Chandra and Minister for Immigration and Citizenship

[2010] AATA 992

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 992

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2037

GENERAL ADMINISTRATIVE DIVISION		)
Re		Nitin Chandra

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member A K Britton

Date10 December 2010

PlaceSydney

Decision The decision under review is set aside, and the matter remitted to the Minster for reconsideration with the direction that Mr Chandra is not ineligible to become an Australian citizen by reason of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

.....................[sgd]..................

Senior Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship – character test – policy criteria – consideration of applicant’s criminal history.

Australian Citizenship Act 2007 (Cth) – s 21(2)(h)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313

"CDCZ" and Minister for Immigration and Citizenship [2008] AATA 644

Booth and Minister for Immigration and Citizenship [2009] AATA 185

Haeri and Minister for Immigration and Citizenship [2009] AATA 422.

Long and Minister for Immigration and Citizenship [2010] AATA 464

REASONS FOR DECISION

10 December 2010 Senior Member A K Britton           

1.      Mr Nitin Chandra applies to the Administrative Appeals Tribunal for review of the decision made by a delegate of the Minister for Immigration and Citizenship to refuse his application for Australian citizenship. The stated reason for the decision was that the delegate was not satisfied that Mr Chandra was of “good character” — one of the statutory criteria for Australian citizenship. Central to that decision was Mr Chandra’s conviction in November 2008 on two counts of “assault occasioning bodily harm” and “stalk/intimidate intend fear of physical/mental harm” (the subject convictions).

2.      Mr Chandra has lived in Australia continuously since 2001. He was granted a subclass 100 Spouse (permanent) visa in July 2006. Both his wife and only child are Australian citizens.

Good character requirement

3.      Section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”) provides:

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.

4.      It is agreed that the only issue to be decided is whether Mr Chandra is now of good character. It is also agreed that if I find that he is, the appropriate course would be to remit Mr Chandra’s application to the Minister for determination in respect of the balance of the criteria for Australian citizenship set out in s 21(2) of the Act.

5.      The meaning of the term “good character” has been considered in the context of the Act by the Tribunal (differently constituted) on a number of occasions: see, for example, Booth and Minister for Immigration and Citizenship [2009] AATA 185; "CDCZ" and Minister for Immigration and Citizenship [2008] AATA 644; Long and Minister for Immigration and Citizenship [2010] AATA 464; Haeri and Minister for Immigration and Citizenship [2009] AATA 422.

6.      In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, the Full Court of the Federal Court considered the meaning of the term in the context of the migration legislation. Lee J said at 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).

7.      Davies J said in the same case at 425:

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.

8.      In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, the Full Federal Court said at 197:

The words ‘good character’ in the section should, as Lee J pointed out in Irving (at 431-432), be understood as ‘a reference to the enduring moral qualities of a person’. Conduct may make those qualities visible, but it should never be confused with them. In each case, having had regard to the conduct, the Minister or other decision-maker must still come to a further conclusion, whether or not to be satisfied that the person is of good character.

Australian Citizenship Instructions

9.      In assessing whether Mr Chandra is a person of “good character”, I am required to have regard to Government policy providing it is not inconsistent with the Act. The Australian Citizenship Instructions (“the Instructions”) have been issued under the Act. The stated role of the Instructions is to:

[S]upport the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision-makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.

10.     Chapter 10 of the Instructions states that:

The term “good character” is not defined in the Act. Decision-makers must therefore be guided by the ordinary use of the words in making assessments.

It is the responsibility of the applicant to show that they are of good character. If a decision-maker is not satisfied that an applicant is of good character at the time the application is to be decided, the application must be refused. There is no legislative provision to defer an application made under the Act.

…

An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record. ... An applicant’s behaviour does not have to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour.

…

11.     The Instructions list a number of factors that decision-makers should have regard to where a person has a criminal record. They include:

the seriousness of any offences against ordinary community standards

…

whether there are any on-going obligations in relation to the sentence received, such as a good behaviour bond

…

whether an offence was a one-off occurrence that can now be considered "out of character", or part of an ongoing pattern of behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see below).

whether there were any extenuating circumstances relating to the offence. For example, an offence committed under periods of temporary psychological disturbance (including involuntary effects of medication, post-natal depression, battered wife syndrome) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.

the applicant’s age at the time the offence(s) were committed

A person's behaviour as evidenced by a criminal record is relevant to the assessment of character. Appropriate weight must be given to a person's behaviour immediately prior to the making of a decision.

A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.

Can the Tribunal “look behind” the convictions?

12.     It is argued for Mr Chandra that while the Tribunal must accept the fact of his 2008 convictions for “assault occasioning bodily harm” (s 59 of the Crimes Act 1900 (NSW) and “stalk/intimidate intend fear of physical/mental harm” (s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)), it is open to the Tribunal to “look behind” the facts on which those convictions were based. He cites in support the following passage from the judgement of Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313:

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 (Ridley at 281-282), 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 (see Gungor per Fox J at 445-446); and

(b) limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469).

