GVJJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 3473
•29 September 2021
GVJJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3473 (29 September 2021)
Division:GENERAL DIVISION
File Number: 2020/4966
Re:GVJJ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date:29 September 2021
Place:Brisbane
The Reviewable Decision, dated 6 August 2020, is affirmed.
...............[SGD]............
Member R Maguire
CATCHWORDS
CITIZENSHIP – citizenship by conferral – character test – whether Applicant is of good character – prior traffic offences – convictions not recorded – wants to sponsor partner – Applicant not of good character – Decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Community Protection (Offender Reporting) Act 2004 (WA)
CASES
Bartlett and Minister for Immigration and Border Protection
[2017] AATA 1561
Drake v Minister for Immigration and Ethnic Affairs(1979) 46 FLR 409
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634SECONDARY MATERIALS
Australian Citizenship Policy
REASONS FOR DECISION
Member R Maguire
29 September 2021
INTRODUCTION
The Applicant seeks the review of a decision[1] by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Department) made on 6 August 2020 to refuse the Applicant’s application for citizenship by conferral under section 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act) on the ground that the Applicant did not meet section 21(2)(h) of the Act which requires the Minister to be satisfied that the Applicant is of good character at the ‘time of the Minister’s decision on the application’.
[1] Exhibit 1, T Documents T2, pages 13 – 23, Notification of refusal of an application for Australian citizenship by conferral.
ISSUE FOR DETERMINATION
The issue for determination in this application, is whether the Applicant is a person of good character for the purposes of section 21(2)(h) of the Act at the time of this decision.
THE LAW
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Section 24(1) of the Act requires that if a person makes an application under section 21, the Minister (or a person delegated by the Minister) must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 21(2) sets out the general eligibility criteria for an applicant who is 18 years or older, and a permanent resident. Section 21(2)(h) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the applicant ‘is of good character at the time of the Minister’s decision’.
Good Character
The term ‘good character’ is not defined in the Act, however, guidance for decision-makers exists in the Australian Citizenship Policy Statement[2] and the Citizenship Procedural Instructions (CPIs)[3] in particular CPI 15 which together, for present purposes represent government policy (the policy).
[2] Annexure A to the Respondent's Statement of Facts Issues and Contentions (SFIC).
[3] Exhibit 1, T Documents T3, pages 96 – 120, Citizenship Procedural Instruction 15.
CPI 15 states the following at paragraph 4.1:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
CPI 15 provides at paragraph 4.4, that is a general proposition, a person of good character would:
· respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds, pay debts to the Commonwealth);
·not practice deception or fraud in dealings with the Australian Government, or other organisations, for example
o intentionally providing false personal information (such as fraudulent work experience or qualification documents) or
o other material deception during visa and citizenship application;
o evading immigration control of the border or living unlawfully in the community after the visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
o knowingly entering into a bogus marriage or pretending to be a defector partner of another person;
o concealing criminal conviction;
o fraud against the Commonwealth such as tax fraud or Centrelink fraud;
o giving false names and/or addresses to the police;
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through the conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink-driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in antisocial or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide;
·not be involved in terrorist organisations or acts of terrorism overseas in Australia.
The principles set out above are to be considered in the light of the facts of the particular case; and should not be applied rigidly or inflexibly. It is also necessary to consider information provided by the applicant regarding his or her family life, for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrongdoing and the time that has elapsed since the wrongdoing. Some factors may support an adverse finding, while others may support a positive finding about a person’s character.
Factors to be taken into account under paragraph 4.7 of CPI 15 include instances where an applicant has a criminal record including the commission of a “serious” offence, examples of which are offered:
·crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death);
·war crimes, crimes against humanity, genocide;
·crimes against children;
·drug trafficking (including importation and supply);
·people smuggling;
·fraud (including identity fraud);
·harassment or stalking;
·terrorist activity;
·extortion;
·illegal pornography, including child pornography;
·breaches of immigration law, including those that resulted in removal or deportation from Australia or another country;
·offences incurring prison sentences of 12 months or more.
In the Full Federal Court case of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; at 431 – 432 Lee J stated in his separate reasons:
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 the ordinary sense, namely, a reference to the enduring moral qualities of a person, and not 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 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.
In that case, the Court was constituted by Davies, Lee, and RD Nicholson JJ. Each of the judges gave separate reasons, concurring in the result. Nicholson J expressly concurred with the reasons of Davies J, and neither Davies J, nor Nicholson J expressed concurrence with the judgement of Lee J.
The question whether a person is or is not ’of good character’ is primarily an issue of fact.[4] Davies J remarked (at 427 – 428):
The drawing of a conclusion by a decision maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgement. There are no precise parameters which distinguish “good character” from “bad character”. Although in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision…
[4] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 424 per Davies J (with whom RD Nicholson J concurred).
In deciding that fact, the Tribunal ’was entitled to be guided by any general relevant government policy which was not inconsistent with the provisions or the objects of the [relevant] act’.[5]
[5] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420 per Bowen CJ and Deane J.
In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Federal Court[6] said; at 197:
The words “good character” in this section should, as Lee J pointed out in Irving, (at 431 – 432), be understood as “a reference to the enduring moral qualities of a person”. Conduct may make those qualities visible, but it should never be confused with them. In each case having had regard to the conduct, the Minister or other decision maker must still come to a further conclusion, whether or not to be satisfied that the person is not of good character.
[6] Per Burchett, Branson, and Tamberlin JJ.
The decision of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 makes clear that in considering the application of policy, the Tribunal must not lose sight of its duty. Brennan J said at 642:
The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.
Neither party has submitted that there are cogent reasons so as to warrant a departure from the Policy in this review. Nevertheless, the Tribunal bears in mind that the Policy is not a binding checklist, and that decision-makers need to look at the merits of each case.
BACKGROUND
The Applicant is a 33-year-old male citizen of Sri Lanka, who first arrived in Australia on 28 June 2009 as an unauthorised maritime arrival. He was granted a permanent residency visa via a Protection (subclass 866) visa on 23 November 2009. He is currently the holder of a Resident Return (subclass 155) visa issued on 12 November 2018[7].
[7] Exhibit 1, T Documents, T2, page 17.
On 23 April 2018 the Applicant applied for Australian citizenship[8], and in doing so, provided a signed declaration dated 19 April 2018 in which he answered “no” at item 39(a) to the question:
Have you been convicted of, or found guilty, of ANY offences which went to court, (include all traffic offences which went to court, including offences declared in your permanent residence application and any “spent” convictions)?
[8] Exhibit 1, T Documents, T4, page 136.
During the process of the Applicant’s visa application a Nationally Coordinated Criminal History Check (NCCHC) was obtained by the Department which disclosed the following offences by the Applicant[9]:
[9] Exhibit 1, T Documents, T2, page 19;T8 pages 167-168.
