C1 and Minister for Immigration and Border Protection
[2014] AATA 526
[2014] AATA 526
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/6304
Re
C1
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 31 July 2014 Place Sydney The decision under review is affirmed.
......................[SGD]..................................................
Senior Member A K Britton
CATCHWORDS
CITIZENSHIP — Application for Australian citizenship — Whether the Applicant is of “good character” — Applicant’s criminal history — weight to be given to character references — Decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – s 21(2)(h)
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Instructions – 1 July 2013
REASONS FOR DECISION
Senior Member A K Britton
31 July 2014
C1 applies to the Administrative Appeals Tribunal for review of the decision made by the Minister for Immigration and Border Protection to refuse his application for Australian citizenship. The stated reason for that decision was the finding that C1 did not meet one of the statutory criteria for Australian citizenship, namely to be of good character. Central to that decision was C1’s conviction for the offence of assault committed four years ago. The victim of that assault was C1’s (then) 12-year-old son.
This is C1’s third application for Australian citizenship. His first application was refused on the ground that he did not satisfy the residence requirement for citizenship. His second application was refused on the ground that he was not of good character. C1 unsuccessfully challenged that decision in the AAT. (C1 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 519) (the first AAT decision).
C1 contends that he now recognises that disciplining his son in the manner he did contravened Australian law. He claims that he has reformed and not hit any of his children since arrested for assault in March 2010. The Minister contends that C1 has not demonstrated remorse and his claim that he now acknowledges that his conduct towards his son was unacceptable is disingenuous. Further the Minister submits that insufficient time has elapsed since the offence was committed, pointing out that the good behaviour bond imposed by the sentencing court expired less than two years ago.
STATUTORY FRAMEWORK
A person is eligible to become an Australian citizen if, among other things the Minister, or the Tribunal acting as substitute decision-maker, “is satisfied that the [citizenship applicant] is of good character at the time of the Minister’s decision on the application” (s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act)).
The term “good character” is not defined in the Act. The Tribunal must therefore be guided by the ordinary meaning of the words as interpreted by the courts.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 the Full Federal Court considered the meaning of the expression “good character” for the purposes of the migration legislation. Davies J (with whose reasons R D Nicholson J agreed) said (at p 425):
... the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
In the same decision, Lee J said (at pp 431-432):
Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. 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 [citations omitted].
Australian Citizenship Instructions
The Australian Citizenship Instructions (the Instructions) were issued by the Minister to “provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”. In exercising its review function the Tribunal must take the Instructions into account unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634).
The Instructions (at 10.5.2) list a number of factors to be taken into account in assessing whether a citizenship applicant is of good character. These include:
Whether the citizenship applicant has committed any offences and if so, whether they disclosed that in their citizenship application
The number and frequency of offences
Whether the offence is “serious” or “minor”
Whether there were any victims of the offence
Whether the offence was pre-meditated
The length of any sentence imposed
Any ongoing obligations in relation to the sentence received, such as a good behaviour bond
The Instructions go on to list “mitigating factors” that must also be taken into account. These include:
Mitigating factors – could the applicant be of good character anyway
…
·What is the length of time between the date of offence (if known) and application for Australian citizenship, or between conviction and application? …
·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? …
·Has the applicant rehabilitated themselves? Have they made a conscious effort to obey and uphold Australian laws? ...
·What was the applicant’s age at the time the offence was committed? If the applicant committed the offence at a young age, the commission of the offence may be given less weight depending on the nature of the crime and any subsequent offences. It may be possible that the person has matured and gained greater respect for upholding the law than as a youth, and as such, any criminal offences from that period of their life are less indicative of their current character.
·Were there any extenuating circumstances relating to the offence? …
·Is there evidence of length of employment, stable family life and/or community involvement? These may be indicators of good character. Applicants may wish to provide references from independent people, like employers, attesting to the applicant’s character and whether they support the application for citizenship. …
BACKGROUND
The following background information is taken from the first AAT decision :
10. The Applicant was born in Taiwan in 1959, left school at about age 15 and worked as a truck driver and in security. While in military service, about 1980, he was diagnosed with schizophrenia and placed in a ‘psychiatry institute’ for some time. He later wrote two books on the causes of mental illness and defects in the government treatment of hospital patients. He married but had great difficulty in finding employment sufficient to support himself and his family. This has been said to result from the stigma of both mental illness and his anti-government publishing. He felt abandoned by his family and discriminated against. He and his wife contemplated suicide. He and his family arrived in Australia in 2002 and in 2008 he was granted a Subclass 202 (Global Special Humanitarian) visa enabling permanent residence. His partner and their seven children all hold the same class of visa. Four of the children were born in Australia. All family members have resided continuously in Australia since arrival. The Applicant was granted a disability support pension and he has never been employed in Australia. His wife has an intellectual disability.
