and weigh all of the material presented. It is not the case that the breach of such an Order carries with it an inevitable finding that a person is not of good character. A decision-maker who automatically makes an adverse character finding because there is a breach of a Protection Order would be in error – Ahori at [55].
In this matter the Tribunal, when evaluating the enduring moral qualities of the Applicant, must first take into account his history of obeying the laws of both Iran, and, more critically, Australia.
The material before the Tribunal does not disclose any history of criminal convictions in either Iran or Australia. Apart from the contravention of a Domestic Violence Protection Order, the only transgressions of the Applicant are two traffic offences committed on 18 and 19 December 2013 involving exceeding the speed limit – Exhibit 5 R1 p. 3, Tr. 17.5.2021 p. 9.
The Tribunal therefore takes into account that the Applicant does not have a history of breaking the law and has, prima facie, been a law-abiding person in both Iran and Australia.
It would appear that the Applicant had been in continuous employment whilst he was residing in Iran. After leaving high school he was employed, inter alia, in the taxi and hospitality industries – Exhibit 1 T6 p. 56. At the time he made his citizenship application he was unemployed, and the Tribunal has not been presented with an employment history since he commenced residing in Australia – Exhibit 1 T4 p. 12. The Applicant stated in May 2020 that he was then unemployed but was looking for work, but his job prospects were impaired by an injury to his left leg which caused him pain and rendered him unable to stand for extended periods – Exhibit 1 T11 p. 111, Tr. 17.5.2021 p. 19.
The Applicant testified that he had fortnightly meetings with a disability job service who have been attempting, without success, to find suitable employment for him – Tr. 17.5.2021 p. 9.
It would appear that since his arrival in Australia the Applicant has become a Christian and has been attending various churches regularly – Exhibit 1 T11 p. 111.
The Tribunal was provided a letter dated 6 April 2020 from Mr Amin Makvandi, the Persian Pastor of the NetworX Church, Springwood – Exhibit 1 T11 p. 106. Pastor Makvandi stated that he had known the Applicant for four years and that he had first attended the NetworX Grace Persian Church in August 2016 and had been attending Sunday services and Wednesday Bible studies since approximately 2018. Pastor Makvandi made these observations:
“Since he was able to attend our church services he was an active member and helped in any way he could. Mehdi is a reliable man whom helps people in the community as he can.”
The Applicant testified that he left the NetworX Church, Springwood and is now attending another Church – Tr. 17.5.2021 p. 19.
Quite properly, the Respondent draws to the Tribunal’s attention the series of threatening emails that the Applicant sent to SA between September and November 2016 – Exhibit 5 R1 pp. 45 – 72.
The emails contain numerous threats of violence and contain insulting and crass comments about SA. The Tribunal accepts that the emails would have caused SA to be apprehensive and fear harm both for herself and for her son.
At the Hearing the Applicant, to his credit, took full responsibility for sending the emails and expressed remorse for his unacceptable behaviour.
The following exchange occurred between Ms Lenton and the Applicant – Tr. 17.5.2021 pp. 7 – 8:
“MS LENTON: In her application for the protection order, she provided evidence that you sent emails to her.
WITNESS: Yes.
MS LENTON: Did you send those emails to her?
WITNESS: Yes.
…
MS LENTON: Why did you send those emails?
INTERPRETER: So at the time I was not feeling well mentally. I was taking sleeping pills and I am really sorry for using those words.
MS LENTON: What did you hope to achieve by using those words?
INTERPRETER: I was not looking for some sort of achievement or response. I just wanted to reconcile, but we couldn’t.”
Further, when the Applicant was cross-examined by Ms Allen, he also accepted, without reservation, his culpability for sending the emails – Tr. p. 11 – 12:
“MS ALLEN: Thank you. You have accepted that you sent the emails that are in the tender bundle to your ex-wife; that’s correct?
WITNESS: Yes.
MS ALLEN: Thank you. And you would accept, wouldn’t you, that these emails could be seen as threatening?
WITNESS: Yes.
MS ALLEN: And you accept that they could cause the recipient apprehension or to fear harm?
WITNESS: Yes.
MS ALLEN: And you accept that they threaten physical violence.
WITNESS: Yes.”
The Tribunal agrees with Ms Lenton’s submission (Closing Submissions for the Applicant (CSA) para 5b) that the Applicant did not seek to minimise the nature of the emails, he appeared to understand the nature and gravity of his conduct in sending the emails, and he accepted that this constituted a form of domestic violence.
Although SA claimed that she was subjected to repeated acts of physical violence by the Applicant, the Tribunal has not been presented with any evidence of either the perpetration of such violence or of any convictions for such violence.
