Bansal and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 4355

Bansal and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 4355 (3 November 2023)

Division:GENERAL DIVISION

File Number(s):      2023/2531

Re:Nishant BANSAL

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:3 November 2023

Date of written reasons:        15 January 2024

Place:Sydney

The correct and preferable decision is that the reviewable decision is set aside, and remitted to the Respondent with the direction that the Applicant meets the character requirements of section 21(2)(h) of the Citizenship Act 2007 (Cth)

...............................[SGD].................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

CITIZENSHIP – whether the good character requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) is satisfied – relevant law and policy considered – applicant’s background and criminal history considered – character references considered – decision under review set aside and remitted

LEGISLATION

Citizenship Act 2007 (Cth) section 21

CASES

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

15 January 2024

BACKGROUND:

1. Turning first to the background, by way of application dated 18 April 2023, the Applicant seeks a review of the decision of the delegate of the Respondent dated 30 March 2023 to refuse to grant the Applicant Australian citizenship by conferral. 

2. The decision not to grant the Applicant Australian citizenship was made under section 21(2)(h) of the Citizenship Act 2007, hereafter referred to as the Act, on the basis that the delegate was not satisfied that the Applicant was a person of good character, pursuant to section 21(2)(h) of the Act at the time of making their decision. 

3. I note that the Respondent’s statement of facts, issues and contentions contains a helpful summary of the background to the application. 

4. The Applicant was born in India in August 1990 and arrived in Australia as the holder of a Student (Subclass 572) visa.

5. The Applicant’s visa was cancelled in August 2011, as a result, the Applicant did not hold a valid visa and became an unlawful non-citizen. 

6. The Applicant was convicted in the Penrith Local Court of assault occasioning actual bodily harm, domestic violence and was sentenced to a section 9 bond for 12 months. 

7. On 13 December 2016, the Applicant was granted a Bridging C (subclass) WC 030 visa. 

8. On 5 September 2017, the Applicant’s bridging visa, granted on 13 December 2016, expired and the Applicant was granted a new Bridging C (subclass) WC 030 visa. 

9. On 28 September 2017, the Applicant was convicted in the Penrith Local Court of common assault (domestic violence) and received a sentence of seven months imprisonment commencing on 28 September 2017, and concluding on 27 April 2018, suspended on entering a section 12 bond for seven months, where the Applicant was is ordered to comply strictly with the AVO, counselling, education development, drug and alcohol rehabilitation, and report to the community corrections office within seven days. 

10. The Applicant was convicted in the Penrith Local Court of stalk intimidate and fear physical harm (domestic violence) and sentenced to a section 9 bond for 18 months, where the Applicant is ordered to comply strictly again with AVO counselling, educational development, drug rehabilitation, and report to the Penrith community corrections officer within seven days. 

11. The Applicant is also convicted in Penrith Local Court of destroy or damage property and received a fine of $600 and ordered to pay $750 by way of compensation.  On 16 April 2021, the Applicant’s bridging visa granted on 5 September 2017 expired, and the Applicant is granted permanent residence visa through a subclass 801 partner visa. 

12. On 19 April 2022, the Applicant lodged an application for Australian citizenship by conferral.  On 28 February 2023, the Applicant provided the Applicant with an opportunity to respond to adverse information, and on 30 March 2023, a delegate of the Minister refused the Applicant’s application for citizenship on the basis that the delegate was not satisfied that the Applicant was of good character pursuant to section 21(2)(h) of the Act.

13. On 18 April 2023, the Applicant applied to the Tribunal for a review of the delegate’s decision. 

    ISSUE:

14. The only issue for the Tribunal to determine in this matter is whether the Tribunal can be satisfied that the Applicant is of good character for the purposes of section 21(2)(h) of the Act. 

    LAW & POLICY:

15. The relevant legislation and policy was summarised in the Respondent’s statement of Facts, Issues and Contentions and I adopt that summary as part of this decision.

    EVIDENCE:

16. If we turn now to the evidence, firstly, the evidence of the Applicant. 

    Evidence of the Applicant:

17. The Applicant first gave evidence in relation to some photographs and text messages which were put in evidence before the Tribunal.

18. He said that those photographs which were of text messages and some domestic scenes were put before the Tribunal in order to demonstrate in particular his ex-wife’s problems with drinking and drugs. 

19. The Applicant gave evidence that at the time of the first offence, he was suffering from depression, that he had been using alcohol, and he also gave evidence in relation to the second series of offences that he was very stressed at the time, and also that he had some concerns for the welfare of his son. 

