Dev and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 4479

Dev and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4479 (10 November 2020)

Division:GENERAL DIVISION

File Number(s):      2019/4946

Re:Rajesh Dev

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:10 November 2020

Place:Sydney

The decision under review is set aside and the matter is remitted for reconsideration in accordance with a direction that the Applicant satisfies the good character requirement in paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

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

Chris Puplick AM, Senior Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship application – whether Applicant has satisfied paragraph 21(2)(h) – good character requirement – Citizenship Policy – meaning of ‘good character’ – enduring moral qualities – domestic violence – decision under review set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21 and 24

Crimes (Sentencing Procedure) Act 1999 (NSW) s 10

CASES

AFY18 v Minister for Home Affairs [2018] FCA 1566

Ahmed and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4458

Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601

Al-Boushama and Minister for Immigration and Border Protection [2015] AATA 5

Assafiri and Minister for Immigration and Border Protection [2014] AATA 35

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

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

Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132

Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033

Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686

Minister for Home Affairs v Sharma [2019] FCA 597

Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575

Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197

Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608

Sui and Minister for Immigration and Citizenship [2008] AATA 1062

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

Citizenship Policy, 1 June 2016, Introduction to Citizenship Policy, ch 11

REASONS FOR DECISION

Chris Puplick AM, Senior Member

10 November 2020

1. Mr Rajesh Dev (Applicant) seeks a review by this Tribunal of a decision by a delegate of the Minister (Respondent) refusing his application for citizenship by conferral on the basis that the delegate was not satisfied the Applicant is a person of good character as required under the provisions of the Australian Citizenship Act 2007 (Cth) (Act).

2. The Applicant’s citizenship application was made on 12 June 2018 and he was notified of the refusal of that application on 19 July 2019. The Applicant’s application for review to this Tribunal was lodged on 13 August 2019 and heard on 30 October 2020. Given the restrictions imposed on the Tribunal’s operations by COVID-19 safety requirements, the parties were heard by videoconference using the Microsoft Teams platform.

   RELEVANT PERSONAL DETAILS

3. The Applicant was born in 1979 in India and came to Australia in September 2013 holding a Skilled Nominated (Subclass 190) visa. On 16 April 2018 the Applicant formally changed his name to that by which he is now known.[1] In 2008 he married Mrs Sreelekshmi Rajesh. The marriage took place in Kerala (India) and was a marriage arranged by the respective families. The Applicant has two sons born in 2012 and 2018.

   [1] Section 37 documents (T documents) at 38.

4. His wife obtained citizenship in October 2019[2] and their elder son was granted citizenship at the same time. The younger son also has Australian citizenship.[3]

   [2] Australian Citizenship certificate of Sreelekshmi Rajesh dated 3 October 2019.

   [3] T documents at 32.

   DETAILS OF APPLICANT’S OFFENDING

5. The basis of the delegate’s refusal of his application was that the Applicant had been before the Courts and had been charged and found guilty of two counts of common assault (domestic violence) - T2.

6. For these offences Magistrate McRae sentenced the Applicant, pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act), as follows:

   I am proposing to conditionally discharge you, sir, on the basis of you entering two bonds under s 10(1)(b) of the Act, for 18 months to not only be of good behaviour, but to strictly comply with the Apprehended Violence Order as it relates to your former wife.

   In terms of that Apprehended Violence Order, I see that 12 months is sought, however, I am proposing that to be for a term of 18 months…[4]

   [4] Transcript of sentencing hearing in the Katoomba Local Court on 26 July 2016 (sentencing transcript) at 49.

7. The Tribunal notes two matters in relation to this sentence, namely that the Crown had sought an Apprehended Violence Order (AVO) for 12 months,[5] and that the AVO related to the Applicant’s current wife, the couple never having been divorced.

   [5] Ibid 47.

8. Under the provisions of the Sentencing Act, no conviction was recorded against the Applicant.[6]

   [6] T documents at 253.

9. The AVO in question was issued provisionally by the NSW Police on 28 February 2016[7] and the Katoomba Local Court made a Final AVO on 26 July 2016 for a period of 18 months.[8]

   [7] Ibid 246-249.

   [8] Ibid 256-257.

10. It is not permitted for the Tribunal to “go behind” the sentences imposed by the Courts or challenge the essential facts on which the sentences were based, but it is at liberty to examine the nature of the matters therein dealt with.[9]

    [9] Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575, 596-597; Minister for Home Affairs v Sharma [2019] FCA 597, [20]; Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197, [39]-[41] and [45]-[47].