Court
Date
OFFENCE
Result
Ipswich District Court
09/10/2017
[DFVPA 2012] 177 (2)(A) CONTRAVENTION OF DOMESTICE VIOLENCE ORDER (AGGRAVATED OFFENCE) ON 29/02/2016 BCS 1601768310 AS[GVJJ]
No Conviction Recorded
Fined $300 Time To Pay 28d
Ipswich District Court
03/10/2017
CC352(1)(A) SEXUAL ASSAULTS (ON 24/02/2016) ABOVE REFERS TO INDICTMENT NO:402/17 AS [GVJJ]
No Conviction Recorded Community Service Time:100 H To Be Completed Within 12 Mo Concurrent
Southport Magistrates Court
05/07/2017
CCA 100 ENTERING OR REMAINING IN A CASINO CONTRARY TO ORDER OR DIRECTION (ON 04/06/2016) BCS 1602323869
No Conviction Recorded Fined:$100 Time To Pay 28d
Brisbane Magistrates Court
10/05/2016
[BA] 29(1) BREACH OF BAIL CONDITION (ON 11/04/2016 BCS 1601521497 AS[GVJJ]
No Conviction Recorded Fined $400 Time To Pay 28d
Additionally, the Applicant has relevant history extracted from the Respondent’s SFIC:
Date
Event
Source
9 July 2012
The Applicant committed the offence 'Exceed speed limit in speed zone by more than 20 km/h not more than 30 km/h', for which he received four demerit points and a fine of $330.
Enclosure C to the Applicant’s 7 December witness statement (Traffic Record)
7 October 2012
The Applicant committed the offence 'Exceed speed limit in speed zone by at least 13 km/h not more than 20 km/h', for which he received three demerit points.
A demerit points warning letter was posted to the Applicant.
Traffic Record
13 January 2013
The Applicant committed the offence 'Exceed speed limit in speed zone by less than 13 km/h', for which he received one demerit point and a fine of $146.
Traffic Record
25 April 2013
The Applicant committed the offence 'Exceed speed limit in speed zone by less than 13 km/h', for which he received one demerit point and a fine of $146.
Traffic Record
9 March 2014
The Applicant committed the offence 'Exceed speed limit in speed zone by less than 13 km/h', for which he received one demerit point and a fine of $146.
Traffic Record
16 August 2014
The Applicant committed the offence 'Exceed speed limit in speed zone by less than 13 km/h', for which he received one demerit point and a fine of $151.
Traffic Record
5 December 2014
The Applicant committed the offence 'Fail to give way to vehicle at intersection with 'stop' sign', for which he received three demerit points and a fine of $341.
Traffic Record
2 February 2015
A letter was sent to the Applicant regarding his accumulation of demerit points.
Traffic Record
9 February 2015
The Applicant agreed to a good driving behaviour period of 12 months.
Traffic Record
10 May 2016
The Applicant appeared in the Brisbane Magistrates Court charged with 'Breach of bail condition (on 11/04/1016)'. No conviction was recorded, and the Applicant was ordered to pay a fine of $400.
T8, p 168
5 July 2016
The Applicant appeared in the Southport Magistrates Court charged with 'Entering or remaining in casino contrary to order or direction (on 04/06/2016)'. No conviction was recorded, and the Applicant was ordered to pay a fine of $100.
T8, p 168
10 November
2016
The Applicant committed the offence 'Exceed speed limit in speed zone by less than 13 km/h', for which he received one demerit point and a fine of $162.
Traffic Record
15 March 2017
The Applicant committed the offence 'Exceed speed limit in speed zone by less than 13 km/h', for which he received one demerit point and a fine of $162.
Traffic Record
26 July 2017
The Applicant committed the offence 'Exceed speed limit in speed zone by less than 13 km/h', for which he received one demerit point and a fine of $168.
Traffic Record
3 October 2017
The Applicant appeared in the Ipswich District Court charged with 'Sexual assaults (on 24/02/2016)'. No conviction was recorded, and the Applicant was ordered to complete 100 hours of community service within 12 months.
T8, p 168
9 October 2017
The Applicant appeared in the Ipswich Magistrates Court charged with 'Contravention of domestic violence order (aggravated offence) (on 29/02/2016)'. No conviction was recorded, and the Applicant was ordered to pay a fine of $300.
T8, p 168
17 January 2019
The Applicant committed the offence 'Exceed speed limit in speed zone by less than 13 km/h', for which he received one demerit point and a fine of $168.
Traffic Record
26 March 2020
The Applicant committed the offence 'Driver use hand held mobile phone', for which he received four demerit points and a fine of $1,000.
Traffic Record
On 2 June 2020, the Department wrote to the Applicant enclosing a copy of the NCCHC, and inviting comment on adverse information contained in it[10]. Amongst other things, the letter invited the Applicant to advise if he had made any attempts to inform the Department of the offences listed.
[10] Exhibit 1, T Documents T8, pages 159 -162.
The Applicant requested extension time to respond, and was given until 4 August 2020. He responded on 27 July 2020 and provided:
a.personal statement in the form of a Commonwealth Statutory Declaration dated 23 July 2020[11];
b.character reference from Rev Fr Pancras Jordan in the form of a Commonwealth Statutory Declaration dated 6 June 2020[12];
c.character reference from Mr Greg Robson in the form of a Commonwealth Statutory Declaration dated 8 June 2020[13];
d.character reference from Mr Suresh Lakshman in the form of a Commonwealth Statutory Declaration dated 11 June 2020[14];
e.verdict and Judgement Record & Transcript of proceedings Ipswich Magistrates Court[15];
f.verdict and Judgement Record & Transcript of proceedings Southport Magistrates Court[16];
g.verdict and Judgement Record & Transcript of proceedings Brisbane Magistrates Court[17]; and
h.transcript of District Court of Queensland before Judge Horneman-Wren.[18]
[11] Exhibit 1, T Documents, T11, pages 196 – 198.
[12] Ibid pages 191 – 192.
[13] Ibid pages 193 – 195.
[14] Ibid page 188.
[15] Ibid pages 184 – 187.
[16] Ibid pages 178 – 179.
[17] Ibid pages 176 – 177.
[18] Ibid pages 180 – 183.
In his Statutory Declaration, the Applicant did not respond to the enquiry as to whether he had made any attempts to inform the Department of the offences listed.
The Delegate considered the material provided by the Applicant and decided on 6 August 2020 that the Applicant did not satisfy the criteria of paragraph 21(2)(h) of the Act concerning good character.
On 17 August 2020 the Applicant made the present application to this Tribunal.
The Tribunal has had regard for the application made by the Applicant, together with the documentation submitted by him.
The Tribunal notes that at item 40 of his application, the Applicant consented to the conducting of a National Police check in relation to his application. At item 52 of the application, the Applicant declared that information had supplied in the form was complete, truthful and correct in every detail. Importantly, item 52 occurred immediately under the following heading:
Part M – Declaration
WARNING: It is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application.
The Tribunal notes that an offence under section 50 referred to above attracts a penalty of up to 12 months imprisonment.
In his statutory declaration dated 23 July 2020[19] the Applicant stated that he appeared before the Magistrates Court at Southport in Queensland on 5 July 2016 in respect of an offence for breaching a Domestic Violence Order. This statement is not consistent with the transcript of proceedings of the Southport Magistrates Court of Tuesday, 5 July 2016, which refers only in very brief terms to a charge of entering or remaining in a casino contrary to an order or direction.[20] The transcript of the Ipswich Magistrates Court of 9 October 2017 deals with a breach of a temporary protection order, where the Applicant made several attempts to contact the aggrieved party knowing that he wasn’t allowed to. The matter was dealt with by a small fine and no conviction was recorded.[21]
[19] Exhibit 1, T Documents, T11 pages 196 – 200.
