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

[2022] AATA 540

Durrani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 540 (25 March 2022)

Division:GENERAL DIVISION

File Number(s):       2021/5682

Re:Sameer Durrani

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:25 March 2022

Place:Sydney

The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration in accordance with the direction that the Applicant, Mr Sameer Durrani, satisfies the requirement in paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

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

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether applicant is a person of good character pursuant to paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – single offence – common assault – conditional release order without conviction 12 months – apprehended domestic violence order 12 months – Australian Citizenship [Policy Statement] – Citizenship Procedural Instruction 15 – decision set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs [1979] AATA 179; (1979) 2 ALD 634

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Re Fenn and Minister for Immigration and Multicultural Affair [2000] AATA 931

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

SECONDARY MATERIALS

Australian Citizenship [Policy Statement] (27 November 2020)

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (reissued on 26 February 2021)

REASONS FOR DECISION

Dr L Bygrave, Member

25 March 2022

INTRODUCTION

1. The Applicant, Mr Sameer Durrani, first arrived in Australia on 6 September 2016 after he was granted a skilled independent (subclass 189) visa.

2. On 29 December 2020, Mr Durrani lodged an application for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act). This application was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) on 22 July 2021 on the basis that Mr Durrani did not satisfy the ‘good character’ requirement in paragraph 21(2)(h) of the Act.

3. On 15 August 2021, Mr Durrani made an application for review to the General Division of the Administrative Appeals Tribunal (the Tribunal).

4. The matter was heard by the Tribunal in Sydney on 8 March 2022. Mr Durrani did not have legal representation; he attended the hearing and gave oral evidence in person.

   RELEVANT LEGISLATION

5. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:

   If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

6. Subsection 21(2) of the Act stipulates the general eligibility requirements for Australian citizenship that relevantly include:

   (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. [emphasis added]

   Australian Citizenship [Policy Statement] and Citizenship Procedural Instruction 15

7. The Act does not define the term ‘good character’; however, policy guidance can be found in the Australian Citizenship [Policy Statement] (the Citizenship Statement).

8. The Citizenship Statement outlines ‘overarching legislative requirements for the process of becoming an Australian citizen’ and lists a framework of related documents. These documents include the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) that was reissued on 26 February 2021 with the purpose to ‘identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship’ under the Act.[1]

   [1] Australian Citizenship [Policy Statement] and CPI 15 – Assessing Good Character under the Citizenship Act, section 1.

9. Although I am not bound to strictly apply the Citizenship Statement and CPI 15, these are government policies and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2]

   [2] [1979] AATA 179; (1979) 2 ALD 634.

10. The Citizenship Statement sets out the rights and responsibilities of Australian citizenship, observing that ‘Australian citizenship is a privilege requiring a continuing commitment to Australia’ and ‘Australian citizenship is a common bond, involving reciprocal rights and obligations.’[3]

    [3] Australian Citizenship [Policy Statement], section 3.2.

11. CPI 15 provides policy guidance on the interpretation and application of the good character requirement. The decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs is cited as guidance to the definition of good character:

    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 while 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. [4] [emphasis added]

    [4] (1996) 68 FCR 422 at [431]-[432].

12. CPI 15 further states that the phrase ‘enduring moral qualities’ encompasses concepts such as characteristics that have endured over a long period of time, distinguishing right from wrong, and behaving in an ethical manner including conforming to the rules and values of Australian society.[5] This good character requirement necessitates considering a person ‘in a holistic way’ with all aspects of their life potentially relevant to deliberation of their character.[6] I can be satisfied a person is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout the time they held a visa and their citizenship application process.[7]

    [5] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.

    [6] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.

    [7] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.

13. The role of the character requirement in a citizenship application is also explained by Deputy President Breen in Re Fenn and Minister for Immigration and Multicultural Affairs:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.[8]

    [8] [2000] AATA 931 at [8].

