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

[2022] AATA 3609

Gyamtso and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 3609 (19 September 2022)

Division:GENERAL DIVISION 

File Number(s):      2021/8778

Re:Tsering Gyamtso

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

ORAL Decision

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:19 September 2022

Place:Sydney

WRITTEN REASONS

Date:17 October 2022

The Tribunal sets aside the reviewable decision and remits the matter to the Respondent with a finding that the applicant is a person of good character for the purposes of paragraph 21(2)(h) of the Act.

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

Emeritus Professor P A Fairall, Senior Member

Catchwords

CITIZENSHIP – application for citizenship by conferral – refusal – good character requirement – reckless wounding committed as young person – reacting to racist taunt–– effluxion of time – decision under review set aside and remitted

Legislation

Australian Citizenship Act 2007 (Cth) ss 21, 24

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Grass v Minister for Immigration and Border Protection [2015] FCAFC 44

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

VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230

Secondary Materials

Citizenship Procedural Instruction (CPI) 15 – Assessing Good Character under the Citizenship Act 2007

WRITTEN REASONS FOR DECISION

1. On 15 November 2021, a delegate of the Respondent refused an application by Mr Gyamtso (the applicant) for Australian citizenship by conferral, acting pursuant to subsection 24(1) of the Australian Citizenship Act 2007 (Cth) (the Act). The delegate was not satisfied that the applicant was a person of good character as required by paragraph 21(2)(h) of the Act (the reviewable decision).

2. On 17 November 2021, Mr Gyamtso applied to the Tribunal for merits review of the reviewable decision, and his application was heard by videoconference on 19 September 2022. He was self-represented. The Respondent was represented by Mr M Sheedy of Sparke Helmore Lawyers

3. At the conclusion of the hearing, I set aside the reviewable decision of the delegate, pursuant to paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), and remitted the matter to the Respondent with a finding that Mr Gyamtso is, at the time of hearing, a person of good character.

4. On 21 September 2022, the Respondent asked the Tribunal to provide written reasons for its decision.

   FACTS

5. Mr Gyamtso was born in 1995 and is presently 26 years of age. He arrived in Australia on 2 July 2014 as an eighteen-year-old. He did not speak much English and he was alone. Over the past 8 years he has learnt fluent English and works as a house painter. He trained for this vocation at TAFE and now runs his own painting business. He has strong connections with the Tibetan community and is involved with the Tibetan Youth Council.

6. However, he has a criminal record, which consists of two criminal offences, and two traffic offences that were dealt with by way of expiation notices.

   CRIMINAL OFFENDING

   Trespass 

7. On 22 July 2015, Mr Gyamtso took part in a demonstration by members of the Tibetan community at the Chinese Consulate in Camperdown, Sydney. He was then 19 years old. On 24 September 2015, he was convicted of trespass on protected premises. The court held that by reason of his antecedents it was inexpedient to inflict any punishment. He was discharged without proceeding to conviction on the basis that he provided a surety of $450.00 to be of good behaviour for 18 months.[1]

   [1] TB1, 1.

   Reckless wounding 

8. A much more serious offence occurred on 29 October 2017, when he was 21 years of age.

9. A police officer who attended the scene recorded the following statement, in which the applicant is referred to as the ‘accused’.

   About 1:00am on Sunday the 29th of October the victim was sitting and a number of associates in Walter Gors Park on Howard Avenue, Dee Why.

   At about 1:15am the accused, enter the park through the walkway from Dee Why Parade. As the accused walked past the victim and his friends, someone from the victim's group has made comment towards the accused, saying something similar to "Bloody Asians!" An argument has broken out before the accused has left the park.

   The accused has walked across Howard Avenue and enter the car park which leads to Pacific Parade. In the car park the accused saw two other males of Asian, appearance. The accused warned the two males that there is a group of people in the park who made fun of him for being Asian, and that they should avoid the park. One of the males wanted the accused to go park to the park and point out the group. The accused agreed to accompany the males to the park. While walking back to towards Walter Gors Park the accused has removed an empty Carlton Draught longneck beer bottle from a trolley and placed it into his pants pocket.