As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act [Migration Act 1958 (Cth)] 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…

13.     The Minister agrees that the Tribunal may, if appropriate, “go behind” the facts found by the sentencing court, but contends that it is not appropriate to do so in this case. To put the parties’ submissions in context, it is necessary to look at both the facts before the sentencing court and the evidence given in these proceedings that challenges those facts.

14.     In the proceedings before the NSW Local Court Mr Chandra was not legally represented. He entered a guilty plea in relation to all charges. He testified in these proceedings that the reason he had pleaded guilty was because he had been advised by the police that “nothing would happen” because it was a first offence.

15. The standard procedure in NSW magistrates’ courts is where a person pleads guilty to an offence, the police prosecutor tenders a statement of alleged facts and the accused’s criminal history (if any). A copy of the police facts relating to the charges laid against Mr Chandra were contained in the s 37 [Administrative Appeals Tribunal Act (Cth) 1975] documents. It states:

An altercation ensued between Mr Chandra and his wife when he returned home having consumed alcohol with his brother-in-law

Mrs Chandra refused to give Mr Chandra the keys to his car because she believed he was over the prescribed alcohol limit

Mrs Chandra attempted to ring the police but Mr Chandra grabbed her by the throat and pushed her into the lounge while carrying a steel knife

Mr Chandra said: “Now that you are calling the cops I’m going to do something serious to you”

She managed to kick Mr Chandra away and went outside

Mr Chandra followed her outside, then hit her with a shoe four or five times in the head, arms and shoulders.

A neighbour came to the aid of Mrs Chandra and Mr Chandra left

Police attended and observed redness to Mrs Chandra’s neck and shoulder.

16.     Mr and Mrs Chandra each gave evidence in these proceedings about the incident that led to the subject convictions. Each claimed that the extent of the altercation was that they argued and pushed each other once or twice. Each denied that Mr Chandra had grabbed a steak knife, verbally threatened Mrs Chandra after she rang the police, or grabbed her by the throat. While their respective accounts were largely consistent, there were nonetheless a number of inconsistencies. For example, Mrs Chandra testified that consistent with the police facts sheet, a neighbour had attended the incident. This was denied by Mr Chandra. As a possible explanation for the observation made by police of some redness around her shoulders, she proffered being pushed by her husband. Mr Chandra could think of no explanation and denied touching his wife’s shoulders. Each gave different accounts of how Mr Chandra obtained the car keys and eventually drove off leaving the family home.

17.     In these proceedings, Mrs Chandra testified that only half of what she had told the police when they attended her home after reporting the incident was true. She claims that she had been so angry with her husband for his decision not to stay at home on the evening of the incident that she gave the police an exaggerated account. She claims that she deeply regrets having done so and soon after the incident, took steps to amend matters. Shortly after the incident she wrote to the sentencing magistrate asking that no further action be taken against her husband. She said that she was not aware that her complaint would lead to charges and had hoped that her husband would just get a warning. She claimed that she is not — and has never been — fearful of her husband. She testified that he returned to the family home the day after the incident and they were reconciled; Mr Chandra corroborated that claim.

18.     As Branson J pointed out in Ali, there is a strong prima facie presumption that the facts found by the court in convicting and sentencing were found correctly. This places a “heavy onus”, as Her Honour put it, on a party seeking to persuade the Tribunal to accept facts other than those on which the convicting court relied: at 325. As noted, Mr Chandra was not legally represented in the proceedings before the Local Court. On his account, he did not understand that by entering a guilty plea he was in effect accepting the police statement of facts. Notwithstanding the obvious difficulties where a person is unrepresented and pleads guilty, it may be appropriate to undertake a new fact-finding exercise where the police version of events is challenged.

19.     However, I am not satisfied that the “heavy onus” has been discharged in this matter for the following reasons. First, there is no independent evidence to corroborate the more innocent account of the incident given by Mr Chandra in these proceedings. It goes without saying that his wife is not an independent witness. Second, there are a number of material inconsistencies in the respective accounts given by Mr Chandra and his wife. This may be explained by the two year passage of time since the incident occurred. However, these inconsistencies raise doubts over the reliability of the accounts given. Third, while Mrs Chandra has provided a plausible explanation, which might explain why she chose to give an untruthful account to police, that she did so places doubt over the veracity of the account she gave in these proceedings. For these reasons, I could not be satisfied that the heavy onus that would allow me to accept Mr Chandra’s alternative version of events has been discharged.

Decision

20.     It falls to Mr Chandra to rebut the presumption that he is not of good character as a consequence of his criminal record. To decide whether the presumption has been rebutted it is necessary, among other things, to have regard to the factors listed in the Instructions as set out above.

21.     The seriousness of any offences: As properly conceded by Mr Chandra both offences —“assault occasioning bodily harm” and “stalk /intimidate intend fear of physical/mental harm” — are categorised by the Instruction as crimes of violence and therefore as serious. The involvement of a knife and the verbal threat made to Mrs Chandra after she rang the police indicate that the incident was something more than a heated domestic altercation. Nonetheless, it is relevant that the sentencing magistrate did not consider Mr Chandra’s conduct to be serious enough to warrant a custodial or suspended sentence or a community service order. I agree with the assessment of the Minister that the offences, while serious, fall at the low end of the scale.