[20] Ibid pages 178 – 179.
[21] Ibid pages 184 – 187.
He also acknowledged that on 3 October 2017 in the Ipswich District Court he pleaded guilty to a charge of sexual assault which replaced 3 other charges which he said were false and were discontinued by the prosecution. The Applicant stated:[22]
I pleaded guilty to touching my girlfriend outside her dress in the pubic area without her consent. This charge replaced three other charges which were false and were discontinued by the prosecution. I did not injure her in any way. I was ordered to complete 100 hours community service.
[22] Ibid, T2, page 20.
It is clear from the sentencing remarks of Judge Horneman-Wren[23] that the sexual assault charge was in respect of a woman who was the mother of the Applicant’s child, and with whom he continued to have occasional sexual intercourse. The Applicant touched the complainant in her pubic area over her clothes but without her consent, and this was the sexual assault. The judge described the assault as “isolated and brief and occurred in the context of the relationship I’ve already described.” The judge observed that “although this was a sexual assault at the lower end of the range, being a brief touching and over the clothes, it was nonetheless against a woman well known to you in her own home.” In sentencing the Applicant to perform 100 hours of community service, the judge referred to his “otherwise good character” and said that recording a conviction would be likely to have an economic or social impact disproportionate to the criminality of the offence, and would risk his prospects of rehabilitation which otherwise appeared good.
[23] Ibid, T11, page 181.
The Applicant provided a further statement dated 7 December 2020[24]. He described his work history since coming to Australia, and his relationship with the woman Ms N who is the mother of his son and was the victim of the sexual assault he committed. He said his breach of a bail charge arose while he was on bail regarding a charge which was later dropped. He said he had been ordered not to contact her. He further stated[25]:
I recall I was required to report to the police regularly until the matter was completed and I was also ordered not to telephone [Ms N]. On one occasion I was late to report (after I had notified the police in advance, and was told it was okay), but the breach was referred to court. On another occasion I phoned [Ms N]. I was fined $300 and $400 for the breaches.
[24] Exhibit 3.
[25] Exhibit 3, page 2.
The Applicant’s counsel told the court[26]:
So he’s made an attempt to contact her, knowing that he wasn’t allowed to, to find out what’s going on. She hasn’t answered on 2 occasions and simply hung up on the third. So there is no bad behaviour and there’s been no further breaches since.
[26] Exhibit 1, T Documents, T11, page 186, lines 38 – 40.
Regarding his charge of entering a casino contrary to an order, the Applicant said that he had been given an order not to enter the Brisbane casino as a result of “trying to place a late bet after the betting had closed”[27]. He was later told that he was temporarily suspended and understood the suspension only applied to the Brisbane casino and nowhere else. He travelled to Jupiter’s casino on the Gold Coast and was subsequently fined $100 for breaching the Brisbane order.
[27] Exhibit 3, page 2.
Regarding his driving record, the Applicant stated at paragraph 10 of his statement:
10. Driving: I have held a driving license since 2012, during which I incurred a number of driving infringements in the period 2012 – 2020. These were mainly due to the fact that I was doing a lot of travelling in my cleaning and delivery work.
At paragraph 11 of his statement, the Applicant gave evidence of attempts at self-rehabilitation, but nothing further. He said:
11. Rehabilitation: I try to be a good citizen. I help my friends when they need assistance, such as helping them to move premises; I attend my local Temple; I try to and ensure I do not commit criminal offences and to work for the betterment of myself and my new country which I love.
At paragraph 12 of his statement, the Applicant cited a planned marriage is the reason he wished to become a citizen. He did so in the following terms:
12. Citizenship: I wish to become an Australian citizen. The reasons include my wish to be part of tis (sic) new country where I live and work, and also because I have a marriage proposal to marry a lady from a Sri Lanka who is living in Sri Lanka. I am reluctant to ask her to be my wife, unless I am an Australian citizen, as it might take several years for her to be allowed to come here because I initially arrived illegally by boat (Ministerial Direction 72). However if I am citizen the time it will take for her to be granted a visa will be much less. I intend to ask her to marry me so we can have a family together.
The Applicant also provided the Tribunal with a copy of his Queensland Government Traffic Record[28] as at 30 November 2020.
[28] Exhibit 5C.
Rev Fr Pancras Jordan, in his statutory declaration of 6 June 2020[29], stated that he had known the Applicant for the last 5 years, and was aware of his offences although he did not offer any detail in this regard. He expressed confidence that the Applicant was truly repentant, and had rehabilitated himself and had not committed any subsequent offences in the previous 3 years. He regarded the Applicant is a reformed man deserving of an opportunity to excel in the community and in his personal life.
[29] Exhibit 1, T Documents, T11, pages 191.
Rev Fr Pancras Jordan provided a further statement dated 8 December 2020[30] in which he elaborated on his dealings with the Applicant, and disclosed knowledge of the Applicant’s conviction for sexual assault, his remorse, and promises the Applicant has made to him regarding his future conduct.
[30] Exhibit 4.
Mr Greg Robson stated in his statutory declaration that he known the Applicant since April 2017[31]. He spoke positively of the Applicant’s professional and personal attitudes and work ethic. He said the Applicant had shown him a copy of his court appearances and summary of offences. He said that in his dealings with the Applicant, his conduct had been of the highest standard.
[31] Exhibit 1, T Documents, T11, pages 193 – 195.
Mr Suresh Lakshman in his statutory declaration dated 11 June 2020[32], said that he was the tax agent and accountant of the Applicant whom he had known and acted for since 2010. He said he was aware of the Applicant’s offending but gave no details. He said that as far as he was aware the Applicant had rehabilitated himself and was an extremely hard worker. He was always compliant with his tax affairs and had not committed any offences in the preceding 3 years. He expressed the view that the Applicant was suitable to become naturalised as an Australian citizen.
[32] Ibid pages 188 – 190.
Evidence at hearing
The hearing of this application took place on 15 and 16 June 2021 via video conference. The Applicant was represented by Mr Foster, and the Respondent was represented by Mr Duldig of Clayton Utz.
Mr Foster called the Applicant, who gave evidence via an interpreter and confirmed that he was born in Sri Lanka and arrived in Australia in 2009 on a date he could not remember. He left Sri Lanka because of problems in that country and to seek protection in Australia.
On arrival in Australia he went to Christmas Island and then Brisbane. He was released into the community, and he worked in a factory and then he established a commercial cleaning business for the whole of Queensland, but mainly in Brisbane and surrounding suburbs, which he has run for 6 years. The business provides a 7 day per week service depending on customer requirements.
In about 2013-2014, he met a young lady, named Ms N. There were some misunderstandings between them. They had a son named Child R, who is now six years old.
In February 2016, there was a misunderstanding which ended up in an argument, and then he touched her, and she complained to the police and the matter was referred to court. He pleaded guilty to a sexual assault offence, and he was ordered to perform 100 hours of community service, which he completed.
He later committed further offences trying to contact Ms N over the phone, and he pled guilty to a breach of a Domestic Violence Order and was given a small fine of $300 or $400, which he paid. He also failed to comply with a bail condition, as he missed a signing obligation owing to a work commitment. He rang and told the police that he was on the way, and was one hour late, and was referred to the court, and he was convicted and fined $400 which he paid.