11. When the Applicant came before the Court, he was charged with three counts of common assault (domestic violence)-T2. The Magistrate dismissed the first of these charges, finding that in making physical contact with his wife the Applicant had done so in self-defence.[10]

    [10] Sentencing transcript at 45.

12. The remaining two charges were to the effect that:

    (a)during an altercation over a mobile phone the Applicant had seized the phone from his wife’s hand and may have injured her finger or thumb,[11] before throwing the phone to the floor where the screen cracked; and

    (b)during a subsequent argument over two phones, the Applicant’s wife had obstructed his exit in a doorway and he pushed past her to get out, and afterwards the Applicant and his mother tried to take the phones from his wife resulting in all three people falling to the floor.[12]

    [11] Ibid 29 and 46.

    [12] Ibid 46.

13. The Magistrate described the latter incident as follows:

    In doing so, to get through the door, he admits he didn’t ask her to move, but merely pushed her; thereafter, in a fairly comical way, one would suspect, not only he, but the alleged victim and his mother, tussled possession of the two phones in the body of the restaurant, all finishing up on the floor.[13]

    [13] Sentencing transcript at 46.

14. The Magistrate found the Applicant guilty of the second and third counts of common assault stating that the two charges “are certainly at the very low end of the spectrum, in terms of severity”.[14]

    [14] Ibid.

15. The Tribunal notes that the victim did not report these matters to the police until some 4 months after their occurrence[15] and after she had returned from a trip to India where, the Applicant says, she was encouraged to press such charges.[16]

    [15] According to the Police Facts Sheet the first offence occurred around 25 July 2015 and the latter offences in October 2015. They were not reported to the Police until 27 February 2016: T documents at 26-29.

    [16] The Applicant’s wife travelled to India between 3 December 2015 and 20 February 2016: Applicant’s statement dated 21 September 2019 at 9-10. Details and assertion repeated in oral evidence to the Tribunal.

16. The description of the offences in the Court are somewhat different from those appearing in the Police Facts Sheet where reference is made to “a history of domestic violence”, an assault alleging the victim was “grabbed … by the throat” and where the victim was “struck … in the forehead with [the Applicant’s] right fist”.[17]

    [17] T documents at 27-28.

17. In Court there was no evidence led of any history of domestic violence, no reference was made to the victim being grabbed by the throat, the Applicant directly denied hitting his wife’s forehead with his fist and the Magistrate did not find otherwise.

18. Although the Crown only sought a good behaviour bond for a 12-month period, it appears that the Magistrate may have imposed 18 months to coincide with the length of the AVO. His Honour did not offer any formal explanation for settling on 18 rather than 12 months.

    THE LEGISLATIVE SCHEME

19. There are several ways in which a person may become an Australian citizen. For those born overseas and without other rights of acquisition the usual route is to make an application for citizenship by conferral, as the Applicant has done.

    Citizenship by conferral

20. In order to qualify for citizenship by conferral an applicant must satisfy a number of requirements which are set out in subsection 21(2) of the Act. The qualifying conditions are enumerated from paragraphs (a) to (h). Each of them must be satisfied.

21. In terms of the Applicant, the delegate assessed that paragraphs (a) to (g) were satisfied.[18]

    [18] T documents at 56-63.

22. Paragraph 21(2)(h) requires that an applicant be “of good character at the time of the Minister’s decision on the application”. In his/ her assessment the delegate found that the Applicant was not of good character and this was the sole identified basis for the refusal of his application.

    Good character

23. The term “good character” is, unhelpfully, not defined in the Act and so the Tribunal must place reliance upon the definitions developed by the Courts and supported by the provisions of the Australian Citizenship Policy (Policy) issued to assist decision-makers.

24. In Irving v Minister for Immigration, Local Government and Ethnic Affairs, the Full Federal Court stated:

    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.[19]

    [19] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431.

25. The Tribunal has further found that evidence of what a person says, does or what they are heard to say or seen to do should be taken as indication of their acceptance of the values and norms to which they are expected to adhere and be loyal.[20]

    [20] Zheng and Minister for Immigration and Citizenship [2011] AATA 304, [120].

26. The Policy itself then goes on to outline what the characteristics of good character might amount to. These are set out, at some length, as expecting that applicants would (inter alia):

    ·respect and abide by the law in Australia and other countries.