22.     On-going sentencing obligations: Mr Chandra is not currently subject to any sentencing obligations. His s 9 bond [Crimes (Sentencing Procedure) Act 1999 (NSW)] bond was discharged in November 2009. There is no evidence of non-compliance with conditions of that bond.

23.     Age at time of offending: Mr Chandra was 28 at the time of the offence.

24.     One-off conduct: There is no evidence that Mr Chandra had been convicted or charged with any offending conduct other than the subject offences.

25.     Mrs Chandra testified that her husband’s offending conduct was “out of character”. She contends that he is deeply committed to his family. In addition, a number of character references provided by friends and colleagues of Mr Chandra were tendered in these proceedings. Those referees that acknowledge the subject offences opine that the offending conduct was out of character and that they have never witnessed Mr Chandra act in a violent or aggressive manner.

26.     Behaviour immediately prior to the making of a decision: Mr Chandra has been in stable employment for the past five years. He has not been charged with any criminal offences, and denies having committed any other offences since the s 9 bond was discharged. .

27.     Reputation in the community: Testimonials provided by friends and work colleagues of Mr Chandra were tendered in these proceedings. All attest to his good character. All describe Mr Chandra as a committed family man. His employer of five years stated that he is an exemplary employee — diligent and trustworthy. Mr Chandra has recently been promoted to a responsible position within the company. A number of work colleagues provided statements in support of that assessment. A number of referees further state that they have not witnessed Mr Chandra being verbally or physically abusive to his wife.

Conclusion

28.     The Minister contends that insufficient time has elapsed since Mr Chandra has been free of any obligation to the court to establish a pattern of good conduct and a change in character since he committed the subject offences. The Minister also contends that Mr Chandra’s reticence in acknowledging any wrongdoing on his part raises some doubts that as claimed he has “always regretted the incident”.

29.     Insofar as he now disputes some of the facts on which his conviction was based, a difficulty arises in assessing whether, Mr Chandra acknowledges and is genuinely remorseful for his offending conduct. Plainly, he cannot be remorseful for conduct that he denied occurred. While there is an obvious difficulty in reconciling Mr Chandra’s claim of genuine remorse and his denial of key aspects of the incident, I accept that in broad terms he is remorseful for contravening Australian law. Importantly, I accept his claim that he acknowledges that the use of physical violence towards women, including his wife, is unacceptable.

30.     I must now assess whether the period of time since Mr Chandra has been free of any obligation to the court is sufficient to establish a pattern of good behaviour and thus justify a conclusion that he is now a person of good character. To do this, it is also relevant to take into account his behaviour during the time he was on a bond. A bond to be of good behaviour is a solemn, legally-binding undertaking by a convicted person that they will abide by the conditions of the bond, including the condition requiring them to obey the law at all times. When a bond is imposed, the defendant is, in effect, placed on probation and sentence is deferred. If the person breaches the bond, he or she may be called up for sentence and much more severe penalties may be imposed.

31.     The criminal law has a hierarchy of sentencing options. As a matter of law, imprisonment is a sentence of last resort, but courts have a menu of community-based options, including the imposition of a bond, which are intended both to punish and to rehabilitate offenders. While there is no hard and fast rule on the subject, if the person has no prior criminal history, compliance with the terms of a bond, and in particular the condition that the person be of good behaviour for the period of the bond, is generally regarded by criminal courts as prima facie evidence that a person has been rehabilitated or that the subject offence was a one-off lapse of judgment that was out of character. Absent evidence of misbehaviour or other risk factors such as mental illness or substance abuse, common sense supports such a conclusion.

32.     It would be reasonable in this case, therefore, to take into account not only the time that has elapsed since the bond expired, but also the time that has elapsed since the bond was imposed — about two years. It is a strong indication that Mr Chandra’s offence, while a significant blemish on his reputation, was not symptomatic of a general and ineradicable defect of character. It would be reasonable to expect that if Mr Chandra had a propensity to violence or loss of control of his emotions, it would have revealed itself within that two-year period. While a conclusion that Mr Chandra remains a person of fundamental good character is reached deductively from the absence of evidence, in the circumstances it is a reasonable one.

33.     Such a conclusion is buttressed by the facts that there are no obvious risk factors or warning signs to the contrary: he has no history or drug or alcohol abuse and no other criminal history. It is also supported by the opinion expressed by Mr Chandra’s employer, colleagues and associates, who have attested that he is a person of good character and repute.

34.     For these reasons, I have decided to set aside the decision under review and remit the decision to the Minster for reconsideration, with the direction that Mr Chandra is not ineligible to become an Australian citizen by reason of s 21(2)(h) of the Act.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: ...................................[sgd]........................................
  Associate to Senior Member Britton

Date of Hearing:  1 December 2010
Date of Decision:  10 December 2010
Counsel for the Applicant:        Mr A Kumar        
Solicitor for the Applicant:         Harish Prasad & Associates
Solicitor for the Respondent:     Clayton Utz