There was another occasion when he went to a casino on the Gold Coast, after being banned from a casino in Brisbane for a period of months. He went to court at Southport and was fined $100 and paid it. His suspension is now lifted and he is free to go to casinos.
The Applicant said he had no outstanding matters before the courts at the moment.
The Applicant said he made the present application for citizenship in 2018. Question 39(a) asked if he had any convictions, and he answered no. He blamed this answer on difficulty filling out forms, and help he received from an unnamed friend. He claimed to have misunderstood the question, and that he thought it was about cases pending, and therefore answered no.
The Applicant said he has held a driver’s licence in Australia for about eight or nine years. He had speeding and other driving offences on his record. He blamed his offences on work commitments. He could not recall any matter going to court, only fines and letters to his home. The Applicant last saw his son Child R in November or December last year. He pays child support for him, but does not see the child’s mother. In his spare time he goes to the temple, and visits his friends.
He said he has applied for citizenship because it is quite some time since he came to Australia and back home a marriage proposal has been finalised, and he needs to be able to sponsor his intended wife’s travel. Other reasons for seeking citizenship are that he will be glad and happy to receive citizenship. After marrying, he proposes to live in Australia, and continue with his business. He proposes to respect the Australian way of life and the rules of Australia.
Under cross-examination, the Applicant said he is currently on a permanent resident visa which he has held since 2009. He did not have the 207 pages of the T Documents, so the Tribunal adjourned for ten minutes to enable the documents to be emailed to the Applicant.
The Applicant was referred to T8 page 167-168[33], a list of his offences in Australia contained in a Check Results Report from the Australian Criminal Intelligence Commission. He agreed he had been found guilty of all of the listed offences, and that no conviction was recorded but he was either fined or required to do community service.
[33] Exhibit 1, T Documents.
The Applicant was referred to attachment C of his statement, his three-page traffic record, and agreed that he had committed the listed offences. He said that he was fined for holding a phone at a stop sign. Asked why he had so many speeding fines, the Applicant said that he was on the road seven days a week, and sometimes he had to rush. He gave an assurance that it will not happen again in the future. His last speeding offence was January 2019, and his role in the company has changed to marketing since that time.
He admitted that speeding was incorrect and apologised for it. He was evasive when asked if he thought speeding was justified at the time. It was suggested to him that he deliberately broke the speed limit as it was a convenient thing to do in terms of his work. He said that he would not say that it was deliberate, and that he acted in an “accidental” manner due to being in a hurry. It was pointed out to him that this accidental speeding occurred over a period of six years from 2013-2019.
The Applicant agreed that the victim of the sexual assault had been his partner. Asked to describe the circumstances of the assault, the Applicant said that there was a misunderstanding. He said that he had a relationship with the lady and that they had had a misunderstanding over her phone calls to him which he had not answered. He later went to her place and she was annoyed that he had not answered. That night he stayed at her place and there was “some issue”. Whenever phone calls came in she would not answer, or would put the phone away or on silent mode. An argument arose and he took her phone to see who was calling her, and she complained about it to the police, and she also complained to the police that he had raped her because she was angry with him for having taken the phone. Asked how this explained the sexual assault charge to which he pleaded guilty, the Applicant said that nothing of that nature had happened and that she had complained after he had taken the phone away from her. He had touched the external part of her body, and it was categorised as a sexual assault. When asked to describe how he touched her he said he did not know how to describe the event. He was referred to the statement he made to the Tribunal. He said that she was his partner and he may have told her to calm down during an argument and he did not realise that it would turn around like this. It was put to him that touching the genital region of a person he was arguing with was unlikely to calm her down. He said that he could not clearly remember which part he touched, and did not know how to explain.
The Applicant was asked if he remembered which area of her body he had touched, as he had said in his statement that he had touched her pubic area. He said he could not exactly remember which part of the body he had touched, and in anger she complained to police that she had been raped. He did not have money to pursue the matter further. He said that nothing of that nature had happened.
Asked if he was now saying that he did not touch her at all, the Applicant said that he would not say that he did not touch her. He agreed in court that he had touched her body against her wishes.
Asked if he still accepted that he touched her on the pubic area without her consent, the Applicant gave a lengthy response in which he said that he had previously had sexual intercourse with her and had a child, and asked for direction as to the incident referred to.
The Applicant repeatedly failed to confirm what he had said in his statement to the Tribunal of 7 December 2020. He said he was not familiar with the pubic area of the body, and repeatedly answered questions with questions.
He said he explained “a series of accidents” to his lawyer. Asked if he accepted what his statement said regarding touching her in the pubic area, the Applicant was slow to respond, and said that the lawyer told him that the charge would be sexual assault and that he was not familiar with what the pubic area was.
Taken to a screen copy of his statement, and referred to the description of how he had touched Ms N. The Applicant said he would demonstrate the area of the body referred to, and at that point his camera ceased functioning, and he was not visible either to the Tribunal or counsel. The Tribunal adjourned to allow rectification of the problem. On resumption, there was video of the Applicant, but not audio. The matter was adjourned to continue the next day, Wednesday 16 June 2021, and the Tribunal issued a direction that he attend personally at the offices of the Tribunal at 10 am that day.
Upon resumption on 16 June 2021, the Applicant failed to appear as directed, and was contacted by video link, at which time the following exchange occurred:[34]
MEMBER: Thank you. [GVJJ], yesterday I issued a directive for you to attend in-person today, and you’re not here - why?
INTERPRETER: Are you referring to a video call - what exactly are you asking?
MEMBER: Mr Foster, I’m not - I issued a directive yesterday - a direction yesterday, and your client hasn’t complied with it. Now, I’m sure you’re well aware of the options that are available to me, for non-compliance with a direction. Okay. I’m not prepared to proceed with this hearing, and risk encountering the same problems that we encountered yesterday. Your client lives in Brisbane city. He was directed, lawfully, to appear here this morning, and he’s not here. How long would you like me to give him, to get into Brisbane? He lives approximately 30 or 40 minutes out of town, at best, I think, by bus.
MR FOSTER: I’ll get some instructions on that. Thank you, Member.
MEMBER: Thank you.
[34] Transcript of Proceedings dated 16 June 2021, page 37, lines 13 – 31.
The Tribunal stood the matter down until 11 am to allow him to comply with its direction issued the previous day. Following the Applicant’s arrival at the Tribunal, the following exchange occurred:[35]
[35] Transcript of Proceedings dated 16 June 2021, page 39 lines 27 – page 40 line 15.
MEMBER: Mr Foster, is there anything you’d like to place on the record before we continue?
MR FOSTER: No, Member. No.
MEMBER: Yes. Thank you very much. Mr Applicant, you were issued a directive - a direction to appear before me personally - yesterday. Why didn’t you?
INTERPRETER: Yes. I didn’t know that I had to turn up at 10 o’clock this morning. I was ready, with the video connection.
MEMBER: Yes, very well. Mr Duldig, do you have any submission you wish to make at this point?