14. CPI 15 also highlights ‘community standards’ and refers to the decision by Deputy President Forgie in Zheng and Minister for Immigration and Citizenship, in which she stated:

    In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.[9]

    [9] [2011] AATA 304 at [120].

15. Community standards, as reflected in Government initiatives, are identified in CPI 15 and include the statement that ‘domestic violence… in any form is not acceptable in the Australian community’.[10]

    [10] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.

16. CPI 15 sets out a non-exhaustive list of characteristics of good character. Relevant to this matter, a person of good character would:

    ·‘respect and abide by the law in Australia’; and

    ·‘not be violent… and not cause harm to others through their conduct’.[11]

    [11] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.

17. I note that CPI 15 states the application of these principles should be considered in view of the facts of the particular case and ‘should not be applied rigidly or inflexibly’.[12] Further, it is necessary to consider any other information relevant to a person’s character such as their family life, whether they are responsibly employed and paying taxes, the time that has elapsed since their offending and whether they have expressed genuine remorse for their past wrong doing. CPI 15 articulates this process as follows:

    Ultimately, a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.[13]

    EVIDENCE

    [12] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.

    [13] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.

    The Applicant

18. Mr Durrani is a citizen of Pakistan. He was born in 1980 and married Ms ‘A’ in 2008. They have two daughters: their older daughter was born in Pakistan in 2009 and their younger daughter was born in Australia in 2018.

19. Mr Durrani first arrived in Australia in September 2016 to work as an IT software analyst. He has been employed on a contract basis with commercial firms in Australia and paid taxes to the Australian government.

20. Since December 2019, Ms ‘A’ and their two daughters have resided in Pakistan. Mr Durrani returned to Pakistan in December 2019 but flew back to Australia in January 2020. He and Ms ‘A’ divorced in 2020, and Ms ‘A’ has now remarried.

    The offence

21. On 10 December 2019, Mr Durrani was found guilty of the offence ‘common assault (DV [domestic violence])-T2’ in the Parramatta Local Court and sentenced to a conditional release order without conviction for a period of 12 months.[14]

    [14] Exhibit T-T7, pages 74-75.

22. The offence of common assault (DV) related to an incident that occurred between Mr Durrani and Ms ‘A’ on 27 October 2019. The documentary evidence, and oral evidence of Mr Durrani and Ms ‘A’, shows the following background and chronology of events.

23. Mr Durrani, Ms ‘A’ and their children attended a concert on the evening of 26 October 2019; their younger daughter (then aged 18 months old) was upset and Mr Durrani wanted to leave the concert and Ms ‘A’ wanted to stay.

24. The following day, Sunday 27 October 2019, Mr Durrani and Ms ‘A’ were at home:

    ·At about 11am, Mr Durrani was sitting on the lounge and Ms ‘A’ was in the kitchen and they commenced a verbal argument about the events of the previous evening. Their daughters were in a second bedroom.

    ·Mr Durrani left the lounge area and went to the main bedroom ensuite bathroom to get changed so he could leave the home. He locked the ensuite bathroom door.

    ·Ms ‘A’ followed Mr Durrani into the main bedroom to continue the argument. She used a pin to pick open the ensuite bathroom door lock and stood in the doorway between the main bedroom and ensuite bathroom.

    ·Mr Durrani told Ms ‘A’ that he didn’t want to talk to her.

    ·Mr Durrani sought to exit the ensuite bathroom in order to leave the home. He pushed Ms ‘A’ out of the way and she fell backwards onto the nearby bed.

    ·Ms ‘A’ subsequently threw a glass on to the kitchen bench, causing it to smash.

    ·Mr Durrani left the home and waited outside the building on the road.

    ·Both Ms ‘A’ and Mr Durrani subsequently contacted the police separately.

25. The incident was witnessed by the older daughter of Mr Durrani and Ms ‘A’, although Mr Durrani told the Tribunal that he could not recall whether she was present. He also disputed the NSW Police ‘narrative’ that stated he had verbally abused Ms ‘A’ during the incident.

