Bhatia and Minister for Immigration and Border Protection (Migration)
[2017] AATA 927
•23 June 2017
Bhatia and Minister for Immigration and Border Protection (Migration) [2017] AATA 927 (23 June 2017)
Division:GENERAL DIVISION
File Number(s): 2016/4220
Re:Vikram Bhatia
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:23 June 2017
Place:Canberra
The decision under review is affirmed.
...........................[sgd].............................................
Deputy President Gary Humphries
Catchwords
MIGRATION AND CITIZENSHIP – application for Australian citizenship denied on character grounds – domestic violence – criminal convictions – convictions of applicant deemed ‘serious’ under the Australian Citizenship Instructions – evidence of applicant before Tribunal inconsistent with finding of Court – inconsistency weighs against applicant – attempt to downplay seriousness of criminal offences in evidence to Tribunal weighs against applicant demonstrating enduring moral qualities – that denial of application for citizenship will create ‘significant hardship’ to applicant irrelevant in assessment of good character – decision affirmed.
Legislation
Australian Citizenship Act 2007
Cases
Divane and Minister for Immigration and Border Protection [2016] AATA 728
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385
Sharma and Minister for Immigration and Border Protection [2015] AATA 608
Zheng and Minister for Immigration and Citizenship [2011] AATA 304Secondary Materials
Citizenship Policy Document, June 2016
Australian Citizenship Instructions
REASONS FOR DECISION
Deputy President Gary Humphries
23 June 2017
BACKGROUND
Mr Vikram Bhatia came to Australia from India in 2006. In 2009 he returned to India to marry Ramandeep Kaur, whom he had known since childhood. There was some opposition to the marriage from family members, however, as Mr Bhatia and Ms Kaur belonged to different castes and religions. He returned to Tamworth in northern New South Wales where he was employed, and in 2011 his wife joined him there. Her command of English on arrival in Australia was rudimentary.
On 29 June 2012 an incident occurred at their home in Tamworth. The following day, Ms Kaur went to the Tamworth police station to complain that she had been assaulted by her husband. Mr Bhatia later attended the police station and was arrested. The police applied for and were granted an urgent apprehended violence order (AVO) on her behalf. Mr Bhatia was charged with domestic common assault and released on strict bail conditions, and served with the AVO. Ms Kaur did not return to their home that night.
Mr Bhatia repeatedly made phone calls and sent texts to Ms Kaur that day and the following day, in contravention of the terms of the AVO. The following day he identified the house where Ms Kaur was staying, and he went to the front door, where he was turned away by the owner of the house. Later that day, Ms Kaur returned to the Tamworth police station and reported Mr Bhatia’s conduct. Mr Bhatia was arrested and spent two days in custody.
On 11 October 2012 Mr Bhatia was convicted in the Tamworth Local Court of:
a)common assault (DV);
b)stalk/intimidate intend fear of physical/mental harm;
c)contravene prohibition/restriction in AVO.
He was fined and required to enter into a good behaviour bond.
On 28 August 2014 Mr Bhatia was granted a subclass VB887 permanent visa. On 31 January 2016 he applied for Australian citizenship. However, the delegate of the Minister for Immigration and Border Protection (the Minister) refused that application on 23 July 2016, on the basis that the delegate was not satisfied that Mr Bhatia was of good character. Mr Bhatia applied to the Tribunal for review of the delegate’s decision on 8 August 2016.
THE APPLICABLE LEGISLATION AND POLICY
Section 24(1A) of the Australian Citizenship Act 2007 (the Act) provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Section 21(2) of the Act provides that:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
...
(h) is of good character at the time of the Minister's decision on the application.
The Act does not define good character. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, Lee J noted at [94] that:
Unless the terms of the Act and regulations require some of the 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. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion. (citation omitted)
The Minister has produced two policy documents to guide those making decisions under the Act. The Tribunal, standing in the shoes of the Minister in this review, is entitled to consider and take into account those policies in reaching its decision: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). Those policies are the Citizenship Policy (the Policy) and the Australian Citizenship Instructions.
Chapter 11 of the Policy provides guidance in relation to making decisions on the good character of an applicant under the Act. Page 109 of the Policy provides that:
‘Good character' refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and other commitments made through the pledge should they be approved for citizenship…
The Policy further provides that the expression enduring moral qualities encompasses the following concepts:
·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.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.