11. While in Taiwan, the Applicant came to believe that if he were divorced the family would receive more social security benefits than if he remained married. He and his wife then obtained a divorce even though they have continued living together and had several more children. They have not re-married. The Applicant’s belief was, predictably, quite wrong and the family barely managed.
12. After arrival in Australia, the Applicant was unable to work and was assisted by Red Cross. In 2010 the family of two adults and seven children lived in cramped circumstances with only three bedrooms. On 28 March 2010, the Applicant accused his 12 year old son of frightening the baby and of disobedience. He punched the boy several times. An older sister called DOCS and the police attended. The Applicant maintained his right to discipline his son in the way he chose. He was charged with common assault of his son. He pleaded not guilty and contested the charge but on 6 September 2010 he was convicted in the Local Court and placed on a bond to be of good behaviour for two years. The magistrate also made an apprehended domestic violence order for three years concerning each of the seven children.
13. The evidence in the Local Court from two of the children was that the Applicant frequently became enraged by any misconduct, shouted at the children and hit them. The eldest daughter said that she woke on that morning to the Applicant shouting angrily for 30 minutes to an hour “like heaps of times before” and later she saw him punch her brother. He had hit that brother frequently in the past. She said that after she called DOCS and the police on that day “he don’t hit me anymore but he continued hitting [the victim] … after that”.
14. The victim said that his father had accused him of frightening the baby and hit him a number of times and then later that day when the Applicant told him to take his bowl from the living room to the kitchen, he had pushed his father to get to the bowl and his father had then punched him three times, once in the face. The Applicant had hit him before. When the police arrived the Applicant was at first polite but “the shouting and aggressive nature [began] very quickly”, especially when the police placed him under arrest.
15. On 26 May 2011 the District Court dismissed the Applicant’s appeal against conviction and sentence. On each occasion the Applicant was not legally represented although he had a Mandarin interpreter.
Attitude towards the assault
In his reasons for the first AAT decision, Senior Member Letcher observed at [32] that since the assault C1 has consistently maintained that he was “not committing a crime, merely disciplining his child, referring to the following evidence:
32. At the time of the assault, at the Local Court, in his email of 5 February 2013 to the Minister’s delegate and at the Tribunal, the Applicant continued to maintain that he was not committing a crime, merely disciplining his child:
I was teaching my son a lesson, my son called the police … generally when he was not following my instructions I would give him a hit … usually I only hit him on his body or on his arm … he fought back … so I hit him on his face … I did not pay much attention, I lost control. I, I, I lost control of my emotions [police interview Q89 to Q111 excerpts]
33. In his evidence in the Local Court in 2010 the Applicant said:
Q: … And when you hit your son what were you trying to do by hitting your son?
A: Because he didn’t listen to me.
Q: So were you trying to teach him a lesson?
A: Yes. Yes he should be punished. That happens too many times, he didn’t listen to me.
And:
… If he had not fought back to me I wouldn’t have hit him.
And in submissions to the magistrate:
… I am from Taiwan. In our culture to discipline your children is the right thing. I was not aware that to disciplining my child in, or even to hit my child, is a kind of action, I mean, is a kind of activity that breached the law …
34. In his email dated 5 February 2013 to the Minister’s delegate:
My conviction is not a crime. It is for disciplining my kid.
35. And in his Tribunal evidence, when asked about the rejection of his appeal to the District Court against his conviction:
Judge said hitting was not a crime and I walked away … the judge said if he frightened child for a long time … judge said not a crime.
36. In fact the District Court judge dismissed the appeal and confirmed the conviction.
In these proceedings C1 said that shortly before the assault he discovered that his son had been “scaring” his baby brother by startling the baby and placing him in “high positions”. In oral evidence he admitted he had been wrong to hit his son across the face but stated what his son had done was also wrong, “a crime”. He said his son had learnt a lesson and never again scared or annoyed the baby. C1 stated he still believes as he wrote in his email to the Department in February 2013 that his “Conviction is not a crime. It is for disciplining my kid” but that he now recognises that the manner he went about disciplining his son, namely hitting him in the face, was wrong.