26. Following the incident, the police electronically recorded interviews with Ms ‘A’ and their daughter. The NSW Police ‘narrative’ stated Ms ‘A’ had no ‘visible injuries as a result of the incident’ and ‘declined medical attention’.[15]  

    [15] Exhibit T-T8, page 81.

27. At about 12:40pm on 27 October 2019, NSW Police arrested Mr Durrani and conveyed him to the police station. He participated in an interview and made admissions that were consistent with the version of Ms ‘A’.

28. Emails between Ms ‘A’ and a NSW Police Constable, Ms ‘B’, dated 27 and 29 October 2019 set out that Mr Durrani subsequently attended their home and collected his belongings. Ms ‘B’ advised Ms ‘A’ that Mr Durrani was subject to an apprehended domestic violence order (DVO) but the NSW Police did not place ‘any restrictions on him regarding where he is to live’.[16] Ms ‘A’ and their daughters continued to live in their home while Mr Durrani paid the rent, utilities and other expenses. Mr Durrani lived in separate accommodation during this period.

    [16] Exhibit A3.

29. On 28 November 2019, Ms ‘A’ wrote the following email to Ms ‘B’:

    I would like to notify that the incident that took place between me and my husband was due to moment in time but not based on any serious violence. I provoked him too in that stressful situation which made him aggressive. Being immigrant to Australia, we were having lack of awareness about the local laws. I thought it will be just a warning and not more than that. We have kids who are very much attached to both of us. They are suffering from not having a normal family life. Our mutual friends and family got involved and attempted to mediate between us to end the conflict. Both of us are trying to handle the situation in a nice and positive way. I am willing to support my husband in this case and don’t want any harm to him. Therefore, I wish not to proceed the case and I don’t want any charges on him either because it will effect our relationship. I want to continue with him and have a happy married life again. I request to end the AVO because it is creating barrier between us. In future, both of us will be careful in this type of matter because we are much more aware of the laws and consequences now.[17] [replicated as in original]

    [17] Exhibit A4.

30. On 10 December 2019, Mr Durrani pleaded guilty to the offence of ‘common assault (DV)-T2’ in the Parramatta Local Court. Ms ‘A’ attended the Court with their daughters but was not asked or given the opportunity to provide evidence.

31. Mr Durrani was sentenced to a conditional release order without conviction to be supervised by Community Corrections Service for 12 months. He was also subject to a DVO from 10 December 2019 to 10 December 2020 in relation to Ms ‘A’, which required that he must not ‘assault or threaten her’; ‘stalk, harass or intimidate her’; and ‘intentionally or recklessly destroy or damage any property’ in her possession.[18]

    [18] Exhibit R1-TB3, page 25.

32. Mr Durrani, Ms ‘A’ and their daughters flew to Pakistan in December 2019; Mr Durrani then returned to Australia on his own on 15 January 2020.

33. On 17 February 2020, Mr Durrani’s supervision order was suspended by NSW Community Corrections Service with:

    ·standard conditions that he must ‘not commit any offences’ and ‘appear before the Court if called on’ during the term of the order; and

    ·suspension conditions that he must notify Community Corrections of changes in his address/ contact details, resume supervision if directed, contact Community Corrections if he needs help to not re-offend or breach the order, engage ‘in psychological intervention to develop conflict resolution skills’, and advise Community Corrections if Ms ‘A’ returns to live with him.[19]

    [19] Exhibit T-T8, page 83.

    Rehabilitation

34. In written and oral submissions, Mr Durrani stated that he had made efforts to rehabilitate following his offence. This included attending three appointments with a psychologist in February and March 2020, participating in yoga classes, undertaking regular meditation and attending religious gatherings.[20] He noted that he informed NSW Community Corrections of any changes as required and has obeyed Australian laws. He said the period after separating and divorcing from Ms ‘A’ was very difficult, especially the sudden separation from his daughters.

    [20] See Exhibit A1.