The Policy further provides that an applicant of good character would, among other things:
·respect and abide by the law in Australia and other countries
…
·not be violent…and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
In weighing up the character decision, the Policy offers this guidance:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of 'good character' requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia's community standards
·does the applicant share Australia's democratic beliefs and respects its rights and liberties.
The Policy, citing Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7], indicates that an assessment of whether an applicant is of good character requires the consideration of an aggregate of qualities. It says:
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.
The Tribunal was told that in 2016 the Policy superseded the Australian Citizenship Instructions (ACIs), but that the ACIs remain operational policy. On that basis the Tribunal considers the ACIs offer guidance in interpreting the requirements of the Act. They set out a number of factors to take into account in assessing character.
Under the heading Offences the ACIs provide:
·"Has the applicant committed any offences and if so, did they admit that in their citizenship application? …
·If the applicant has committed an offence, was it serious or minor. …
·…. Serious Offences include, but are not limited to:
ocrimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)…
oharassment or stalking …
·Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or the disabled, or others who trusted the applicant? …
·How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour?
The ACIs also list mitigating factors that decision-makers should consider in determining whether an applicant may be of good character notwithstanding their offences or conduct. Those factors include:
·…the length of time between the date of offence … and application for citizenship;
·Has the applicant accepted responsibility and shown remorse for their conduct?
·How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?
·It is important to see how the client behaves when they are free from the obligations of such a sentence or bond. A reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus justify a conclusion that the person is now of good character and is upholding Australian laws;
·Has the applicant rehabilitated themselves?
·Were there any extenuating circumstances relating to the offence?
·Is there evidence of length of employment, stable family life and/or community involvement?"
THE ISSUES BEFORE THE TRIBUNAL
The issue before the Tribunal is relatively straightforward: is Mr Bhatia entitled to Australian citizenship on the basis that he satisfied s 21(2)(h) of the Act, that is, was he of good character on 23 July 2016, the date of the delegate’s decision? In considering that question, the events of 29 June - 1 July 2012 assume critical importance.
THE EVIDENCE
Both Mr Bhatia and Ms Kaur gave evidence to the Tribunal, in each case partly in Hindi through an interpreter and partly in English. Summonsed police and court records were also tendered.
Mr Bhatia’s evidence
Mr Bhatia told the Tribunal he was born in 1980. He gave evidence about the concerns of his and Ms Kaur’s families with respect to their marriage, and ongoing friction between the families.
When his wife came to Australia in 2011 he was able to find her a job, but there were financial difficulties, leading to some problems for us. One night his wife had a migraine, which he interpolated they later discovered was a different condition, relating to a brain haemorrhage. On this night Mr Bhatia was speaking to her father in India by telephone but Ms Kaur had a headache. She lay down on the bed beside him while he was on the phone. She could not speak to her father because of her headache and Mr Bhatia just got angry because it happened in front of …her father. He said we didn’t have a scuffle… we just had argument.
His evidence was that, after she had gone to work the next day, she sent him a text message to say that she was at the police station. He went to the police station where he was arrested. He did some paperwork and then was allowed to go home. His wife was not at home and he got a bit worried. He tried to call her. He rang both the families to tell them she was not there, and they told him to go and find her.
The following morning he went to Manila Road, where he understood his wife might be. He went to a house on that road and spoke to a lady and asked her to tell his wife that she should ring home because her family were worried about her. He was later arrested and spent two days in custody. He said that he later met his wife, and that they sat together and sorted everything, and then we started our life again. After that everything was okay, she was happy. Later, a baby girl was born to them.
He also gave evidence about medical problems his wife later experienced with her eyes, brain and leg. He said he worked two jobs, one in a factory and another in the evening at Woolworths. He said he had changed a lot, and had tried to fix my anger. He said I feel very remorseful about what happened in mid-2012. He wanted to volunteer with the Salvation Army but his heavy work commitments prevented that.
Mr Bhatia also gave evidence of two traffic convictions, an offence of driving through a red light signal in Sydney in 2010 and a speeding offence on the New England Highway in April 2016, where he drove at 130kph in a 100kph zone.
More information about the incidents in mid-2012 was elicited during cross-examination. In relation to the assault, Mr Bhatia denied that he had struck the back of his wife’s head with his fist, but said rather that I tried to pick up the phone but my elbow hit her. His wife then left and went into the other bedroom, where she covered herself in a quilt. He said that she fell off the bed when he pulled the quilt off her. He denied that he kicked her while she was on the bed. It was put to him that he then kicked his wife several more times; he denied this.
