Garcia and Minister for Immigration and Multicultural Affairs (Citizenship)
[2024] ARTA 408
•17 December 2024
Garcia and Minister for Immigration and Multicultural Affairs (Citizenship) [2024] ARTA 408 (17 December 2024)
Decision and Reasons for Decision
Applicant/s: Rowency Sumabis Garcia
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/0735
Tribunal: Mr J Cipolla General Member
Place: Sydney
Date: 17 December 2024
The correct and preferable decision is that the reviewable decision is set aside, and remitted to the Respondent with the direction that the Applicant meets the character requirements of section 21(2)(h) of the Citizenship Act 2007 (Cth)
..........................[SGD]..............................................
Mr J Cipolla General Member
CATCHWORDS
CITIZENSHIP – whether the good character requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) is satisfied – relevant law and policy considered – Applicant’s background and criminal history considered – character references considered – decision under review set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) section 21
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422.
Re Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
SECONDARY MATERIALS
CPI 15 – Assessing Good Character under the Citizenship Act
Statement of Reasons
BACKGROUND
On 6 February 2024, the Applicant sought a review of the decision of the delegate made on 17 January 2024 to refuse her application for the grant of citizenship by conferral.
The decision not to grant the Applicant Australian citizenship was made under section 21(2)(h) of the Australian Citizenship Act 2007 (the Act) on the basis that the delegate was not satisfied that the Applicant was a person of good character at the time of making their decision.
The matter was listed before a Conference Registrar on 10 July 2024 and directions were made requiring the Respondent to provide to the Tribunal and to the Applicant a statement of facts, issues and contentions (SFIC) and any additional evidence on which they intended to rely. The date for the provision of this material was by 16 August 2024.
The Applicant, who was unrepresented in the proceedings before the Tribunal, provided a statement which was filed with the Tribunal on 6 August 2024 and a copy was duly provided to the Respondent. The Applicant also provided a number of written references attesting to her character. The Tribunal has duly considered this evidence.
The Tribunal received a SFIC dated 16 August 2024 from the Respondent. The Tribunal has duly considered the Respondent’s SFIC.
A hearing in the review was scheduled for 5 December 2024 and the Applicant appeared unrepresented. The Minister was represented by Ms Nguyen of counsel, instructed by Ms Ng from the Australian Government Solicitors.
The Respondents SFIC contains a helpful summary of the background to the application before the Tribunal.
MIGRATION HISTORY
The Applicant was born in the Philippines on 23 December 1983. The Applicant arrived in Australia on 27 August 2004 on a temporary Sponsored Family Visitor (Subclass 679) visa.
At hearing, the Applicant advised the Tribunal that she returned to the Philippines at the end of her visit and completed a Bachelor of Computer Science. The Applicant then applied for a student visa to return to Australia which was duly granted, and she re-entered the country in 2009 and completed a number of courses. In 2016 the Applicant was sponsored by her then de facto partner, an Australian permanent resident, for a partner visa.
On 14 January 2020 the Applicant was granted a permanent Subclass 801 Partner visa.
OFFENDING HISTORY
On 19 October 2021, the Applicant was found guilty of three counts of common assault in a domestic violence setting. The offending occurred with CD with whom the Applicant had engaged in an on off relationship for 5 months outside of her then de facto relationship.
As a consequence of the offending, the Applicant was subjected to a conditional release order (CRO) for 18 months and the evidence before the Tribunal indicates that she complied with the conditions of the CCO.
The Applicant was also subjected to an apprehended domestic violence order (ADVO) which was revoked two months before its expiration on 1 November 2022. The evidence indicates that there was no breach of the ADVO.
The evidence indicates that no convictions were recorded with respect to the offending.
As noted, the circumstances with respect to the offending indicated that the Applicant was in an on-off relationship with the victim for five months leading up to the incident.