20. When questioned about his convictions, the Applicant said that he had pled guilty to both offences, although he did dispute some of the facts.

21. He said that in relation to the second incident in relation to which he was charged, that he was really trying to look after his son and to make sure his son was properly put to bed. 

22. The Applicant accepted his convictions and he said that he agreed to everything the police said. He said that he was frightened at the time.

23. At the time of his first appearance before the Local Court, he said he did not have legal representation, but he had representation on the second occasion. He understood the nature of his convictions.

24. The Applicant said that following his convictions, he had tried very hard to be a better person.  He understood his guilty plea. 

25. When asked about his attempts at rehabilitation, the Applicant said that he had been seeing a psychiatrist, but that he had decided that he wanted to be a better person and that he made significant efforts to rehabilitate himself and to become a better person, but he did not go to any courses relating to domestic violence or any other aspect of his criminal behaviour. 

26. He did say that he had called Relationships Australia, but he could not remember what had happened in relation to those calls. The Applicant said that he was now in a good space and that he had come a long way with his rehabilitation. The Applicant said that people told him that they felt that he had changed. 

27. When questioned about staying in Australia without a valid visa for at least four years, the Applicant said he had stopped learning because he could not afford to pay tuition fees. He did not pursue any other visa and he did not approach the Department in relation to other options.  When questioned directly, the Applicant accepted that it was not of good character to remain in Australia for a period of four years without a visa. 

28. The Applicant provided a number of character references to the Tribunal, including one from Ms Ram, and one from his son’s school, and from the local football club. The Applicant said that he had asked people with whom he had a relationship, including the football club where he coaches football, to give an assessment of his character at the time, they were not necessarily aware of his convictions. 

29. The Applicant gave evidence that he had the care and responsibility of his son N, that he had had care of N since 2017 when he received a call from the Department of Family and Community Services indicating that if he did not take care of N, he would be placed in state care.  This was due to N’s mother’s drug abuse and her inability to take care of the child. 

30. The Applicant gave evidence that N needs a lot of help with homework and generally around the house. N has two serious eye conditions, one of which may require surgery and another which makes it more difficult for him to see normally. 

31. N’s mother has made no attempt to contact the child and the evidence indicated that there was no contact with the mother unless that was initiated by the Applicant, with recent contact being in relation to the Applicant seeking to have orders for the full-time care of N. 

    Evidence of Ms Ram:

32. Turning to the evidence of Ms Ram, Ms Ram gave evidence that she had met the Applicant a couple of years ago at a public gathering.

33. Ms Ram said she sees the Applicant every second or third day and speaks to him every day.  She knows of the Applicant’s convictions and said that the Applicant told her about his convictions at about the time they met, she was also aware of the fact that the Applicant had stayed in Australia for a long period of time without a visa. 

34. Ms Ram gave evidence that N was a very happy child and that he was very well looked after.  She said that in her opinion, the Applicant was doing a very good job of looking after the child who goes to school very regularly. Ms Ram said that she had a relationship with N and was aware of all of his circumstances. 

    DISCUSSION:

35. Turning now to a discussion of the relevant issues. There is only one issue before the Tribunal, and that is whether the Tribunal can be positively satisfied that the Applicant is of good character for the purposes of section 21(2)(h) of the Citizenship Act 2007. 

36. As I explained to the Applicant at the hearing, citizenship is not to be taken lightly, it confers significant benefits and is in fact a great privilege bestowed on behalf of the people of Australia on a non-citizen. This explains why that the Tribunal must be positively satisfied that an Applicant is of good character.  In other words, the Tribunal must reach an affirmative belief that the Applicant is a person of good character. 

37. Good character is not defined in the legislation, but it has been considered by the courts on numerous occasions, including by the Federal Court in the case of BOY19 v the Minister for Immigration and Border Protection.  In that case, O’Bryan J opined as follows:

    The following principles can be distilled from the authorities about the meaning of the expression ‘good character’ in section 21(2) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame, or repute of that person in the community, although the latter may provide evidence of the former.  The expression is not concerned with the physical or intellectual attributes or abilities of the person.  Second, the expression does not have a fixed or precise content.  Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory license, or whether a decision is in the public interest, the expression imports a discretionary value judgement to be made by reference to undefined factual matters confined only to the subject matters, scope, and purpose of the statutory provisions. Third, and as a corollary of the second point, the expression requires a judgement as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship. 