The only serious conviction of the Applicant relates to his breach of the Protection Order by attending at SA’s residence. The Applicant agreed under cross-examination that he did attend at SA’s residence in breach of the Protection Order and that he had breached the terms of the Protection Order on at least two other occasions – Tr. 15.5.2021 pp. 13 – 15.
However, the Applicant claimed that the breaches were due to a misunderstanding and that on at least one of those occasions he was requested by his ex-wife to attend at the premises. Further, the Applicant claimed that he did not intend harm or offence by his conduct – CSA para 5c.
Ms Lenton submits (CSA para 5d) that since the imposition of the Domestic Violence Order there have been no criminal charges laid against the Applicant, nor convictions recorded relating to physical harm, verbal abuse or threats. Further, Ms Lenton submits (CSA para 5e) that since February 2017, there is no evidence that the Applicant has been involved in any conduct that could be characterised as being abusive or threatening against SA. This is despite the fact that the Applicant and SA have been involved in a contentious custody dispute over their child and the child’s removal to Melbourne by SA – CSA para 5f.
The Respondent, however, contends (Respondent’s Closing Submissions (RCS) para 6) that the evidence suggests that the Applicant has been engaged in threatening conduct since February 2017. In support of this proposition, reference is made to the report of the Applicant approaching SA’s motor vehicle with consequent punching and kicking of the vehicle. The following submission was made by the Respondent – RCS para 6:
“While the applicant denies approaching his ex-wife’s vehicle, he admits that he attended upon the school. He claims that his ex-wife messaged him using Facebook Messenger confirming that he could collect the child from school, but changed her mind without informing him. However, the applicant has not sought to put before the Tribunal a copy of the purported message. Further, the Solicitors Office Report dated 3 February 2020 indicates that the applicant approached his ex-wife at their child’s swim school. While the protection order was no longer in effect at this time, the applicant’s presence caused his ex-wife to enter the school ‘distraught’ and ask for the police to be called…The applicant has not denied that this incident occurred, but, rather, seeks to rely on the fact that his ex-wife did not make a formal police report.”
The summonsed material presented to the Tribunal does not support this version of events. As previously noted, the reporting Police Officer made specific follow up inquiries to the school where the alleged incident occurred and no staff or other person observed the alleged incident – Exhibit 5 R2 p. 90. The further follow up inquires of Queensland Police received this result – Exhibit 5 R2 p. 91:
“Witness has provided a statement regarding a breach of domestic violence order however the statement is incomplete missing signature and other sup reports detail that the aggrieved has not been cooperative with initial investigating officer. Statement is still able to be used however recent contact has been made with the Resp and his legal team at the Salvation Army. Resp Legal representative has informed police that the respondent does not wish to partake in an EROI…Nil other evidence present other than the aggrieveds (sic) statement…”
In short there is no evidence concerning this alleged incident other than SA’s initial complaint to Police. No other persons witnessed the alleged incident, the Applicant denied it and SA subsequently refused to sign her statement and was uncooperative with Police. In these circumstances the Tribunal places little or no weight on this alleged incident.
A perusal of the Police Reports also suggests that SA made other allegations against the Applicant which, on investigation, were of doubtful veracity.
On 20 May 2017 SA complained to Police that she observed the Applicant approximately 40 metres from her unit complex walking in her direction. SA claimed that the Applicant was walking back and forth on the opposite side of the road but no threats were made. SA also claimed that the Applicant was wearing a black shirt and blue jeans. The Police Report contains the following information – Exhibit 5 R2 p. 80:
“Patrols conducted of the area, however nil persons located that matched the description provided by the aggrieved. Nil independent witnesses to corroborate the aggrieved’s version. Aggrieved did not appear to be fearful, and her current boyfriend was inside the unit and did not witness the respondent walking past at the time.”
A subsequent Police Report dealt with the subsequent investigations – Exhibit 5 R2 p. 81:
“Police spoke with MEHDI in relation to DV breach. MEHDI stated he was not walking along the street… on the night of mention. He further stated they broke up a while ago, and she is causing drama for him.
There is nil independent witnesses to corroborate [SA’s] version.
Low lit area, and also the aggrieved was standing a fair distance from the respondent which minimises the chances of a positive identification.
Very high chances the incident did not occur.”
The Tribunal’s attention was also drawn to recent citizenship decisions of Senior Member Puplick which involve domestic violence issues.