The police facts sheet referred to in the Respondent’s tender bundle indicates that the offending occurred on 7 February 2021, when the Applicant attended the victim’s house and began banging on the victim’s front door. The victim refused to let the Applicant inside the residence. After a period of time had passed, the victim exited the residence to take her garbage bins out at which time the Applicant was waiting at the door and grabbed the victim by the throat pushing her into the house. The parties began verbally arguing. The Applicant grabbed the victim by the throat again and took a mobile phone from her. The parties then exited the residence to have a cigarette and the victim attempted to retrieve her phone from the Applicant at which time the Applicant grabbed the victim’s arm and threw it away from her and grabbed the victim’s throat again. After finishing the cigarette, the victim reminded the Applicant about where to dispose of cigarette butts at which time the Applicant grabbed the victim by the throat again. The parties went back inside, and the Applicant again grabbed the victim by the throat.
At hearing, the Applicant refuted the account in the police facts sheet and stated that the incident only involved pushing.
The respondent’s SFIC at point 6 under the heading ‘Facts’ notes that a further incident was recorded in the police facts sheets which occurred on 27 December 2020, for which the Applicant was not charged, and which occurred at the victim CD’s house. The incident was described as follows “the victim was drinking and fell asleep on the lounge. She woke up to the Applicant performing cunnilingus on her. The Applicant had also taken pictures of herself performing sexual acts on the victim while she was asleep. The Applicant gave the victim a pill, and the victim felt like she was asleep for two days until 29 December 2020. Every time she woke up, the Applicant gave the victim another pill and she fell back asleep. No charges resulted from this incident.
The Tribunal noted at the outset of the review hearing that the description of the further incident was suggestive of serious offending by the Applicant and the Tribunal was at a loss to understand why the Applicant had not been charged with respect to this offending. The Tribunal noted that this had not been clarified in any of the material before it.
The Applicant advised the Tribunal that the information conveyed in the police facts sheet was wrong. The Applicant stated that she was in fact the victim of this ‘further incident’ that occurred on 27 December 2020 and that the described incident was perpetrated by CD. The Applicant was extremely upset in her recitation of the incident and advised that the incident had caused her distress and was a precursor to the incident that occurred in February 2021.
The Applicant stated that she had attended CD’s residence on 7 February 2021 to confront her about the December 2020 incident and that when she arrived at CD’s residence, she overheard CD engaged in a telephone conversation, gloating about taking naked photographs of the Applicant on her mobile phone and describing the content of the photos. The conversation exacerbated conflict between the Applicant and CD. The Applicant stated that she felt violated by the December 2020 incident and that her privacy had been breached. The evidence in the police facts sheet with respect to the Applicant seizing CD’s mobile phone, in the view of the Tribunal, corroborates the Applicant’s account of the December 2020 incident. The Applicant stated that an argument ensued between herself and CD and that the pushing that occurred was engaged in for the purposes of self-defence.
The Tribunal has had regard to the evidence from Harry Lollback of Kells Lawyers provided to the Department on 22 July 2021 in respect of the Applicant’s first citizenship application,
which indicated that they were acting for the Applicant in the Local Court proceedings pertaining to the February 2021 assault which notes “Ms Garcia denies the allegation against her, and we have entered a plea of not guilty in accordance with her instructions”.
The Tribunal does not have evidence with respect to what transpired between the not guilty plea being entered and the ultimate outcome of the proceedings, and what facts were agreed to in any plea of mitigation, however, the evidence is clear that the Magistrate deemed it appropriate in the circumstances of the case to not record a criminal conviction with respect to the offending and to impose both an ADVO and a CCO for finite periods.
The Tribunal enquired of the Applicant whether she had pursued the December 2020 incident with the police and she advised that she decided not to as she “just wanted to get on with her life”.
The recitation of the December 2020 incident is referred to in the Respondent’s tender bundle at page 35 (the police facts sheet). The Respondent’s representative conceded that, based on the Applicant’s sworn evidence to the Tribunal with respect to this incident as described in the police facts sheet, it was clearly erroneous, and that the Applicant had been wrongly described as the POI (person of interest) and that CD had been wrongly described as the victim. The Respondent conceded that reference to the further incident recorded in the case notes in December 2020 was not applicable to the Applicant and that the point of confusion was the police facts sheet descriptors applied to the wrong persons.