35. During the hearing, Mr Durrani was asked to comment on ‘case note reports’ made by officers at the NSW Department of Corrective Services between 10 December 2019 and 24 February 2020: in particular, notes that Mr Durrani ‘stated he has done nothing wrong’; that his wife had ‘provoked him’; and that, although he ‘pushed her’, he did ‘not accept that this was an act of violence’.[21]

    [21] Exhibit R1-TB2, pages 9 and 12.

36. Mr Durrani disputed the context of his comments, but also acknowledged that he did not feel he had done anything wrong at that time as he felt aggrieved by the aggressive behaviour of his Ms ‘A’ picking open the bathroom lock and continuing the verbal argument. He explained that he had no intention of hurting his wife when he pushed her, but rather sought to remove himself from the verbal argument and leave the ensuite bathroom so he could depart the home. He said he now understood that, by ignoring and not speaking to Ms ‘A’, his behaviour had also contributed to the incident and offence. He also acknowledged that his behaviour was due to his inability to deal with conflict and the difficulties he and Ms ‘A’ were experiencing difficulties in their marriage at the time. He said his wife felt isolated and depressed and was seeing a psychologist, and he now realises that he should have been more supportive.

37. Mr Durrani also told the Tribunal that when he has explained the facts about what occurred on 27 October 2019, this has been interpreted as him putting all the blame for what occurred onto Ms ‘A’. He said that he is not seeking to blame Ms ‘A’ but rather, is just trying to explain what happened. He submitted the need to ‘differentiate… between different sorts of domestic violence’ and it ‘is not one simple continuum’.[22] He also said that he initially understood domestic violence was solely ‘physical harm’, but he now understands that domestic violence can include ‘mental or emotional harm’.

    [22] Exhibit A2.

38. Mr Durrani expressed remorse for his offending. He said that he and Ms ‘A’ currently have a good relationship for the sake of their daughters. Ms ‘A’ continues to live in Pakistan with their daughters and has now remarried.

39. Mr Durrani also filed a psychological assessment report by Mr Alfred de Robillard (psychologist) dated 21 February 2022. Mr de Robillard has known Mr Durrani since 2019, when he was providing psychological intervention for Ms ‘A’ and Mr Durrani and Ms ‘A’ were having marital issues.  Mr de Robillard provided a background to the offence including Mr Durrani’s belief that he was ‘fulfilling all the duties of a father and husband’ and Ms ‘A’ picked the lock of the bathroom to get him ‘out for a discussion [he] was avoiding’.[23] Mr de Robillard reported that Mr Durrani ‘stated he physically pushed her out of the bathroom in view of his high level of frustration’ and ‘he never hit her and has never been aggressive to anyone prior to that incident’.[24]

    [23] Exhibit A5.

    [24] Exhibit A5.

1. Mr de Robillard opined:

   Sameer impresses as a very dedicated worker who is career oriented and manages his finances very well. He loves his children and would go the extra     mile to help them. He has a very pleasant demeanour and at times can be a bit reserved. He avoids conflicts at all cost and would keep away from confrontations with anyone.

   Sameer advised that prior to that incident with his ex-wife he never broke the  law nor even been involved in any situation whereby police had to intervene. The aggression he displayed towards his wife on 27/10/2019 is quite uncharacteristic of him.

   Sameer resumed therapy sessions with me [Mr de Robillard] last year in February 2021 and he had 5 psychotherapy sessions throughout the year 2021. Through the following techniques, Cognitive Behavioural Therapy, Interpersonal Psychotherapy, Mindfulness and Relaxation through physical exercises and socialising Sameer’s mental state improved. He was more positive and has now learnt how to resolve conflicts in an amicable manner without displaying frustrations and Sameer clearly demonstrates intense remorse towards his offending.[25]

   [25] Exhibit A5.