The first decision, Rewharewha and Minister for Immigration and Border Protection [2018] AATA 2877, concerned an applicant who had resided in Australia since 1988. He was married to a naturalised Australian citizen and was a skilled supervisor in the area of major sheet metal installations for major oil and gas projects. Apart from 26 Australian and two New Zealand traffic offences, Mr Rewharewha also had incidents of domestic violence.
The first incident occurred in New Zealand in 1987 involving Mr Rewharewha and his then fiancée. No sentence was imposed by the Papakura District Court.
The second incident occurred in 1999 when Mr Rewharewha came home drunk and harassed his wife. No violence was involved and the Police Report noted “No offence”. Senior Member Puplick observed (at [42]):
“The incident took place after New Year’s Eve when presumably Mr Rewharewha had been drinking, then slept in the car and in the early hours of the morning came home in an offensive condition and apparently harassed and annoyed his wife. It does not seem to the Tribunal that his sort of incident reaches the level of seriousness, however unpleasant and uncalled for, that generally attends upon instances of domestic violence.”
The third incident occurred in November 2000 and again involved Mr Rewharewha arguing with his wife whilst drunk. On this occasion Mr Rewharewha picked up a knife and waved it around without any apparent direct threat and pushed one of his step-children backwards. The applicant’s wife did not wish to press charges, did not want any AVO’s taken out and said she was not in fear for her safety.
In 2010 Mr Rewharewha was charged with slapping his 17 year old daughter at least twice on the side of her head. The daughter was suffering from problems with drug abuse and was estranged from her parents. The incident arose because the daughter came home demanding money, and when this was refused became abusive. The applicant responded by slapping her. Subsequently the daughter received treatment for her drug-related problems and the family reconciled.
Finally, in May 2016 the applicant and his wife got into an argument when she came home to find him intoxicated. At one stage the applicant grabbed his wife by her hair. The applicant’s step-daughter contacted the Police who, on arrival, were told by his wife that she would not supply a statement and was not cooperative with the Police. No charges were laid against Mr Rewharewha.
Senior Member Puplick made these observations:
“67. In Mr Rewharewha’s case although there are several police reports of being called to attend at his home due to domestic violence reports and possible incidents, the only matter from which charges arose were those in relation to problems with his daughter. His wife has never pressed charges; he has never been convicted of any assault upon her; he has never been charged with any breach of an AVO…
70. Nevertheless Mr Rewharewha did not deny that various incidents had occurred nor that he had been violent towards his wife. He ascribed all these events to the impact of alcohol and explained that he had grown up in an environment in which heavy drinking was the norm and that for most of his working life he had been on construction sites where the all-male culture of workers separated from their families normalised both excessive drinking and overt displays of aggression and violence…
74. Careful consideration of the evidence, such as it is, surrounding all of the domestic violence incidents leads the Tribunal, along the lines suggested in Ahori, to be inclined not to accept that their nature is such as to establish them as constitution an automatic disqualification for Mr Rewharewha in terms of establishing matters of good character, although the fact that such incidents took place is of no credit to him.”
The Tribunal concluded (at [92(b)] that the domestic violence matters, viewed holistically and in their proper context, would not lead to a finding that Mr Rewharewha was not of good character.
The next matter is Odesho and Minister for Home Affairs [2019] AATA 3946. Mr Odesho was convicted on 12 September 2013 and sentenced to a good behaviour bond for 9 months. He was charged in relation to an incident on 20 August 2013 when he had an argument with his girlfriend resulting in him detaining her, grabbing her by hair and slapping her on the face.
This was the only instance of Mr Odesho being charged with a domestic violence offence. He had reconciled with his girlfriend, and by the time of the Tribunal Hearing had been living with her for two years. In addition, his girlfriend appeared before the Tribunal and gave evidence in support of his claimed good character. The Tribunal found that the applicant and his girlfriend were witnesses of credibility.
Mr Odesho also had traffic offences.
The Tribunal found:
(a)that there was no pattern of aggressive behaviour by Mr Odesho – [63];
(b)it had been six years since the domestic violence offence was committed – [64];
(c)over the previous six years Mr Odesho was free from any further involvement with the criminal justice system – [67];
(d)Mr Odesho took responsibility for his offending behaviour and acknowledged the seriousness and inappropriateness of his conduct – [68];
(e)Mr Odesho expressed remorse and contrition and made efforts to rehabilitate himself – [69];
(f)the domestic violence incident was a spur-of-the-moment matter and was not pre-meditated – [80];
(g)the domestic violence incident was an isolated case and there were no further incidents after that time – [80]
The Tribunal concluded by finding that Mr Odesho met the good character requirements of s 21(2)(h).