Accordingly, no regard has been had to this incident with respect to the Tribunal’s consideration of the Applicant’s character.
FIRST CITIZENSHIP APPLICATION
Evidence before the Tribunal indicates that the Applicant first applied for Australian citizenship by conferral on 16 February 2021. That application was refused on 27 July 2021, as the delegate found that they were prohibited from approving the application under s.24(6) of the Act as the Applicant had matters outstanding before a court.
In this application for citizenship, a letter was sent to the Applicant by the Department dated 15 July 2021 which noted that police checks indicated that the Applicant had proceedings
pending in the Local Court that were due to be heard on 13 October 2021. The Applicant responded with the letter from Harry Lollback, of Kells Lawyers, confirming that they were acting for the Applicant in the Local Court matter and that a plea of not guilty had been entered with a hearing date set down for 13 October 2021. This, in the view of the Tribunal, constitutes a clear acknowledgement of the existence of a matter in the criminal justice system by the Applicant with respect to the first citizenship application. There was no attempt by the Applicant in this application to conceal the offending.
SECOND CITIZENSHIP APPLICATION
The Applicant made a further application for Australian citizenship by conferral on 25 April 2023. It is this application and the resultant decision that is the subject of this review.
With respect to this application, on 9 August 2023, the Department wrote to the Applicant and invited her to comment on information as to whether she was of good character. In the letter, the Applicant was informed that there was information before the Department which indicated that the Applicant may not be of good character for the purposes of her citizenship application. Details of the specific information was provided to the Applicant by the Department in this letter. That information indicated that the Applicant had been convicted in the Liverpool Local Court on 19 October 2021 with three counts of common assault in a domestic violence setting for which the Applicant was subject to a CCO for a period of 18 months commencing on 19 October 2021 and concluding on 18 April 2023.
The evidence before the Tribunal indicates that, on 9 August 2023, the Department received an initial response to its adverse information letter from the Applicant in which she advised that the case was revoked without conviction in November 2022, and she attached an advice of a court result released by the Local Court of New South Wales with respect to this on 4 November 2022. It is apparent the Applicant was referring here to the early revocation of the ADVO. It appears that the provision of this material provided by the Applicant was under the belief that it referenced the offending and sentencing by the Local Court in October 2021.
The Tribunal has not been able to ascertain, based on the attachment to this response, what was included by the Applicant in the attachment.
At hearing, the Applicant has maintained that she provided evidence of the CCO and the ADVO in response to the Departmental letter. Whether this had indeed been provided by the Applicant was a point of contention for the Respondent at hearing which the Respondent’s representative submitted impacted upon the Applicant’s credibility.
NATURAL JUSTICE LETTERS
The evidence before the Tribunal indicates that the Applicant was clearly put on notice about the need to provide evidence with respect to her criminal offending in response to the Departments natural justice letter in her first application for citizenship that she submitted on 16 February 2021.
The Applicant then received a decision record from the Department dated 27 July 2021 refusing her application for citizenship by conferral on the basis that she had proceedings for offences against an Australian law pending in the Local Court of New South Wales. The Applicant, through the provision of this decision record, would have been put on notice about the fact that her offending, and the pending court proceedings arising from this offending, was clearly before the Department.
The Applicant then submitted the application for citizenship by conferral that is the subject of this review on 25 April 2023 at which time the 2021 court proceeding had been finalised and the CCO had expired and the DVO had been revoked.
On 9 August 2023, the Applicant was sent a natural justice letter from the Department enclosing a ‘check results report’ pertaining to her criminal history. The check results document made reference to the Applicant’s common assault history dealt with by the Local Court on 19 October 2021 for which she was subject to a CCO for 18 months without conviction. The Applicant was asked to comment on her criminal history.
The evidence indicates that, in response to the letter, the Applicant provided an advice of a court result from the Local Court of New South Wales dated 4 November 2022, indicating that the ADVO made by the Local Court on 19 October 2021 had been revoked and that there had been “no breaches by consent of police”.