Medical evidence
Tendered in these proceedings was a copy of a report prepared in March 2010 by a Justice Health clinical nurse consultant at the request of the Local Court. The nurse wrote that C1 told her that 25 years ago he had been diagnosed as suffering from schizophrenia in Taiwan. She wrote that it was unclear from the history given what, if any, psychiatric treatment C1 had received since arriving in Australia. The nurse recorded being told by C1 that the victim of the assault was not his son, was “naughty” and different to his other children. She concluded that C1 lacked insight, his judgement was grossly impaired, he appeared to have an untreated psychotic illness with delusions and severe disturbance of thought form. In her opinion C1 satisfied the definition of a “mentally ill person” under the Mental Health Act 2007 (NSW) and required hospitalisation.
In a report prepared in 2006 apparently for the purpose of C1’s application for permanent residency, psychologist, Ms Soo See Yeo, wrote that while in Australia C1 had been prescribed but not taken anti-psychotic medication for the treatment of his schizophrenia.
In these proceedings C1 claimed that he was not taking any medication and had not seen a doctor for a number of years. He denied suffering a mental illness.
Has C1 reoffended?
In a statement prepared for these proceedings, C1 said that he has not hit any of his children since the subject offence. He claims he is a good father, loves his children and is their primary carer. He also claims that his children perform well at school and his eldest children are now studying at university.
The applicant’s two eldest children each prepared statements for the purpose of these proceedings. The eldest daughter claims that since the assault “there has not been any major violence occurring at home” and that C1 has “not physically abused us in any way”. She wrote that her father “has been treating us fairly and well and home has become a much more peaceful and safe place to be”. The eldest son wrote that while he no longer lives with his family, his siblings keep him informed about the “home situation” and have told him C1 is no longer abusive. The Minister requested that both children be available to give oral evidence. C1 advised they were unavailable because of study commitments.
C1’s wife apparently suffers from a mild intellectual disability. She testified in these proceedings that there has never been any physical conflict between her and C1. She testified that on only one occasion has she witnessed her husband hit a child and has not seen him do so since March 2010. In proceedings before the Local Court she testified that she did not witness the subject assault.
Tendered in these proceedings was a copy of entries made about C1 in the Computerised Operational Policing System (COPS) — a database used by NSW police to record information about incidents that require police action. They record two incidents which occurred after the subject assault. The first incident related to allegations made by C1’s eldest daughter, the second to allegations made by the manager of the family day care facility attended by C1’s children.
In September 2010 C1’s then 15-year-old daughter reported to police that two weeks earlier she had been hit by her father and she feels “scared and nervous” around him. She told police that when she questioned her father about whether he would be paying for a school excursion, he came up and stood very close to her and, when in attempting to get away she touched his arm, in retaliation he hit her on the forearm with an open hand, causing her to feel mild pain. When interviewed by police C1 gave a broadly similar version of events and claimed he pushed his daughter away a couple of times. No charges were laid. The police apparently placed some significance on the daughter’s delay in reporting the incident. In these proceedings C1 denied hitting his eldest daughter on her face or head and said he could not remember if, as alleged, he hit her on the arm.
The second incident occurred in August 2011 and related to C1’s discovery that his two-year-old-son had fractured his left shoulder. C1 believed the injury occurred while his son was attending family day care. The manager of the family day care centre reported to police that C1 came to her office demanding to be provided with details of the centre’s insurer and became aggressive. The police attended the centre and brokered an agreement whereby C1 undertook not to approach the centre and the manager agreed to provide him with the details of their insurer.
Character references
C1 tendered in these proceedings character references prepared by family friends, Mrs Hongwei Gao and Mr Siu Chun Chan.
Mr Chan has lived with C1 and his family since January 2013. He met C1 at the Villawood detention centre. According to Mr Chan in the ten years he has known C1 he has never seen him hit his children or lose his temper. According to Mr Chan he “overheard” that C1 had been accused of assaulting his son. Mr Chan said C1 told him he did not hit the child and he believed that claim.