The final determination is Shastri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1928 (Shastri).
Mr Shastri, a married man, was having an affair with Ms Patel, a married woman. The respective spouse of Mr Shastri and Ms Patel were aware of the affair. In addition, Ms Patel was having a relationship with a third male, an ex-boyfriend. Mr Shastri, when becoming aware of Ms Patel’s relationship with her ex-boyfriend, had an argument with her in a public place and hit her. This was witnessed by a third person who contacted the Police. Ms Patel was not cooperative with the Police.
Mr Shastri was found guilty on 22 January 2016 of the offence of “Common Assault (Domestic Violence)”. No conviction was recorded and he entered a good behaviour bond for 18 months.
The Tribunal noted (at [56]) that Mr Shastri had no convictions prior to this incident and none since.
Mr Shastri had undertaken charity work in association with his Temple and sought professional counselling after the incident – [56].
The Tribunal accepted the Applicant’s evidence about his sense of shame, embarrassment and remorse and accepted that he understood the gravity of domestic violence offences – [57].
The Tribunal concluded that Mr Shastri met the good character requirements of s 21(2)(h).
The above three determinations, whilst not binding on the Tribunal, nonetheless are helpful as they clearly illustrate that a person who has transgressed by the commission of an act or acts of domestic violence may, nonetheless, redeem themselves and satisfy a decision-maker that they are now a person of good character.
In reaching a conclusion on whether the Applicant meets the good character test in s 21, the Tribunal has had regard to the following matters:
(a)the Applicant has, with the exception of two relatively minor traffic offences and the domestic violence breach, an unblemished record of lawful conduct in both Iran and Australia;
(b)there is only one instance of the Applicant breaching a domestic violence Protection Order, and in that instance no conviction was recorded and he was fined $380;
(c)at the Hearing the Applicant freely admitted to sending threatening emails and other unacceptable conduct;
(d)there is no independent evidence that the Applicant has engaged in violent conduct either against his ex-wife or his son;
(e)it was clear to the Tribunal that the Applicant was remorseful for his unacceptable conduct;
(f)the Tribunal formed a favourable view about the credibility of the Applicant;
(g)while SA has made other allegations against the Applicant, there is no independent evidence before the Tribunal that supports her allegations, and, as noted, on at least one occasion the Police have discounted her version of events;
(h)the Applicant was suffering from depressive episodes when he engaged in his unacceptable conduct; and
(i)it would appear that the Applicant has genuinely converted to Christianity, has been a regular church attendee and has engaged in charitable community activities.
This matter has some similarities with Shastri insofar as in both instances the applicants have been men who have no history of criminal behaviour and have acted out of character because of the disintegration of their domestic relationships. In both instances the applicants have acknowledged their unacceptable behaviour and in both instances there is no history of any further transgressions.
The Tribunal formed a positive view of the Applicant. He clearly has acted in an unacceptable manner, but this has to be viewed in the context of the breakdown of his marriage and his desperate attempts to get his son and wife to return home. The evidence suggests that at the time he engaged in his unacceptable behaviour he was suffering from mental health issues.
In conclusion, the Tribunal has formed the view that the sending of the threatening emails and the breach of the Protection Order were matters that were out of character for the Applicant. The Applicant has been a law-abiding man for his entire life, and, when weighing up whether a person is of good character, it is critical to consider the entirety of a person’s life, and not just one or two instances of inappropriate behaviour that have their genesis in random actions, as distinct from a pattern of premeditated bad behaviour. Further, it is especially important in matters involving domestic violence, to ascertain if there is a pattern of violence against a spouse and children of the relationship. As previously noted, there is no independent evidence that the Applicant has been violent towards his ex-wife or his son.
A decision-maker, when making an assessment of whether an applicant is of good character, requires, as the Tribunal in Prasad at [7] observed, “a consideration of an aggregate of qualities.”
In this matter, the Applicant’s overall history of law-abiding behaviour, his expressed remorse and contrition, the lack of any independent evidence of physical violence towards his ex-wife and his involvement in charitable works all go in his favour, and, in the circumstances, outweigh his unacceptable behaviour and breach of the Protection Order.
DECISION
The decision under review is set aside and the matter is remitted to the Respondent with the direction that the Applicant satisfies the good character requirement of s 21(2)(h) of the Australian Citizenship Act 2007.
I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
...........................[SGD].......................
Associate
Dated: 5 July 2021
Date of hearing: 17 May 2021 Date final submissions received: 31 May 2021 Representative for the Applicant: Ms Victoria Lenton Representative for the Respondent: Ms Cody Allen
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