MR DULDIG: Member, the applicant was clearly - was given a clear direction. In circumstances where he’s legally represented, I don’t think that the Tribunal should make any sort of specific order in relation to the non compliance, but obviously it will impact on the Tribunal’s assessment of the applicant’s willingness to respect Australian legal institutions, and that’s a matter for submission, as to his character in - that would be my approach.
MEMBER: Yes.
MR DULDIG: So, I would - just intend to deal with it in closing.
MEMBER: Yes, thanks very much, Mr Duldig. Now, I seem to recall you were in the process of cross-examining the applicant.
MR DULDIG: Yes, that’s right, Member.
MEMBER: Okay. Please continue.
It was suggested to the Applicant that the pubic area was a reference to the genital area, and that he pleaded guilty to touching his victim in that area outside her dress. He accepted this. Asked why his statement included a phrase he did not understand, he replied that he touched below the abdomen close to the genitals and thighs and hugging, those things in his capacity as a partner, and they were both like that. He said he did not imagine or believe that she would make this as a complaint. He had known her for a substantial period of time, and he is the father of one of her two children.
The following exchange occurred[36]
[36] Transcript of Proceedings dated 16 June 2021, page 43 lines 10 – page 45 line 3.
INTERPRETER: I admitted having touched the lady.
MR DULDIG: [GVJJ], you pleaded guilty to sexual assault. So, what I’m asking you is, do you still accept that you touched your victim, on the genital area, outside of her dress, without her consent? Which is what you pleaded guilty to.
INTERPRETER: No, I have touched with her consent. Now she has complained like this. Beyond that, I don’t know how to explain it in words.
…
MEMBER: Could you repeat that slowly, please, Mr Interpreter?
INTERPRETER: Yes. Though I touched with her consent, now she has complained - thereafter she has complained. Beyond that, I’m not able to explain my position in words.
MR DULDIG: [GVJJ], you had a lawyer, at the time, when you pleaded guilty to the sexual assault. Didn’t you?
INTERPRETER: Yes.
MR DULDIG: Given this, I suggest that you did touch your victim on the genital area, without her consent - because you pleaded guilty to that offence.
INTERPRETER: That time, the lawyer told me that I had touched her body, outside - her body, and that it would be - it would amount to sexual assault.
MR DULDIG: I would just suggest to you that your evidence is quite contradictory in respect of this offence, because a minute ago you seemed to have accepted responsibility, but now you seem to be saying that she did consent.
INTERPRETER: Sorry, can you repeat that, please?
MR DULDIG: Yes, that - sorry, that’s fine. I would suggest that your evidence, in respect of (indistinct), is contradictory. Because earlier you seemed to accept responsibility, but now you’re saying that she consented to you touching her.
INTERPRETER: Who give - whose consent are you referring?
MR DULDIG: I think it should be fairly obvious that I’m referring to the victim’s consent.
INTERPRETER: I don’t know - the kind of reply - I can provide. I’m only explaining what happened.
MR DULDIG: Okay. Perhaps the reply that you could give would be a yes or no answer to the question. Do you still accept that you committed sexual assault in 2016, given that you pleaded guilty to that offence?
INTERPRETER: Sorry, what year - 2000?
MR DULDIG: 2016.
INTERPRETER: ‘16. Sorry.
She was my fiancée, or girlfriend. We have stayed together. She made a complaint. So, I faced that case.
MEMBER: [GVJJ], you are persistently evading questions. That question admits of a yes or no answer. Would you please give one.
INTERPRETER: There, it’s registered as sexual assault.
MEMBER: I beg your pardon?
INTERPRETER: His answer is: there, it is registered as sexual assault.
WITNESS: That is - yes.
MEMBER: [GVJJ], I am directing you to answer, specifically, the question you are asked. Mr Duldig, would you please repeat the question.
MR DULDIG: Thank you, I’ll just let them translate first.
INTERPRETER: (Foreign language spoken.)
WITNESS: Okay.
MR DULDIG: The question is: do you still accept that you committed sexual assault, in 2016? Which is what you then pleaded guilty to in 2017.
INTERPRETER: (Foreign language spoken.)
WITNESS: Yes.
INTERPRETER: Yes.
MR DULDIG: Thank you.
The Applicant was again asked why he had included a statement which he now claimed he did not understand, being “pubic area”. He said he obtained a transcript, he was unclear which was the pubic area, and that after the hearing yesterday he had done a google translate search of what it meant. Asked why he signed a statement he did not understand a phrase in it, the Applicant smiled and said[37]:
How can I explain that. I can’t remember whether touching that external part is pubic area. I’m not too sure.
[37] Transcript of Proceedings dated 16 June 2021, page 45 lines 46-47.
Asked about his other offences, one of which was contravening a Domestic Violence Order. He said he had phoned her. He was referred to T11 page 186[38], the sentencing transcript of the offence, and what his lawyer said at line 37:
So he’s made an attempt to contact her knowing that he was not allowed to, to find out what’s going on.
[38] Exhibit 1, T Documents.
He was asked why he contacted her if he knew he was not allowed to. He said it was his mistake. He contacted her because he felt like talking to her. He was asked if it was worth breaching the order if he wanted to talk to her, and replied not exactly and admitted that it was his fault.
The following exchange occurred:[39]
[39] Transcript of Proceedings dated 16 June 2021, page 47 line 26 – page 48 line 28.
MR DULDIG: Why did you contact the person if you knew that you weren’t allowed to?
INTERPRETER: Yes, it’s my mistake. My fault.
MEMBER: Why did you do it at the time?
MR DULDIG: Do you think it’s risky - - -
MEMBER: Why did you do it at the time?
INTERPRETER: I felt like talking to her.
MR DULDIG: So, did you think it was worth breaching the order because you wanted to talk to her?
INTERPRETER: Not exactly. I wanted to call her. I admit that it was my fault for attempting to call her.
MR DULDIG: Did you just not care that you had been ordered not to contact her?
INTERPRETER: Yes, I knew that I was prohibited from calling. I didn’t realise that it’ll turn out to be this - it will emerge - this sort of scenario would emerge. I told her that it was my fault for having called her.
MR DULDIG: So, did you think it was worth the risk because you didn’t think the consequences would be that bad?
INTERPRETER: Could you please ask the question again?
That’s what the applicant says.
MR DULDIG: Of course. Did you think it was worth the risk to contact her, knowing that you weren’t allowed to because you didn’t think the consequences would be that bad?
INTERPRETER: I did not realise that the consequences would be so enormous. I called her on the basis of being the partner. Having violated or breached the order, it’s my fault.
MEMBER: So, was that a yes or a no?
WITNESS: Yes, that’s false, yes. My mistake.
MEMBER: So are you saying, “Yes”, you called her because you didn’t think the consequences would be that great. Is that what you’re saying yes to?
INTERPRETER: Yes.
He said that taking her phone during an argument resulted in the Domestic Violence Order. He said she also made a complaint that he had raped her. She was angry because he had taken the phone, so she complained of rape but that did not happen.
The Applicant was asked if he thought it was justified to take her phone because she was having an affair, he replied he did not know if what he did was fair or not fair, but when he was close to her and the phone rang she would either “cut the line or off the phone.”[40]
[40] Transcript of Proceedings dated 16 June 2021, page 48, line 5.