   Affidavit of Ms ‘A’

2. Ms ‘A’ filed an affidavit dated 22 February 2022 and provided oral evidence at the Tribunal hearing by conference telephone from Pakistan. In her written affidavit, Ms ‘A’ explained the incident and context as follows:

   The background of the incident is that I wanted Sameer to talk about something that was on my mind but he left the room to avoid the discussion. He went to the toilet in the bedroom and locked the door from inside. I just wanted to talk and he was not giving me attention. I went to the bedroom and used a safety pin to unlock the toilet door to make him face me. I wanted to hold him in the place to make him talk to me. He tried to leave but I didn’t let him so he pushed me and I tripped on the bed right behind me. His intention was not to hurt me. He had pushed me because he just wanted to make enough space for him to leave the toilet I didn’t want him to leave.[26] [replicated as in original]

   [26] Exhibit A6.

3. Ms ‘A’ told the Tribunal that, while Mr Durrani’s behaviour was not appropriate, she had called the police with a view to them mediating between her and Mr Durrani. She wrote:

   Being immigrants, we were having lack of awareness about local Australian laws. I had expected the police to provide reconciliation help just like they do in Pakistan but they arrested him and took him to [the] police station. They charged him with AVO without informing me. We didn’t even know what the alphabets A.V.O stood for at that time. I always felt safe with Sameer and never needed any protection but the police placed the AVO without my permission and told him to obey  it even if I myself tell him not to obey it… I called police many times to drop the charges and AVO because the family was suffering. I even emailed them to explain the situation requesting to drop the case but they were determined to present it in court. I contacted many lawyers for legal advice as well but couldn’t figure out a way to resolve it. I was relieved that the case was finished. I was surprised when Sameer told me that [the] AVO was extended for one year by [the] Court because I had clearly asked [the] police to drop the AVO. I was at court but wasn’t presented in front of the judge…[27] [replicated as in original]

   [27] Exhibit A6.

4. Ms ‘A’ also noted that they had marital issues due to ‘miscommunication’ but that Mr Durrani did not intend to hurt her and is remorseful. She said:

   there was never any violence in our relationship. Me and the kids always felt safe at home. He made a deliberate effort to resolve the matters through community and friends and even travelled to Pakistan to resolve it. He is still paying me the expenses for kids and is very much connected to them despite the distance and difference in time zones.[28] [replicated as in original]

   [28] Exhibit A6.

   References

5. CPI 15 provides limited guidance about the weight to be attributed to character references, noting only that less weight should not be attributed to a character reference ‘merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship’.[29]

   [29] CPI 15 – Assessing Good Character under the Citizenship Act, section 14.1.

6. Mr Durrani filed seven references in the format of statutory declarations to verify his good character; five of these referees also provided oral evidence at the Tribunal hearing. These references included long-term colleagues who described Mr Durrani with ‘innate qualities of integrity and a capacity to work in a collegiate environment’, as ‘honest and straightforward’, ‘very friendly and helpful’ and a ‘gentle person’, ‘always willing to help others’ and ‘humble’, and ‘a gentle and decent person’.[30] 

   [30] Exhibit T-T8, pages 84, 86, 88, 89 and 90.

7. The referees were aware of Mr Durrani’s offending and some referred to this behaviour as ‘sad’ and ‘out of character’. Some of the references also referred to him as a caring father and husband. A long-term friend of Mr Durrani’s from university provided details about the offence and wrote:

   Sameer met me when he was charged. I was very shocked to hear that. He was devastated and was feeling very low. He was afraid of all the court matters as he had never been exposed to those before.

   Sameer is a very simple and humble person. He is social and tries to understand others. He has a strong moral sense of right and wrong and has a unique gift to understand to empathise with other’s situations and feelings. I have never known him to be involved in any sort of physical altercation ever nor have I ever heard him use any inappropriate/foul words in jest or in an argument.[31]

   [31] Exhibit T-T8, page 91.

   CONSIDERATION

8. The sole issue for determination is whether Mr Durrani satisfies the requirements of good character in paragraph 21(2)(h) of the Act.