The Tribunal finds, having regard to the evidence before it, that the Applicant has not deliberately attempted to hide her criminal history. Indeed, the evidence indicates that, in the mind of the Applicant, the documents that she provided in response to the natural justice letter from the Department, with respect to her February 2021 citizenship application and her April 2023 citizenship application, was based on a belief that she had provided full disclosure with respect to the offending in 2021 and to its outcome.
Between 13 December 2023 and 22 December 2023, the Applicant provided the Department with additional information relating to her character including a personal statement, a number of character references and a certificate of appreciation from the company that she worked for. The delegate noted that “I am satisfied that the criminal history records and other information taken into consideration when assessing whether you are of good character are related to you”. The delegate went on to find in their decision record dated 17 January 2024 that “I am satisfied that you have been convicted of common assault (DV)-T2 which involves domestic violence”. The delegate went on to find that the Applicant had failed to clearly address her offences in detail and failed to demonstrate remorse for her offending conduct in the past.
ISSUE:
The only issue for the Tribunal to determine in this matter is whether the Tribunal can be satisfied that the Applicant is of good character for the purposes of section 21(2)(h) of the Act.
LAW & POLICY:
The relevant legislation and policy was summarised in the Respondent’s statement of Facts, Issues and Contentions under the heading “Legislative Framework” and the Tribunal adopts that summary as part of this decision.
EVIDENCE OF THE APPLICANT
In support of her application for citizenship by conferral, the Applicant provided a statutory declaration to the Department dated 21 December 2023. The Applicant, in her statutory declaration, claims that she does not have any criminal convictions nor criminal charges pending. The Applicant notes that she was the subject of an apprehended violence order
made by the Liverpool Local Court on 19 October 2021. The Applicant stated that this apprehended domestic violence order was revoked 2 months before its expiration in November 2022, and that there had been no breaches of the order. The Applicant stated that, after the imposition of the apprehended violence order, she undertook 10 sessions with a psychologist through Innerwest Psychology, to help her overcome trauma. The Applicant stated that this trauma emanated from her interactions with CD in December 2020.
The Applicant noted in her statutory declaration that this was her second application for citizenship by conferral. The Applicant stated that since her arrival in Australia she had been following the rules and regulations of Australia along with respecting Australia’s cultural heritage. The Applicant stated that she had been contributing her skills and knowledge in the education sector by ensuring a better quality of international education agents who assist overseas students engaging in education in Australia and hence contribute to the Australian economy.
The Applicant also provided a statement dated 6 February 2024. In her statement, the Applicant expresses sincere regret for the domestic violence issue that gave rise to an apprehended violence order. The Applicant stated that she was extremely remorseful for her actions. The Applicant noted that she was made the subject of a conditional release order without conviction for 18 months and that, because she did not breach that order, the order was revoked after 18 months. The Applicant claims that she did not have a criminal conviction. The Applicant claims that she had taken significant steps towards personal growth and rehabilitation including obtaining professional help from a psychologist. The Applicant stated that she was fully committed to upholding Australian values and laws and that she sincerely hoped to become an Australian citizen by conferral.
The Tribunal also received a statement from the Applicant which was filed on 6 August 2024 which has been duly considered.
The Applicant states that the purpose of the statement was to give an account of her life since 2021.
The Applicant notes that, after the incident with CD in December 2020 and several months after the imposition of the AVDO, she applied for a revocation of the court order which was supported by her long-time live-in partner at the time HC.
The Applicant stated that she ended her relationship with HC. After the cessation of this relationship, the Applicant stated that she kept herself busy working on weekdays and engaging in basketball and badminton on the weekends and sometimes going on bush walks or jogging on the beach. The Applicant stated that she has continued to take medication for depression and anxiety (panic attacks) namely mirtazapine. This fact has been confirmed in a report from the Applicant’s general practitioner Dr Mark Sheps dated 27 March 2024.