Mrs Hongwei met C1 at a family day care attended by their respective children in 2006 and they have become good friends. In a letter of support prepared in December 2012 she wrote that C1 is a loving father and has a strong sense of responsibility to his family. She wrote he is “always gentle, never loses his temper and is friendly to everyone”. In oral evidence she stated that she was unaware of C1’s conviction for assault and does not believe he hit his son.
Submissions made by C1
In support of his application C1 gave the Tribunal two sets of written submissions. The first is largely devoted to an unattributed extract from an article carried on the website of the organisation, Children Surviving Sexual Abuse ( I understand C1 to make the following submissions. First, the evidence of his children performing reasonably well academically is inconsistent with the Minister’s contention that they are subjected to ongoing physical abuse in the home. Second, the Minister has applied a “double standard” by emphasising those statements prepared by his children which are “against me” and not those which “say good about me”.
In further submissions C1 stated that the Minister failed to give proper weight to the passage of time since the offences were committed, the evidence of stable family life and his role in caring for his children. In support he urges me to follow the approach taken by DP Handley “a very experienced judge … [who] supports me”. [In January 2013 DP Handley remitted to the Minister the delegate’s decision to refuse C1’s application for citizenship for reconsideration under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth). The reason for the delegate’s decision was that C1 was then subject to a bond and, by the operation of s 26(4)(g), his application for citizenship could not be granted. When C1’s application for review by the AAT was made the bond had expired and on that basis DP Handley decided to remit the decision for reconsideration.]
IS C1 NOW A PERSON OF “GOOD CHARACTER”?
The issue I must decide is whether on the available material C1 is now of good character.
It is plain from the evidence given by C1 in these proceedings that he only reluctantly concedes that his actions in the subject offence constitute a criminal offence. He points out that his formative years were spent in a country where physical discipline of children was considered acceptable and his actions should be seen in that light. While not put as bluntly as this, he appears to accept that while his actions in punching his son in the face may have crossed the line, the balance of the conduct for which he was convicted was appropriate in the circumstances given his son’s conduct in “scaring” the baby.
Holding the opinion that it is permissible for parents to use physical punishment to discipline their children of itself, is not evidence of bad character. The controversy generated by the recent comments made by the co-chair of the national curriculum review, Mr Kevin Donnelly, about the use of corporal punishment to discipline children reveals the range of opinions within Australian society about the issue. C1’s attitude towards the physical punishment of children is only relevant to the extent it sheds light on his claim of being genuinely remorseful and whether the conduct for which he was convicted was a one-off occurrence.
C1’s denial of any further offending sits uncomfortably with the evidence of his daughter’s complaint made to police six months after the subject offence was committed. While the police took the view that that conduct did not warrant further action it raises doubts about the reliability of C1’s claim not to have used physical punishment to discipline his children since the assault in March 2010. It also raises doubts about the reliability of the claim made by the (same) daughter in her statement tendered in these proceedings that since the subject offence her father has not abused her or her siblings.
Taken together with the claim made by C1 in these proceedings of not hitting his children prior to the subject offence, which was contradicted not only by the evidence given by two of his children to the Local Court but also the statement he gave to police on his arrest in 2010, raises doubts about the veracity of C1’s evidence.
C1’s application is not assisted by the evidence given by his wife in these proceedings. Her testimony of never having seen C1 lose his temper or hit their children together with the evidence she gave to the Local Court of having no knowledge of her husband’s 2010 assault on their son, is contrary to the weight of evidence. The evidence given by Mrs Hongwei and Mr Chan of having no knowledge of the subject assault raises doubts about their claims of being well placed to make observations of C1’s conduct in the home.
It may be as C1 claims that the family home is now relatively harmonious and his children are doing well. While relevant, of itself, that does not establish that C1 is genuinely remorseful for his actions and they have not been or are unlikely to be repeated. The explanation for C1’s lack of insight and remorse may be, as suggested by the nurse who assessed him in 2010, attributable to the symptoms of his schizophrenia. Whatever the explanation I could not be satisfied on balance on the available evidence that C1 is genuinely remorseful and has rehabilitated.
I am not satisfied that evidence is sufficient to establish that C1 is now of good character. The decision under review must therefore be affirmed.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ......................[SGD]..................................................
Associate
Dated 31 July 2014
Date(s) of hearing 23 June 2014 Applicant In person Solicitors for the Joined Party Clayton Utz
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