The Applicant was asked if in the future he would do the same thing again if he thought his partner was having an affair, he replied no. He said they have no contact and live independently. He is told that it was his fault for taking the phone, and was asked if he believed that it was his fault. He said at the time, when he took the phone he did not have any thought. Later on he realised that what he had done was wrong.
The Applicant was asked about his breach of a bail condition, and referred to T11 page 177[41], it was put to him that he was late for an appointment with the police and that is why he was charged with a breach of bail, and he agreed. He explained that at the time he was delayed at work and he rang the police who told him there were no issues, and to come and sign. After signing he was told that the matter had to be referred to court and he was fined $400. He accepted that he had failed to turn up on time.
[41] Exhibit 1, T Documents.
He was referred to another charge of entering a casino contrary to an order or direction, and asked to explain the circumstances. He said that he occasionally goes to the Brisbane Casino to play. The croupier announced no more bets, and he then placed chips on what appears to have been the winning number after the announcement. He was told what he did was wrong, and was suspended for a short period. The Brisbane and Gold Coast casinos are under one company, and if not allowed to play at one, he could not play at the other. He went to the Gold Coast Casino and was told that it was wrong for him to enter, and they would refer the matter to court. He said coming to court from Brisbane was difficult and they asked him to give a letter, undertaking not to enter a casino until his suspension was over. He could not remember the amount of the fine. Now the suspension is over, and he can enter casinos.
He claimed that he did not know that the Brisbane suspension applied to the Gold Coast casino. He accepted that he breached the order by entering the Gold Coast casino, but said that it occurred due to lack of knowledge.
The Applicant was asked about the explanation of his offending that he gave to the Department, and referred to question 39, in his citizenship application, and admitted having been found guilty of the offences discussed. When asked why he did not record the offences in his answer, he said that he could not fully read and comprehend it, and received help from a “sister relation”. She had also applied for citizenship around that time, and she asked him questions and he provided answers. He said having seen the words not convicted he clicked. He said he was not too clear, and saw the phrase not convicted and is “sorry about it.”
The friend who helped him was the wife of a friend. He did not know her full name, but she is called Reno. Asked why he had not referred to her prior to the hearing, he said he was not very clear as to what connection he was being asked about this person. Asked why he did not put an explanation of this in his statement, the Applicant paused, and replied he did not know why he did not mention her. If there were any questions to that effect he was not sure.
The Applicant was asked about T8 page 161[42], an invitation sent to him in June 2020 inviting him to comment on certain things, the Applicant was asked about the reference to the part of the letter describing his attempts to inform the Department of his offences. He said that he gave this all to the lawyers and sought their help. He was not able to comprehend what was stated there.
[42] Ibid.
The Applicant said that he could give the contact number and email address of the husband of the person who helped his complete the form. It was put to him that it was ultimately his responsibility to ensure that the form was correct, and he said it was his mistake.
Asked about the reason he wants to become an Australian citizen, the Applicant said that his family back home are arranging a marriage for him, and he will only be able to arrange to sponsor her if he is a citizen. He arrived by boat, and under his PR category he cannot sponsor his wife to be. He wants to sponsor his wife and to live here.
In re-examination, the Applicant was asked by Mr Foster why he felt like talking to Ms N when he phoned her, he said he called her to ask “why all this had happened, just merely taking the phone from her.”[43]
[43] Transcript of Proceedings dated 16 June 2021, page 57 lines 39-40.
The Tribunal heard evidence by telephone from Suresh Lakshmamn who had provided a statement[44] and is duplicated at T11 page 188[45].
[44] Exhibit 5G.
[45] Exhibit 1, T Documents.
The witness confirmed that he had made a statutory declaration for the Applicant, and confirmed that he is the Applicant’s tax agent and accountant. He confirmed that he had stated that the Applicant always met his tax obligations, and his opinions had not changed since making the statutory declaration. He said that he met him about four times a year. He recalled saying that he considered that the Applicant was suitable to be an Australian citizen. He said he did not know him personally outside business, and that the Applicant was tax compliant.
Mr Duldig asked the witness if he was aware of the Applicant’s criminal history, and the witness said that the Applicant had disclosed his history to him before he signed the declaration. He recalled an episode with a casino and a domestic violence issue. These were the only issues he had disclosed.
The Tribunal heard evidence by telephone from Rev Fr Pancras Jordan a Catholic Priest who provided a statement at T11 page 191 dated 6 June 2020[46] and a later statement dated 8 December 2020[47].
[46] Exhibit 1, T Documents.
[47] Exhibit 4.
The witness confirmed that he had provided two declarations, but could not recall the precise dates. He said that he knew the Applicant through his role at church and as a leader of the Tamil community. The witness said that the Applicant had some issues with his girlfriend, and he had spoken to him about how to treat and respect women. The witness said he had given him encouragement, and he had not done anything wrong in the last couple of years. The witness had promised him to improve his lifestyle and he is a changed man.
The witness confirmed that he had seen the witness regularly and he had told him he had to be a good man. The Applicant had expressed remorse to the witness, and said he was fully aware of what he had done, and acknowledged what he did to his girlfriend, and the witness thought he was sincere, and would not get into the same situation in the future. The witness said that he still believed this. He said that he used the word trustworthy to describe the Applicant and said that he had told the Applicant that he had to be extremely careful how he interacted with other people. He also helped a family organise a birthday party for their child. The witness said that if someone asked him to do work free of charge for the church, he does it.
Under cross-examination, the witness said that the Applicant had mentioned that he must have touched her. He was not aware of any other offences that the Applicant might have committed. He was aware of speeding and similar matters, but no other offences.
The Tribunal heard evidence from Gregg Robson who had provided a statement at T11 page 193[48].
[48] Duplicated at Exhibit 5F.
The witness gave evidence, and remembered providing his statutory declaration dated 8 June 2020. The witness said that the Applicant was offered a role as a subcontractor for him, and he had contact with him on average about once every two months, when he would visit the site where he worked and say hello to individual drivers, to see how they were going with their roles. As a result of these interactions, he formed the view that the Applicant performed his tasks with the utmost professional attitude, and he had never had a complaint from any of his clients in respect of him. He maintains the opinion that he expressed in his statutory declaration. Apart from business, he does not see the Applicant at all.
Under cross-examination, the witness said that he became aware of the Applicant’s criminal history at the time that he was asked to provide the reference. He could not recall the details of it but was “quite taken aback” by it. He was not aware that he had lost his licence.
This concluded the case for the Applicant and Mr Foster was granted a short break prior to making closing submissions.
On resumption Mr Foster address the Tribunal regarding the Applicant’s failure to attend as directed earlier that day. He informed the Tribunal that the Applicant did receive the message from his instructing solicitor, and said that the Applicant didn’t understand the words “in person” and that’s why he didn’t turn up. The message had been sent at about 2:00PM the previous day and replied to by the Applicant at 4:53PM. Mr Foster then applied to reopen his case for the limited purpose of establishing that a message was sent to the Applicant by his phone, and that the Applicant didn’t understand the part of the message which required him to attend “in person”.
The Applicant was recalled to give evidence regarding his failure to attend personally as directed at 10 am on the morning of the second day of hearing. Mr Duldig informed the Tribunal that he had no objections to Mr Foster leading evidence from the Applicant.