He then admitted that he had grabbed his wife by the hair and dragged her out into the hallway. It was put to him that he said to her If you live in my house you live by my rules. He denied saying that. It was also put to him that he said to her If you don’t do what I say, I’ll kill you. He denied that also, saying that the same Hindi word means kill or hit.
He admitted having gone to the police station later and denied having assaulted his wife. When it was put to him that he had told the police his wife had mental health issues, he denied that, saying that he told them his wife had a brain problem, affecting her mood.
He conceded that the AVO taken out against him had been explained to him on 30 June 2012. He said he understood that this meant he was not to contact or approach his wife. He admitted nonetheless repeatedly contacting his wife by texts and phone calls, saying he was really worried and that he was under pressure from the families to make contact with her. He admitted sending 29 text messages to her, contrary to the terms of the AVO. He also said that when he went to the house on Manila Road and knocked on the door, he was unaware that his wife was there.
It was put to him that his wife reported to the police that he had been violent towards her since she came to Australia in January 2011. He denied this, saying that his wife had been misunderstood when she spoke to the police.
When asked why his wife’s statements to the police characterised what occurred at their house so differently, he said that she had told him because I’m …new to this here and I could not just explain them properly and officers were taking a statement from me they made a small thing into bigger things. He said his wife later wanted to withdraw the statement, but the police told him what was done is done now.
Ms Kaur’s evidence
Ms Kaur told the Tribunal she was born in 1986.
She was asked by her representative to describe what had happened in 2012. On the night of the incident, she had a headache. She lay down, and her husband started having a conversation over the telephone. Her husband told her to have a talk over the phone to her father, but she refused. As she tried to get up, his arm hit her head. She went to the other room and covered herself with a blanket. Her husband was still very upset. She said that the incident lasted for 10 minutes. Afterwards we slept together.
The next day she went to work and told her boss what had happened, and her boss had told her she should report what happened to the police. She said that English was her third language. Her representative then asked her about the police record in which she is supposed to have said her husband was violent towards her before this incident in 2012. She said that at the time her English was no good, that she did not understand at the time that her comments could lead to charges being laid, and that at times during the interview she did not understand what was being said to her. Her husband was not violent in the past. She wanted them to understand that she and her husband wanted to stay together.
She denied that she was scared that night, but said that she was worried and, to cover her health, so as not to get into trouble, she had gone to her employer’s house rather than go home. While there, Mr Bhatia had sent her a video on her phone. She said that her employer explained that her husband was not allowed to send her messages, and this was why she went to the police station the next day, to tell them that he had sent messages.
She was asked to explain why she had told the police Mr Bhatia had said If you live in my house you live by my rules. She said that what he had said was that since they were living here on their own, what they had to do they had to do together. She also denied that he had said he would kill her, saying that instead he had said he would slap her. She had used the word kill to the police because her English was not very good at that time.
When asked what changes she had detected in her husband since the incident in 2012, she said she found him a very responsible person, both before and after the incidents.
Under cross examination, she agreed she had been assaulted by Mr Bhatia on 29 June 2012. She said he had hit her, but when it was put to her that he had kicked her, she said I was wrapped up in the blanket and he started to pull the blanket [off] me and I just fell from the bed myself. She conceded that she had later shown the police her bruises, but said that these had been caused by her falling off the bed by myself. She said Vikram didn’t bruise me.
She denied that Mr Bhatia had been violent towards her before 29 June 2012. When asked why she had told the police this, she said Vikram was trying to… make me understand how we should live in this society. She said she took this wrongly… I don’t know why I said that. She denied telling police that she had been too scared to come forward to report her husband’s violence. She said she did not remember telling the police this. She then said she didn’t know what she said to the police; I don’t remember.
The police records
Two facts sheets prepared by NSW police were before the Tribunal. The fact sheet of 30 June 2012, based on Ms Kaur’s interview at Tamworth police station, recorded the following inter alia:
The accused has come to Australia to live for a period of 2 years before being joined by the victim in January 2011. The victim reports that over this period the accused has been violent towards her on an ongoing basis, mainly as a result of disagreements between the victim and the accused parents who live in India.