9. Guided by the Citizenship Statement and CPI 15, I must weigh all the factors relevant to Mr Durrani’s character including the nature and seriousness of his offence, the time elapsed since his offending, his remorse and rehabilitation, and factors including his family life and employment.

10. Having regard to the evidence, I am satisfied that Mr Durrani was found guilty of the offence ‘common assault (dv)-t2’ following an incident with his (then) wife on 27 October 2019. I note that Mr Durrani declared this offence in his application for Australian citizenship.[32]

    [32] Exhibit T-T3, page 38.

11. I accept the evidence shows Mr Durrani pleaded guilty to the offence. He was sentenced by the Court to a conditional release order without conviction for a period of 12 months from 10 December 2019 and this order was suspended with conditions on 17 February 2020. Mr Durrani was also subject to a DVO in relation to his (then) wife for 12 months, which expired on 9 December 2020.

12. I am satisfied that the offence of common assault (domestic violence) and the making of a DVO is serious. Domestic violence – or violence of any kind – is never acceptable in the Australian community.

13. However, Mr Durrani’s offending behaviour occurred on a single occasion that was more than two and a half years ago. I am satisfied, on the basis of the credible evidence given by Ms ‘A’ and referees, that Mr Durrani’s behaviour on this one occasion was out of character and has never been repeated.

14. I am further satisfied that the sentence imposed by the Court for this offence – a conditional release order without conviction for 12 months – shows Mr Durrani’s offending was at the low end of seriousness. The sentence appears to account for the particular circumstances of the matter in which Mr Durrani was actively seeking to avoid the verbal argument with Ms ‘A’, Ms ‘A’ picked open the bathroom lock in order to continue the verbal argument, and Mr Durrani pushed Ms ‘A’ out of the way so as to leave the bathroom and their home.

15. Although Ms ‘A’ sustained no physical injuries from the incident, it was witnessed by their older daughter who then provided an oral statement to the NSW Police.

16. These facts must be weighed against the written and oral evidence of Ms ‘A’ that she telephoned the police for assistance to reconcile or mediate with Mr Durrani, as this is what would occur in Pakistan. Ms ‘A’ told the Tribunal, and filed supporting contemporaneous emails, to show that she requested the NSW Police to drop the charges against Mr Durrani. She said she wanted Mr Durrani to ‘come home’ and for them to ‘have a normal family life’.[33]

    [33] Oral evidence of Ms ‘A’, 8 March 2022.

17. At the hearing, Mr Durrani expressed genuine remorse and sadness at the loss of his family. He said he has participated in counselling with a psychologist to understand his behaviour, and continues to engage in practices such as meditation and yoga for his mental health and well-being.

18. Ms ‘A’ and Mr Durrani are now divorced, and Ms ‘A’ has remarried and lives in Pakistan. Mr Durrani pays expenses for his daughters and they maintain a positive relationship for the sake of their daughters.  Ms ‘A’ told the Tribunal that she offered to provide an affidavit and give evidence at the hearing after she learned that questions were raised about Mr Durrani’s character due to his offence. She said he ‘is a person of good character’.[34]

    [34] Exhibit A6.

19. Mr Durrani told the Tribunal that he wants to remain in Australia and continue employment as an IT specialist. He hopes to eventually work for government and for his older daughter to return to Australia and become an Australian citizen.

20. Weighing all the available evidence, I am satisfied that Mr Durrani is of good character as required by the Act, the Citizenship Statement and CPI 15.

    CONCLUSION

21. In considering all the relevant circumstances, I find Mr Durrani satisfies the requirements of paragraph 21(2)(h) of the Act.

    DECISION

22. The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration in accordance with the direction that Mr Durrani satisfies the requirement in paragraph 21(2)(h) of the Act.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 25 March 2022

Date(s) of hearing:	8 March 2022
Applicant:	In person
Solicitors for the Respondent:	Mr Matthew Sheedy, Sparke Helmore Lawyers