The Applicant stated that in February 2023, she met Reilyn Olive Enriquez a divorcee with a now 12-year-old child. The Applicant stated that they commenced a relationship as friends and that she had discussed her past with Ms Enriquez pertaining to the incident with CD. At hearing Ms Enrique, when questioned by Ms Nguyen, stated that she was aware of the Applicant’s engagement with the criminal justice system with respect to CD and that it had arisen out of an altercation that involved pushing. She stated that there had been a fight between the Applicant and CD and that they attended the police station wherein CD filed a complaint against the Applicant and that the matter had been dismissed by the court. Ms Nguyen stated that the Applicant was sentenced with respect to the incident and Ms Enriquez stated that she was not cognisant of this. Ms Enriquez stated that she could not believe the Applicant had been involved in the criminal justice system as she was a very sweet person and that she was shocked to hear it. The Applicant stated that over time her relationship with Ms Enriquez has grown and is a relationship based on respect, understanding and love. The Applicant stated that she has embraced an opportunity to build a relationship with Ms Enriquez’s child.
Ms Enrique, in her evidence to the Tribunal, stated that she and the Applicant had been in a relationship of almost 2 years duration based on mutual respect and that the Applicant had a solid relationship with her 12-year-old daughter. The relationship had now progressed to the stage that the couple were looking to purchase an apartment together.
The Applicant stated that after working for 10 months in her occupation she was promoted to a senior role and will be travelling to Indonesia and the Philippines promoting education
campuses in Sydney, Melbourne, Brisbane, and Perth and establishing relationships with international education agents. The objective of the role is the recruitment of overseas students from South-East Asia.
The Applicant stated that throughout her career and her personal life she has always strived to uphold values of integrity and kindness and fairness. The Applicant stated that she made a mistake in her life and sincerely regrets her behaviour with respect to CD. The Applicant stated that she believes that she deserves to be an Australian citizen and that she believes that she can make a positive impact going forward whether it’s in respect of work, relationships, family or in the community.
The Applicant provided a range of character references to the Tribunal which attest to her character. The Tribunal has had regard to these character references.
The Applicant provided a character reference from Ms Reilyn Beninati. The reference is dated 22 December 2023. The referee describes the Applicant as being “a kind person who values her family, friends, and career. She is a professional who is a great model to younger generations and Australia is very lucky to have her. She is dependable, genuine, and trustworthy. She is very skilled and knowledgeable had very humble and still strives to be an even better person.” The referee endorses the Applicant’s application for Australian citizenship but makes no reference to the Applicant’s offending.
The Respondent at hearing suggested that limited weight should be apportioned to the references with respect to the Applicant’s character due to the fact that the referees were not cognisant of the Applicant’s offending background. The Applicant in response stated that she reserved the right to disclose her past offending conduct and had chosen to keep it private.
RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS (SFIC)
The Tribunal has had regard to the Respondents SFIC dated 26 November 2024. The submission makes reference to the Applicant’s immigration history noting that she arrived in Australia in August 2004 as the holder of the family sponsored visitor visa and obtained permanent residence in January 2020 via a partner visa application.
The submission notes that on 19 October 2021, the Applicant was found guilty of three counts of common assault (DV) and sentenced to a conditional release order (CRO) of 18 months duration without a conviction being recorded. The Applicant was also subject to an apprehended domestic violence order (ADVO) on 19 October 2021 that was revoked on 1 November 2022.
The submission makes reference to the Applicant’s offending which occurred on 7 February 2021. The submission makes reference to an incident that occurred on 27 December 2020 for which the Applicant was not charged (see SFIC) at point 6. As noted, it became apparent in the early stages of the review hearing that this incident is not referable to the Applicant, a fact conceded by the Respondent and hence no regard has been had to it by the Tribunal.
The submission notes that this is the Applicant’s second application for Australian citizenship by conferral and that the first application lodged on 16 February 2021 was refused on 27 July 2021 as the Applicant had outstanding matters before a court.