The victim was always too afraid to take any action about the abuse as she had no friends in Tamworth and feared that if she reported the matter she may be deported. The accused has also threatened that should she leave him or report the matter, her family in India would be disgraced and he would have them killed.
…
The victim has put away some groceries before going to the bedroom to lie down, as she was tiered from working all day and had a bad headache. When she entered the bedroom the accused was lying on the bed, still on the phone to his parents. The victim approached the bed and signalled for the accused to shuffle over so she could lie down. The accused has moved over and the victim has lay face down on the bed, so as to block out the light and help with her headache.
It is then that she has felt a hard impact to the back of her head which she believes to have been the accused fist. The victim has turned over to face the accused and he has thrust the phone towards her indicating for her to talk to his parents. She has declined due to her headache and has retired to another bedroom in the house to go to sleep.
…
About 10 minutes after she lay down she has head [sic] someone come into the room and has then felt someone kick her hard in her lower back area. This caused the victim an immense amount of pain due to a previous injury to her lower back. The victim has removed the blanket to see the accused standing over her.
The accused has begun arguing with the victim about her lack of respect for him parents [sic]. Whilst doing this he is kicked [sic] her several more times using his right leg to strike the side of her right thigh. The accused has then grabbed the victim by the hair and dragged her out into the hallway/living area of the unit.
The accused has then made comments similar to “if you live in my house you live by my rules!” He has released the victim [sic] hair before proceeding to grab hold of her right arm so tightly it was painful to the victim. The has [sic] accused has released the victim and she has sat down on the lounge. The accused has gone to the bedroom before returning a short time later stating “If you don’t do what I say, I’ll kill you.”
…
The victim and a number of staff members attended Tamworth Police Station and reported the matter and a statement was obtained. During the statement the accused has continued to try and contact the victim, so at the request of police the victim has requested that the accused attend Tamworth Police Station.
The fact sheet records swelling and bruising to her right arm, and swelling to her left leg as a result of the incident.
A second fact sheet, dated 1 July 2012, was based on an interview with Mr Bhatia. It read, in part:
About 9:05pm the 30 [sic] June 2012, the accused proceeded to repeatedly text and call the victim, Ramandeep KAUR. The accused persistently sent text messages and calls to the victim. The accused persistently requested her whereabouts and for the relationship to get back together.
…
The following morning, the 1st [of] July 2012, the accused actively searched for the victim. The accused patrolled Manilla Road in an effort to locate the house where the victim was residing with a friend.
At about 8am that morning the accused located that house at […] Manilla Road […] after recognising the vehicle parked out the front which belonged to the victim’s friend. The victim was inside. The accused parked out the front of the house and proceeded to text the victim to meet her. The victim did not reply. The accused shortly left the location.
About 10am that morning the accused returned to […] Manilla Road […] and knocked on the front door. There he spoke with the resident and friend of the victim. He requested to see the victim. His request was refused. He left a short time later. There was no violence or argument during the meeting.
These fact sheets were handed up to the Tamworth Local Court on 11 October 2012 with Mr Bhatia’s consent, and formed the factual basis on which the court recorded a conviction against him. He was legally represented at the hearing.
Ms Davidson’s evidence
Ms Carol Leone Davidson is Ms Kaur’s employer, and was at the time of the incident in 2012. Her statement dated 26 October 2016 was tendered. She said that Ms Kaur came to work the morning after the incident very distraught and upset, and she accompanied her to the police station. She was present when Ms Kaur gave her statement to the police. Some elements of the statement were put to her, and she was asked if she recalls those things being said by Ms Kaur to the police. She responded that she did not have a distinct recollection. She felt it was her duty afterwards to offer to take her back to her, Ms Davidson’s, home.
She told the Tribunal that Mr Bhatia and Ms Kaur were doing very, very well since the incident, which she said was an accident, a mistake, which shouldn’t have happened; he [Mr Bhatia] understands that.
Dr Varughese’s evidence
Dr Elizabeth Varughese, who gave evidence by telephone, became Ms Kaur’s doctor after the incident in 2015. She said that Ms Kaur always spoke about him [Mr Bhatia] highly. She said that Mr Bhatia was always very supportive of his wife when she saw them.
CONSIDERATION
The question facing the Tribunal is whether Mr Bhatia qualifies for citizenship on the basis that he is of good character, in the sense that term is used in the Act. Mr Bhatia has been convicted of what the ACIs describe as – and what the community would consider to be – serious offences, namely domestic violence offences. In Sharma and Minister for Immigration and Border Protection [2015] AATA 608 at [37] the Tribunal described domestic violence as:
…conduct that is fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.