The Applicant gave evidence that he received a message on his mobile phone that he was to appear in person at the Tribunal. He was able to open his phone and retrieve the message. Mr Foster read the message into the record[49]:
[49] Transcript of proceedings dated 16 June 2021, page 75 line 30 – page 76, line 4.
MR FOSTER: Please check your email for your attendance tomorrow at 10 am in person at the AAT. Because the Minister is asking question, I am unable to speak to you until the Minister finishes his cross examination. I will certainly speak to you afterwards as your lawyer. This is their rules. You and me must obey their rules. Please be patient.
So, having followed me do you agree that what I have read is what was in the message?
WITNESS: Yes.
MR FOSTER: And then at 4.53, did you reply to that message on your phone?
WITNESS: Yes.
MR FOSTER: What did you say?
INTERPRETER: I sent a reply saying ‘Okay.’
…
MR FOSTER: Did you also get an attachment on your email which included the direction from the Tribunal that you attend the Tribunal in person, yesterday?
INTERPRETER: So, sorry, you are referring to attachment and can you please repeat that question please?
MR FOSTER: Yes. Did he also receive on an email an attachment which was the Tribunal’s directions to attend, yesterday. That is, to attend today, but did he receive it yesterday.
INTERPRETER: (Indistinct) in the email I understood it as 10 am and video interview. That is what I understood.
MR FOSTER: So, this morning when the member asked you why you didn’t turn up at 10 o’clock to the AAT, you said you didn’t know you had to. Do you remember?
INTERPRETER: Yes.
MR FOSTER: Why was that? Why was it that you didn’t actually understand you had to turn up?
INTERPRETER: After reading, I was under the impression that it was a video call - to be presented by a video call. Sorry about it.
MR FOSTER: And, yes, I think that’s the evidence I’m to lead.
MEMBER: Thank you, Mr Foster.
The Tribunal then received closing submissions.
Mr Foster submitted that a perusal of the outcome of the Applicant’s criminal charges indicated that there were in fact penalties, but no convictions. He acknowledged there were also traffic offences which had not been disclosed by the Applicant. He submitted that the Applicant’s English and reading ability was “extremely poor” and that the Tribunal should accept that explanation, and that his conduct did not amount to an attempt to deceive the Department about his criminal or driving histories.
Mr Foster submitted that the Applicant’s driving history was not of itself a matter that would cause the Tribunal to reject citizenship application. Mr Foster submitted that the Applicant admitted to the District Court the relevant offence and pleaded guilty. He submitted also that the Applicant “gave a full and frank explanation to the Tribunal about what he recalled happening leading up to his plea of guilty at the time”[50].
[50] Transcript of Proceedings dated 16 June 2021, page 81, lines 14 – 15.
Mr Foster submitted that the Applicant’s casino offence occurred because he was unaware of the scope of the order made against him. The breach of bail offence occurred because he’d been late to attend the police station. He said that the Applicant had attempted to adhere to his obligations by notifying the police that he would be late.
Mr Foster submitted regarding the Applicant’s explanation for his breaching the Domestic Violence Order was that he had given evidence that he knew he shouldn’t have phoned her but wanted to speak to her about her allegations. He submitted that this was a reasonable explanation for him breaching that Domestic Violence Order particularly in light of the consequence that her complaints were not proceeded with by the prosecution, and the duration of the relationship. He further submitted that the Applicant’s failure to attend personally as directed arose as a result of a misunderstanding of the English language.
Mr Foster reviewed the positive evidence given by the Applicant’s three witnesses.
Mr Foster submitted that the Applicant accepted the ingredients of the sexual offence were committed by him; but submitted that there was no injury sustained and that the relationship appeared to continue on for some two years. He said that the sexual assault was a one-off incident which the Applicant had explained concerning his view that the victim was seeing another man.
Mr Foster submitted that a Ministerial Direction entitled “Order for Considering and Disposing of Family Visa Applications”[51] originally thought to be Direction 72 but finally determined as being Direction 80 meant that there would be substantial delays in the processing of the Applicant’s anticipated Partner visa application. After some discussion, it was agreed that the reason why the Applicant wanted to become an Australian citizen did not bear on his character.
[51] Ibid, page 84, line 29.
Mr Duldig submitted that the Applicant had pleaded guilty to sexual assault, and had accepted the ingredients of the offence. He submitted that the essential ingredients are that the Applicant had indecently assaulted someone, and in particular he touch the pubic area of his victim without her consent. He submitted that even though there is no evidence that the victim was injured by the assault, that it was both nevertheless sexual and violent in nature. He submitted that an offence which involves touching a person without their consent cannot be viewed as anything but violent. He submitted that there were many cases which demonstrated that the Australian community has zero tolerance for violent sexual offences.
Mr Duldig further submitted that the Tribunal should harbour grave concerns about the Applicant’s breach of a Domestic Violence Order. The Applicant had accepted under cross examination that he contacted the person who is protected by that order knowing that he was not allowed to. He submitted that despite any developments after that point in the relationship between the two, the Applicant’s conduct demonstrated that he was willing to breach orders made against him because he found it convenient to do so, and the Tribunal, on that basis should harbour concerns about his character.
Mr Duldig submitted that the Tribunal’s concerns should be underscored by the Applicant’s extensive traffic history. The Applicant’s evidence appeared to be that all of his speeding occurred in circumstances where he was rushing to arrive at an appointment. It was submitted that this further showed that the Applicant was willing to disobey laws and orders that were placed on him when he found it convenient to do so.
Mr Duldig continued:[52]
The evidence that the applicant has given under cross-examination, in my submission, underscores that the Tribunal should harbour ongoing concerns about his character. Particularly in respect of the applicant’s offence of sexual assault, the evidence that the applicant gave was, in my submission, evasive. We became side-tracked in a lengthy and unfortunate discursus (sic) on the meaning of the term ‘pubic area’ only for the applicant, listening, to finally accept that he did in fact commit the offence, to which he pleaded guilty. He only provided a yes or no answer to that question upon being specifically directed to do so by the Tribunal. In my submission, this demonstrates that the applicant’s evidence has been evasive and this bears on the credibility of all of the applicant’s evidence.
In respect of the applicant’s explanation for why he did not disclose his offending to the Department, in my submission, his explanation was entirely unsatisfactory. The applicant has been provided with multiple opportunities to explain why it is he did not disclose his offending and waited until today to provide his explanation. If it is the case that the applicant received help with his application and did not understand the questions he was being asked, he should have taken further steps to confirm that he was providing fulsome information to the Department. Given that the applicant had an obligation to provide all of the relevant information to the Department, the Tribunal should therefore find that a failure to provide the correct information reflects poorly on the applicant’s character, even if the Tribunal does not find that he deliberately lied to the Department.
[52] Ibid, page 87, line 24 – line 47.
Mr Duldig submitted in respect of the Applicant’s submission that four years have passed since his last offending, because aspects of his criminal history include crimes of which the Australian community has no tolerance, the Tribunal should find that not enough time has passed to find that he is now of good character. In respect of his submissions about the alleged rape, the Applicant has never been found guilty of rape, and the Tribunal should make no finding in respect of it.