The submission notes that the phrase ‘good character’ is not defined in the Act and was intended to be used in a broad way, encompassing a wide array of events and conduct in connection with the person.1 In one sense, the phrase refers to the ‘enduring moral qualities’ of a person and requires consideration of an aggregation of qualities.2 Despite the fact that a person may possess many good qualities, those qualities can be outweighed in the assessment of good character by a single adverse incident if it is of sufficient weight and seriousness.”3
The submission notes that CPI 15 provides that crimes involving domestic violence come within the ambit of serious offences. The submission also notes that despite the Minister’s position that the Tribunal cannot rely on an Applicant’s finding of guilt without conviction that various decisions of the AAT have found to the contrary with the AAT finding that the Tribunal is permitted to take into account an assessment of the totality of an Applicant’s conduct with respect to offences for which no conviction was recorded against the Applicant.
1 Relying on Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128 at [60] (per Perram, Yates and Mortimer JJ).
2 Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 – 432 (per Lee J).
3 Re Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7] (Deputy President McDonald).
The submission notes that the Applicant has engaged in violent conduct in the context of a domestic relationship and that this should be viewed seriously.
The submission posits that another matter which weighs against a finding that the Applicant is a good character is the Applicant’s failure to declare information in her criminal history check when applying for Australian citizenship in 2023.
In addition to these factors the submission makes reference to mitigating circumstances relevant to the conduct which includes whether a person has accepted responsibility or indeed shown remorse for their conduct. The submission notes that the Applicant has failed to display any remorse or insight into her conduct. With respect to the Applicant attending 10 sessions with a psychologist, the submission notes that no evidence has been provided regarding whether these sessions specifically addressed the Applicant’s domestic violence conduct. The submission notes that the Minister accepts that the Applicant’s full-time employment weighs in favour of approving her citizenship application.
The Respondent at hearing impugned the Applicant’s credibility on the basis that she had provided inconsistent accounts with respect to provision of information pertaining to her criminal history to the Department. For the reasons outlined in this decision record, the Tribunal finds that the Applicant has not deliberately attempted to obfuscate her criminal offending. Indeed, the Applicant was made aware of the need to provide evidence with respect to this history in her February 2021 and April 2023 applications for citizenship when she was provided with natural justice letters asking her to do so one of which included her criminal check results history at folio 61 of the T documents.
CONSIDERATION
As noted, there is only one issue before the Tribunal, and that is whether the Tribunal can be positively satisfied that the Applicant is of good character for the purposes of section 21(2)(h) of the Citizenship Act 2007.
Good character is not defined in the legislation, but it has been considered by the courts on numerous occasions, including by the Federal Court in the case of BOY19 v the Minister for Immigration and Border Protection.4 In that case, O’Bryan J stated that:
The following principles can be distilled from the authorities about the meaning of the expression ‘good character’ in section 21(2) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame, or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of the person. Second, the expression does not have a fixed or precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory license, or whether a decision is in the public interest, the expression imports a discretionary value judgement to be made by reference to undefined factual matters confined only to the subject matters, scope, and purpose of the statutory provisions. Third, and as a corollary of the second point, the expression requires a judgement as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.5
In considering the question of good character, the Tribunal is guided by part 4 of the Citizenship Policy 15, which states that the Tribunal should consider factors such as the Applicant’s family life, stable home environment, being responsibly employed and paying taxes, together with any community work that is being undertaken.
The Tribunal must make a decision as part of an overall assessment, which includes taking into account an Applicant’s offending. However, it also must include an assessment of the positive aspects of the Applicant’s life. The information must be weighed to enable the Tribunal to make an assessment as to whether it is able to reach an affirmative belief that the Applicant is of good character.
The Respondent has argued before the Tribunal that the Applicant was not of good character because of the nature of her offending (domestic violence), that she exhibited little insight with respect to the impact of her offending upon the victim, and that she had not engaged actively in rehabilitation to address her offending behaviour.
The Respondent has further argued that the Applicant’s credibility is impugned because of the inconsistent responses given at hearing with respect to what she had provided to the
4 [2019] FCA 574 (BOY19).
5 BOY19, [51].
Department regarding her offending and associated court outcomes and that she deliberately concealed her offending from the Department.