    ·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:

    oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship.

    ·not be violent, involved in drugs or unlawful sexual activity, 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).

    ·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia.[21]

    [21] Citizenship Policy, 1 June 2016 (Policy) at ch 11.

27. The Policy elaborates, by attaching to the phrase “enduring moral qualities”, further qualifications, namely:

    ·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.[22]

    [22] Ibid.

28. However, it is equally important to note, with reference to that phrase, the Policy also states that “[i]n this context, ‘moral’ does not have any religious connotations”.[23]

    [23] Ibid.

29. The Tribunal notes that the role of the Policy is defined as being:

    … to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.[24]

    [24] Policy at Introduction to Citizenship Policy.

30. In addition, the Tribunal, standing as it does in the shoes of the original-decision maker but making a de novo assessment of the evidence,[25] may take into account any other relevant factors including the gravity of any offences, the particular abhorrence of crimes committed against vulnerable people (including women, children and the elderly), the frequency of offending, the length of time since an offence was committed and the degree of remorse or rehabilitation demonstrated by an applicant.[26]

    [25] AFY18 v Minister for Home Affairs [2018] FCA 1566, [9] per Charlesworth J.

    [26] Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132, [14].

    EVIDENCE BEFORE THE TRIBUNAL

31. The Applicant gave extensive evidence and was cross-examined by both the Respondent and the Tribunal. His narrative was essentially that which he had given to the Court, in which he stressed that at the time of the assaults he was under considerable personal stress as a result of being the owner and operator of an Indian restaurant in Katoomba. He said that he ran this as a “one man” show and in particular received little help from his wife, which he found frustrating. He also mentioned that he had financial problems associated with the loans taken out for, and the general management of, the business. He did not seek to deny the offences and he expressed considerable contrition and regret in relation to them.

32. The Applicant noted that he had closed his restaurant business and is now employed as a yardman at a large transport company.

33. He indicated that he had undertaken certain anger management courses[27] about which he provided some details, although the Applicant was challenged on the details/ utility of these by the Respondent. He gave testimony (supported by other witnesses) to the effect that he volunteers to help with the Salvation Army and with his local church.

    [27] Certificate of course completion – Anger Management 101 at Universal Class.

34. Evidence was given by former and current employers Ms Karen Thomas and Mr Dhaneshwar Prasad, and workmate Mr William Dias. It is not necessary to repeat their evidence in detail. Suffice to say they all spoke positively of the Applicant as a person of good character who was hard-working, efficient and loyal. Each was aware of the Applicant’s offending (although not of the precise detail of the two offences) and each was impressed with the Applicant’s work ethic and his commitment to his family.

35. Supportive evidence along the same lines was given by his family physician, Dr Asela Don, who mentioned the extent to which he believed the Applicant had become a “more mature, caring, and understanding person than before”.[28]

    [28] Letter from Dr Asela Don dated 12 February 2020.

36. The Tribunal took particular note of the written and oral testimony of Dr Hal Ginges, a solicitor who knows the Applicant and his family through their previous restaurant business in Katoomba. He was aware of the Applicant’s appearance before, and sentencing by, the Court. He spoke very positively of the Applicant and noted that he had many years’ professional experience dealing with matters of domestic violence but nevertheless regarded the Applicant as a person of “honesty and integrity”, and was pleased to observe how the Applicant and his wife had reconciled after their differences and temporary separation.[29]

    [29] T documents at 45.

37. The Applicant supplied written statements by Mr Steve Henkelman and Mr Vikram Kulkarni, both psychologists, but the Tribunal has not accorded them any weight as neither was called to give oral testimony in support of those statements.

38. Similarly, the Tribunal has not accorded any weight to either the statutory declaration or the later statement of the Applicant’s wife. Again, she was not called to give evidence and her expressions of regret for having made a complaint against her husband in the first instance are less than convincing.

    CONSIDERATIONS

39. The Tribunal starts from the position that domestic violence in always unacceptable behaviour and reflects adversely on any perpetrator.

40. In Mendoza, I made it clear that:

    The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[30]

    [30] Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686, [48].

41. In Al-Boushama, Professor McCallum AO said that "I regard domestic violence offences as serious offences".[31]

    [31] Al-Boushama and Minister for Immigration and Border Protection [2015] AATA 5, [22].