Mr Bhatia has placed before the Tribunal factors which he contended should be considered mitigating factors in assessing the extent to which his convictions count against his good character. He is truly remorseful for his actions in 2012 and has rehabilitated himself, the Tribunal was told. A number of matters relating to his conduct since July 2012 were before the Tribunal.
Most conspicuously, however, Mr Bhatia placed before the Tribunal a version of the events of 29 June-1 July 2012 which was substantially different to the one contained in the fact sheets handed up by the police to the court when he was convicted in October 2012. The following sets out only some of those differences (the police version in bold, Mr Bhatia and Ms Kaur’s version unbolded):
Mr Bhatia had been violent towards Ms Kaur since her arrival in Australia
Mr Bhatia had never been violent towards Ms Kaur in that time
Ms Kaur believes Mr Bhatia struck her head with his fist
Ms Kaur believes Mr Bhatia struck her head with his elbow, accidentally
Mr Bhatia kicked Ms Kaur a number of times
Mr Bhatia at no point kicked Ms Kaur
Mr Bhatia told Ms Kaur if you live in my house you live by my rules
Mr Bhatia said words to the effect since we are living here on own own, what we have to do we have to do together
Mr Bhatia told Ms Kaur if you don’t do what I say, I’ll kill you
Mr Bhatia told Ms Kaur if you don’t do what I say, I’ll hit (or slap) you
The incident resulted in swelling and bruising to Ms Kaur’s right arm / left leg
The swelling and bruising was caused by Ms Kaur falling off the bed by myself
Quite evidently, the version of events put before the Tribunal by Mr Bhatia and Ms Kaur suggests much less culpability on Mr Bhatia’s part than the version put to the court. The implication of this was clearly that the incident in 2012 was less serious than the court had been led to believe, and that the convictions should therefore figure less significantly in weighing whether Mr Bhatia is of good character.
The principle however is well established that, as a general rule, the Tribunal cannot go behind the fact of a criminal conviction and question the basis upon which it was reached; rather it must accept the conviction and the essential findings of fact on which it was based. In Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385 the Federal Court considered a contested prior conviction of the applicant in the context of the power to deport in s 200 of the Act. It determined (at [41]-[43]):
41 First, it seems to me to be clear beyond argument that the administrative decision maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based...
42 Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence...
43 Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based …, policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences …; and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals...
As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted... [References omitted]
The same principles were employed by the Tribunal in Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [121].
The Tribunal does not consider in the present matter that the heavy onus to which the Federal Court referred in Ali has been discharged. There is nothing before the Tribunal, other than the evidence of Mr Bhatia and Ms Kaur themselves, to gainsay the material facts on which the Tamworth Local Court reached its decision. Less weight might be accorded to their late, alternative version given that the Local Court made its decision based on an agreed statement of facts handed up to it, to which Mr Bhatia consented. The heavy onus of challenging the facts before the Local Court not having been discharged, the Tribunal must accept that they accurately describe the facts supporting Mr Bhatia’s domestic violence convictions.
Even if the Tribunal were able to assess what occurred in mid-2012 and determine for itself what occurred on the balance of probabilities, the result would be no different. The Tribunal considers the history painted in the hearing by Mr Bhatia and Ms Kaur to be highly implausible. For example, the following can be observed:
·the revised history depends on the police having comprehensively misinterpreted what was being told to them by each of Mr Bhatia and Ms Kaur in separate interviews;
·Mr Bhatia told the Tribunal he was unaware his wife was at the house on Manila Road when he knocked on the door, but had told the police he went to the house and asked the resident to let him see his wife;
·Ms Kaur denied that she was scared the night of the assault, yet the following morning she was very distraught and upset, according to Ms Davidson.
Given that the Tribunal finds (or is compelled to find) that Mr Bhatia’s most recent depiction of the events surrounding his conviction is at least partially untrue, what implication does that have with respect to the decision before it? In Divane and Minister for Immigration and Border Protection [2016] AATA 728 the Tribunal considered Mr Divane’s repudiation of the circumstances leading to a conviction by a court in New Zealand. It observed:
38. Finally, MrDivane not only sought to conceal his substantial criminal history upon his arrival in Australia, but in his oral evidence, he sought to downplay and deny the circumstances of his past offending. Particularly notable is his assertion that the Court’s finding that his threat to kill, although serious, was somehow untrue. He has also sought to disparage police accounts of events pertaining to his offending.