The Tribunal finds that this is not the case. As discussed, the Applicant was put on notice on 15 July 2021, in her first application for citizenship, that the Department was aware of pending criminal proceedings in NSW. The Applicant replied to this notice through her criminal lawyers on 22 July 2021 confirming the existence of an ongoing Local Court matter that had a hearing date at that time of 13 October 2021.
In the current application, the Applicant was sent a natural justice letter on 9 August 2023 advising a criminal history check had been run and inviting the Applicant to provide a response to this and to provide any context with respect to the offending that occurred.
The Tribunal is of the view, based on the evidence before it, that the Applicant did her best to provide a response to the Department and that in her mind the documents that she provided with the associated attachments were representative of her interaction with the criminal justice system.
The Tribunal notes that there is no place for violence of any nature in Australian society. It became apparent during the course of the review hearing that the incident that led to the Applicants engagement with the criminal justice system in February 2021 had been precipitated by the actions of CD on 27 December 2020. At this time the Applicant alleges that CD drugged her and performed sexual acts upon her without her consent and took photographs of her naked without her consent and shared and discussed this with others, a serious breach of trust. The facts, as alleged by the Applicant, are captured in the police facts sheets at page 35 of the Respondent’s tender bundle. The Applicant has, to date, decided not to pursue this matter through the criminal justice system saying at hearing that she “just wants to get on with her life”.
The Tribunal has had regard to the medical evidence provided to it at review and discussed at hearing which indicates that the Applicant has suffered depression and panic attacks since 2018 for which she has been treated with an anti-depressant mirtazapine since 2018.
The evidence as discussed indicates that the Applicant had initially entered a plea of not guilty to the offending of February 2021. The Tribunal does not have evidence before it as
to what transpired at the Local Court that led to 3 counts of common assault in a domestic violence setting being upheld and a CCO and ADVO being imposed and as stated what facts were agreed to in any plea of mitigation. The Tribunal however notes that the Magistrate, having regard to the circumstances of the case, decided not to impose convictions for the offending.
The evidence indicates that the Applicant complied with the terms of her CCO, and the ADVO and that the ADVO was revoked at an earlier point in time by the Local Court and there were no breaches of the conditions applicable to the ADVO.
The Applicant has engaged with a psychologist in respect of the incident of December 2020 and her interaction with the criminal justice system in February 2021.
The Tribunal notes that prior to the offending in February 2021 the Applicant had no criminal history in the Philippines and in Australia.
The Tribunal notes that almost 4 years have passed since the offending behaviour was engaged in and there is no evidence of any interaction with the criminal justice system since the February 2021 offending.
The evidence indicates that the Applicant is gainfully employed and is contributing to the Australian economy in her employment which involves engaging South-East Asian students to study in Australia.
The Applicant is in a de facto relationship of almost 2 years duration and her partner speaks highly of her character and her contribution to their relationship as well as the close bonds the Applicant has formed with her partner’s 12-year-old daughter.
The Tribunal notes that, in step with societal and governmental expectations, domestic violence offending falls within the ambit of serious offending. The Tribunal has also had regard to the circumstances in which this offending occurred, precipitated by what the Applicant has alleged as an egregious incident in December 2020. It does not excuse the offending but provides context to its occurrence. The offending was a one off and not indicative of a pattern of offending.
The Tribunal, as has been noted, also finds that a Magistrate, having regard to all of the facts before them with respect to the offending, decided not to impose criminal convictions upon the Applicant.
The Tribunal, in reaching its decision with respect to the character of the Applicant, is fortified by the fact that the Applicant complied with the terms of her CCO and the ADVO.
Having regard to all of these factors, the Tribunal finds the Applicant is of good character.
DECISION:
The correct and preferable decision is that the reviewable decision is set aside, and remitted to the Respondent with the direction that the Applicant meets the character requirements of section 21(2)(h) of the Citizenship Act 2007 (Cth)
Date(s)ofhearing: 5 December 2024 Applicant:
In person
CounselfortheRespondent:
Ms C Nguyen
SolicitorsfortheRespondent:
Ms G Ng, Australian Government Solicitors
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