There was no reason to doubt the credibility of the Applicant’s character witnesses. However the weight should be limited. None of them had any detailed understanding of the Applicant’s full criminal history, and in respect of Robson and Laksmanan he does not have a day to day relationship with them. Rev Fr Pancras Jordan sees him on a bi-monthly basis, however his evidence should be treated with caution as his evidence was that the Applicant is fully remorseful for his sexual assault, but it was submitted that this was entirely inconsistent with the Applicant’s oral evidence in the hearing. His evidence appeared to be that he pleaded guilty on the basis that his offence would be viewed as a sexual assault, and that was a very long way from fully accepting the impact of his actions.
CONSIDERATION
Section 21 (2) (h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application. It is well-settled that Australian citizenship is “a privilege given to persons who demonstrate good character”.[53]
[53] Per SM Handley in Haeri and Minister for Immigration and Citizenship [2009] AATA 422 at [35].
In Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen, at paragraph 8 discussed the role of the character requirement in a citizenship application as follows:
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 community 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.
The Tribunal accepts that this Applicant has made some positive contributions to the Australian community. So much is borne out by the character witnesses who were called on his behalf, although none of those witnesses, although credible demonstrated any particularly detailed understanding of the Applicant’s full criminal history, and they have limited day-to-day contact with the Applicant. These factors lessen their credibility. Rev Fr Pancras Jordan gave evidence that the Applicant was fully remorseful for his sexual assault however this was not the impression the Applicant gave the Tribunal at the hearing. The Tribunal nevertheless accepts that the Applicant has conducted his own business for a period of some six years and been tax compliant. He appears to work well and consistently in the Australian community. The Tribunal notes that the sentencing judge regarded his conduct is out of character.
The sentencing remarks of the District Court Judge[54] record:
… Your being sentenced by me today having pleaded guilty to one count of sexual assault. The sexual assault was committed against your former partner, who is the mother of your child. You commenced a sexual relationship with her in 2014. She fell pregnant and had the child in April 2015. The relationship between you had cooled but you occasionally still had sexual intercourse together.
On 24 February 2016 she had been attempting to contact you because the child was ill. You went to her home at about 10:30 PM. When you are there, you touched her pubic area over her clothes but without her consent. That was the sexual assault.
[54] Exhibit 1, T Documents, T11 page 181 lines 3 – 20.
Notwithstanding the facts which were placed before the sentencing judge, before this Tribunal the Applicant found the task of owning up to the fact that he had touched the complainant’s pubic area over her clothes but without her consent, a particularly challenging one. He was particularly, and persistently evasive. He sought to characterise the episode as little more than “a misunderstanding.” He initially claimed to have been “not familiar with the area”.[55] He later stated that “I had in anger touched her”.[56] He later claimed to have touched her in the genital area to “calm her down” but when pressed on this, he could not remember which part he touched.[57] He later claimed to have touched her with her consent.[58]
[55] Transcript of proceedings dated 15 June 2021, page 22 line 45.
[56] Ibid page 22 line 25.
[57] Ibid page 23 lines 11 – 28.
[58] Ibid page 43 line 17.
There are many instances of evasion, side tracking, and minimisation by the Applicant in response to questions both from the Tribunal and counsel for the Respondent. He regularly responded to questions pertaining to his sexual offence by trying to turn the conversation into one about unanswered phone calls and physical possession of a phone. It was necessary for the Tribunal to issue numerous directions to the Applicant to respond specifically to questions, and to physically attend. His non-attendance before the Tribunal is unfortunately evocative of his failure to appear in accordance with his bail conditions. The Tribunal considers it improbable and implausible that the Applicant was sentenced other than on specific facts which he instructed to his lawyers at the time. His subsequent evasions before this Tribunal of the conduct admitted before the District Court was disingenuous and not credible. The Tribunal is not satisfied that the Applicant acknowledges the seriousness of his past conduct and its impact upon his victim. His evidence and conduct before the Tribunal leads to give little weight to the fact that he has been offence free in recent years.
The Applicant has had many opportunities to explain his nondisclosure to the Department, but waited until the hearing before doing so, notwithstanding a specific written request from the Department, and this weighs against the applicant.
None of the witnesses called for the Applicant gave any evidence so as to suggest any English comprehension difficulties on his part. The Applicant came to Australia in 2009, and his English speaking skills have been sufficient to allow him to establish and carry on a successful business with employees since 2014. His English skills have clearly been sufficient to enable him to establish and develop the business, secure and perform contracts, and in the process impress others with his performance and his professional attitude, obtain an Australian driver’s licence, and comply with the complexities of Australian tax law. The Tribunal nevertheless accepts that the Applicant has a commitment to the conduct of his business and the delivery of the services it provides. Unfortunately that commitment has led him to a lengthy and unattractive history of compliance with Queensland’s laws.
The Applicant’s traffic history is relevant for the purposes of this decision.
In Bartlett and Minister for Immigration and Border Protection[59] Senior Member Tavoularis made observations concerning the danger to the community in the breach of traffic laws. This Tribunal respectfully adopts those observations:
43.… There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. His offences of drink-driving and un-licensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society in so far as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.
44. I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of the vehicle.
45. The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”.[60] other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a license, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
[59] [2017] AATA 1561 at [43] – [45].
[60] See Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16].
As has been observed by Deputy President McDermott[61], this Tribunal has consistently emphasised[62] that the traffic history of an Applicant for Australian citizenship is a relevant consideration in considering the character of an Applicant for Australian citizenship.
[61] Per D.P. McDermott in Oliveira Abitante and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 68 at paragraph 26.
[62] Apire and Minister for Immigration and Border Protection [2014] AATA 193; Gage and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 326; SLNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 344; Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 421; Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 32.z
The Tribunal accepts the submission by the Respondent that violence in a domestic situation by one partner against another cannot be trivialised or downplayed.
The Tribunal respectfully adopts the words of Senior Member Puplick in Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48]:
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 with a manifest physically, emotionally or psychologically.
That the Applicant should breach a domestic violence order in the circumstances in which he did, whilst on bail for a sexual offence is of great concern. His explanation for this conduct was very unsatisfactory, as was his general evidence and excuses. The Tribunal finds his claims of rehabilitation and expressions of remorse to be unconvincing.
His driving has not only breached Queensland law, it has placed himself and other road users at risk.
The Applicant has in the past failed to comply with the criminal law of Queensland regarding sexual offences, domestic violence, and bail. He has an unimpressive traffic history. Before this Tribunal, his evidence was neither credible, nor cooperatively given. He has a strong pattern of ignoring his legal obligations when he’s found it convenient. He seems ready to try whatever he thinks he can get away with. The Applicant made a false statement in the course of his completing his citizenship application, and this, together with his other conduct leaves Tribunal comfortable to find he is not a person of good character as at the date of this decision.
In ruling against the Applicant, the Tribunal is mindful of the fact that after a period of time, it may be that he is able to satisfy the good character requirement.
DECISION
In the light of all of the foregoing, the Tribunal is not satisfied that the Applicant was a person of good character at the time the Reviewable Decision was made, nor as at the date of this Decision, and accordingly, the Reviewable Decision is affirmed.
I certify that the preceding 131 (one hundred and thirty-one) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
..............................[SGD]......................................
Associate
Dated: 29 September 2020
Date(s) of hearing: 15 – 16 June 2021 Applicant: In-person Solicitors for the Applicant: Sentil Solicitors and Barrister Solicitors for the Respondent: Clayton Utz
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