38. In considering the question of good character, the Tribunal is guided by part 4 of the Citizenship Policy 15, which states that the Tribunal should consider factors such as the Applicant’s family life, stable home environment, being responsibly employed and paying taxes, together with any community work that is being undertaken. 

39. The Tribunal must make a decision as part of an overall assessment, which includes taking into account an Applicant’s offending, but also includes an assessment of the positive aspects of the Applicant’s life, the information must be weighed in order for the Tribunal to make an assessment as to whether it is able to reach an affirmative believe that the Applicant is of good character. 

40. The Respondent argued strongly before the Tribunal that it could not reach an affirmative belief that the Applicant was of good character because of the nature of his offending, that the Applicant appeared to dispute some aspects of his convictions and that the Applicant had not engaged actively in rehabilitation. 

41. The Respondent also drew attention to the fact that the Applicant had lived in Australia for a number of years without a valid visa. When questioned directly about this the Applicant accepted that this was wrong, although I note it took a direct question from the Tribunal in order for the Applicant to make this acknowledgment. 

42. The Applicant pled guilty to domestic violence offences against two different women, the offences were serious. Whilst I accept that the Applicant may have had mental health issues and problems with alcohol at the time of his offending, and also that at least at the time of the second offence, he was very stressed, it does not excuse his behaviour.

43. The Applicant has not sought counselling in relation to his offending, he has not sought any drug and alcohol counselling or anger management, but rather said that he had come to understand his behaviour and that he had determined to become a better person. 

44. In assessing whether the Tribunal can be positively satisfied that the Applicant is of good character, I am of the view that his offending, although very serious, is not of the most serious kind, but all family violence offences must be taken very seriously, particularly when such offences involve violence and are repeated. 

45. It was of concern that the Applicant did not appear to have a lot of empathy, at least for his second victim, and disputed at least in some degree the police facts sheet. I note that the Applicant was not legally represented at the Local Court on the first occasion, and I accept that he may not have had the money for legal representation. 

46. I also accept that the Applicant has no record of offending, other than in relation to the four convictions before the Tribunal, and I do give some weight to the various character references before the Tribunal. Although I note that the writers of those references were not aware of the Applicant’s offending. 

47. It is a very important factor that the Applicant took responsibility for the care of his son N, when it was likely that the child would otherwise be placed in the care of the state because of the inability of the child’s mother to take care of him. The Applicant has looked after N since 2017.  The evidence was quite clear, and there was no contrary evidence that he was a good father and taking good care of his son.

48. N appeared to be making good progress at school and to be very well cared for. The Applicant’s evidence was supported by school reports and by the evidence of Ms Ram. 

49. N has a serious eye condition which may require future surgery together with another eye condition which affects the child’s ability to see and requires him to move his head in different directions in order to be able to see properly. The evidence would indicate that N’s father has taken appropriate steps to get medical evidence in relation to how N’s condition should be best managed and treated. 

50. N’s mother has taken no interest in the child at all, including recognising special occasions in the child’s life, such as birthdays and Christmas. The Applicant intends to apply for orders in relation to the care of N and has attempted to contact the mother in order for her to sign the appropriate papers. To date, it appears that despite the Applicant’s best efforts, she has declined to do so.

51. The evidence also demonstrates that the Applicant has engaged with his local community, including football coaching. I accept the letters from his referees which refer to him and his character and involvements at the present time. However, apart from Ms Ram, the referees were not aware of the Applicant’s offending. 

52. In considering all off the evidence, I give great weight to the Applicant taking responsibility for N and also to his attempts to involve himself in the local community. Accordingly, I find that the Tribunal can be positively satisfied that the Applicant is of good character for the purposes of the Act, although, that was not an easy conclusion to reach. The Applicant has accepted his convictions, although he did dispute some of the evidence against him, and he has not reoffended.  I accept that he has made positive changes to his life. 

53. In particular he has clearly made changes necessary for him to take responsibility for the care and welfare of N.  It is generally accepted as being extremely important to a child’s welfare that the child is in the care of one or other of the child’s parents. By all accounts N is well cared for, and I found the Applicant to be honest and sincere in his desire to be a good contributor to the Australian community. 

    DECISION:

54. Accordingly, having considered and weighed all of the evidence, the correct and preferable decision is to set aside the decision under review and remit the matter to the Respondent for reconsideration with a direction that the Applicant meets the character requirements of section 21(2)(h) of the Act and I make orders accordingly. 

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

...............................[SGD].........................................

Associate

Dated: 15 January 2024

Date(s) of hearing:	3 November 2023
Applicant:	In person
Solicitors for the Respondent:	Lauren Hargrave