39. This evidence is concerning because it again indicates that Mr Divaneeither does not take responsibility for, or otherwise seeks to avoid the consequences of his previous offending. Particularly in a situation where the Tribunal cannot go behind the original conviction – I have to accept findings of fact upon which convictions are based – this behaviour illustrates in Mr Divanea still flawed ability to distinguish right from wrong. This again increases the likelihood of reoffending. (reference omitted)
It appears strongly to the Tribunal that similar observations must apply in the present case. Mr Bhatia’s rather incredible, and patently self-serving, attempts to dilute the circumstances of his offending in 2012 suggest not remorse but rather a willingness to act dishonestly in pursuit of a grant of Australian citizenship. The ACIs list among the mitigating factors which may be considered where a person’s conduct suggests they are not of good character the following:
·Has the applicant accepted responsibility and shown remorse for their conduct?
It is very difficult to reconcile Mr Bhatia’s reinterpretation of his offending with either the acceptance of responsibility or the showing of remorse for his conduct. The ACIs further provide:
·Were there any extenuating circumstances relating to the offence?
In light of the decisions in Ali and Zheng, it is to be doubted that the reference to extenuating circumstances here can be taken as permission for an applicant to repudiate the essential facts of a prior conviction.
The offences proven against Mr Bhatia in 2012 would, in themselves, suggest that he did not then possess the enduring moral qualities which the Policy postulates are to be found in a person of good character. The attempt in 2017 to downplay the gravity of those offences can only reinforce the impression that he still does not possess them. Submissions were made to the Tribunal during the hearing as to the period of time that needs to elapse since the offences were committed before it can be safely concluded that Mr Bhatia now exhibits those enduring moral qualities. However, in circumstances where it seems clear Mr Bhatia does not yet take responsibility for the actions on which those offences were based, it is doubtful that the clock has even begun to run.
The Tribunal acknowledges some matters which point to Mr Bhatia attempting to address whatever moral deficit might be said to arise from his crimes of domestic violence. He deserves credit for undertaking an anger management course and for wanting to volunteer for the Salvation Army. The character reference from Dr Varughese was heartfelt and positive, and the Tribunal takes into account other favourable character references which were before it. Both Mr Bhatia and Ms Kaur testified that their relationship was now much better than in 2012. Mr Bhatia had bought her a car, and they were building a home and raising a daughter together. The Tribunal accepts their evidence of an improved relationship.
Mr Bhatia’s embracing of Australia's community standards since 2012 has not been without setbacks, however. His speeding offence a mere 12 months before the hearing suggests that he continues to struggle to obey Australian laws. Above all, his false denials of the circumstances of his offending in 2012 makes it very difficult for the Tribunal to consider that he has rehabilitated himself by understanding and taking responsibility for what he did.
Other matters were raised during the hearing. The Tribunal was informed that Mr Bhatia’s convictions inhibited him getting a better job. More particularly, he wanted to become a police officer. The Tribunal was also told that his failure to obtain citizenship afforded hardship to his family in that:
a)they were less likely to obtain a place in a particular local school for their daughter if he was not a citizen;
b)he ran the risk when his visa expired in 2019 that he would not be granted another visa with re-entry rights and would be unable to travel;
c)travelling on an Indian passport was less advantageous than travelling on an Australian passport.
It was further suggested that, if Mr Bhatia is unable to obtain citizenship and is not granted a further visa with re-entry rights, the outcome may be separation from his family, especially his young daughter. Why he might not be able to obtain such a visa as a permanent resident of Australia was not explained, and this outcome must be considered too improbable to have a bearing on the Tribunal’s decision.
However, even if these considerations could be regarded as significant hardship, the provisions of s 21 do not permit the Tribunal to take into account such matters. The only relevant criterion on which citizenship may be granted is Mr Bhatia’s good character.
The Tribunal affirms the reviewable decision of 23 July 2016 to refuse Mr Bhatia Australian citizenship.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
..........................[sgd]..............................................
Associate
Dated: 23 June 2017
Date(s) of hearing: 24 April 2017 Solicitors for the Applicant: ZK Lawyers Solicitors for the Respondent: Clayton Utz
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