42. This view was reinforced by Deputy President Constance in Sharma where he 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".[32]

    [32] Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608, [37].

43. That said, it is generally accepted that, in relation to any offending behaviour, there are degrees of severity and culpability. There may be extenuating circumstances or other relevant matters which a decision-maker may take into account when making assessments of issues such as “good character”.

44. As was said in Irving:

    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.[33]

    [33] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 432.

45. The Respondent was at pains to stress before the Tribunal what it perceived as the Applicant’s lack of insight in relation to his behaviour and the possibility that he might commit a similar offence(s) in the future. The “lack of insight” was characterised as being evident in the Applicant’s “refusal to take responsibility” for his actions by blaming them on the stress of managing a small business and blaming his wife/ the victim for the situations in which he laid his hands upon her.

46. The Tribunal does not accept these submissions. The Tribunal believes that the Applicant has shown genuine remorse for his actions and a more mature and developed appreciation of his responsibility for them.

47. Since the events in question it is clear that there has been a reconciliation between the parties. It is also clear that the Applicant was genuinely and meaningfully impacted by the time he was denied contact with his wife and child during the operation of the AVO which he complied with without incident. Since that time, the couple have had a second child.

48. The Respondent argued that insufficient time had passed since the offences in question for the Tribunal to be satisfied the Applicant had genuinely reformed.

1. This Tribunal has frequently examined the question of the length of time which should elapse between the commission of an offence and the granting of an application for citizenship where issues of “good character” are central.[34] This is a multifactorial exercise.

   When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.[35]

   [34] Ahmed and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4458, [64]-[70].

   [35] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132, [14].

2. In Ahori, the Tribunal, in relation to domestic violence offences, noted its concern about issues of frequency and recency:

   There is nothing in this decision which would preclude the Applicant from lodging another application in due course. However, such an application would need to be made after the expiration of some time and only if the Applicant has no further domestic violence or other issues that would preclude the granting of citizenship. The record of transgressions by the Applicant is too frequent and too recent for the Tribunal to conclude that he was at the time he made the application, or now, a person of good character for the purposes of the Act.[36]

   [36] Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601, [83].

3. In Mahmood the Tribunal addressed similar matters where a relatively short period of time had elapsed since that applicant’s last offence.[37] In Sharma the Tribunal was not convinced that a two year lapse since that applicant’s most recent offence was sufficient for it to be confident that the applicant had reformed.[38] In Fenn the Tribunal was concerned that five years might not have been enough for the applicant to demonstrate a restoration of character to the required level[39] and in Sui six years was thought insufficient.[40]

   [37] Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033, [12].

   [38] Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608, [47]-[48].

   [39] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].

   [40] Sui and Minister for Immigration and Citizenship [2008] AATA 1062, [72].

4. The Tribunal endorses the finding in Assafiri that what will be considered a sufficient elapse of time “will depend on all the circumstances of the individual case”.[41]

   [41] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, [67]

5. In this case the Tribunal believes that sufficient time has elapsed since the offences which took place in July and October 2015, for which the Applicant was sentenced in July 2016, for him to be considered of good character and for the Tribunal to allow consideration of the application not to be thwarted on that basis.

6. In addition, the Tribunal accepts that the Applicant is now in a place where he is far less likely to be put under stress. He is an employee with a steady job and limited responsibilities – he is no longer the “one-man band” of a small business under financial and other pressures. He had taken steps to learn how to cope with both stress and anger management.

7. Having considered the nature and gravity of the Applicant’s offences, the change in his personal and family circumstances which have effected change in his attitude and behaviour, the testimony given on his behalf and his own presentation before the Tribunal, the Tribunal is persuaded that the Applicant is a person of good character for the purposes of the Act.

8. The Tribunal notes that the delegate in its decision of 19 July 2019 already determined that the Applicant meets all the other legislated criteria under subsection 21(2) of the Act and that none of the prohibitions under section 24 apply. Therefore, there should be no impediment to the Applicant being granted citizenship by conferral now that paragraph 21(2)(h) has been found to be satisfied.

   DECISION

9. The decision under review is set aside and the matter is remitted for reconsideration in accordance with a direction that the Applicant satisfies the good character requirement in paragraph 21(2)(h) of the Act.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 10 November 2020

Date(s) of hearing:	30 October 2020
Solicitors for the Applicant:	Ms N Dias, West Legal & Associates
Solicitors for the Respondent:	Mr Z He, Clayton Utz