   The accused and the two males entered Walter Gors Park and approached the victim and an associate who were standing near one of the large trees. One of the other males with the accused has said, "Why don't you say what you said before?" The victim and this associate have told the accused and the males to leave the park.

   The accused has removed the bottle from his pants and immediately smashed the bottle on the concrete garden bed of the tree the group were standing around, causing the bottom of the bottle to become sharp. The accused has stood in front of the victim and held the broken bottle out in front of the victim. The victim has told the accused to drop the bottle.

   After observing the broken bottle one of the witnesses has run to a bin and removed a length of timber, which he bought back to where the victim and the accused were standing. The witness has passed the stick to another associate of the victim who has swung the timber at the accused in an attempt to disarm him. As this was occurring the accused has struck the victim across the face with the broken bottle causing deeps wounds to his left ear and face. The victim has also suffered a wound to the middle of his back. The location of these two injuries suggest that he was struck on two separate occasions.

   The accused has run from north through the park, crossed Howard Avenue and enter the car park which leads to Pacific Parade. The victim's associates have given chase to the accused through the park and across Howard Ave into Dee Why main car park where he was apprehended.

   The victim's associates have flagged down a passing by police vehicle driving by. Police have approached the accused, placed him under arrest and cautioned him. At this time Police observed a severe cut to the accused's right hand.

   Shortly after this Police spoke with the victim in the same car park. Police observed wounds to the victim face, and while administering first aid observed a severe wound to the victims back. While administering first aid the victim lost consciousness.

   Both the accused and the victim were transported to hospital to receive treatment for their injuries. On the 1st of November 2017, the accused attended Manly Police Station where he was placed under arrest and cautioned before he was introduced to the Custody Manager and read his rights whilst in police custody.

   The accused participated in an electronic recorded interview R0504296 where he made admissions to carrying the bottle into the park and smashing it and striking the victim after he was hit with the stick. As a result of being struck with the bottle the victim suffered a number of deep lacerations to his face, the cartilage of his ear was partially separated from his head and large deep laceration to the middle of his back. All injuries required extended medical treatment. The victim will have visible scars to his face after the injuries have healed.

   Police allege that by breaking the bottle the accused has escalated the conflict with the intention of causing substantial fear and violent injuries to the victim. By breaking the long neck bottle before assault the victim the accused has ensure that the weapon would inflict maximum damage to the victim.

   At no time did the victim give the accused permission to assault him.

   The accused is now charged with the matter before the court. [2]

   [2] TB2, 8.

10. I note that the persons described as ‘witnesses’ were associates or friends of the alleged victim, and part of the initial group including the person or persons who taunted the applicant. One of these ‘witnesses’ reached for a piece of timber, which was then used to hit Mr Gyamtso. After an exchange of blows, in which Mr Gyamtso and another man were hurt, they chased him from the park. Fortunately, a police car was passing by and stopped. Mr Gyamtso had very little English at this stage. He was the only person arrested or charged.

11. He suffered an injury to his hand, for which he required surgery.[3] He described his injuries to the Tribunal as involving lacerations to his face, three fractured ribs, and a nick to the bone in his elbow.

    [3] TB2, 11.

12. The victim described his injury as follows:

    I will kick it off with the aftermath of the attack on me with how it set me back with work I lost 2 1/2 months worth as it lead to Christmas and days were too hot to work in with my scar still hearing I would of had $900 a week I had to dig into my savings to pay rent $600 a fortnight it took me a week to tell my mum I was embarrassed and my dad found out without Me telling him but I didn’t want to speak to him about it also it was troubling for me to say anything because I didn’t know how they would react it was hard for me to sleep properly for 2 weeks I was in so much pain at night I got nerve damage on the left side of my face I touch my cheek and I can feel it go down next to my mouth I got a steroid injection into the scar in my back to bring down the scar tissue build up which cost me 100$ at Mona vale I couldn’t train and it stopped me from doing bikram yoga in brookevale I had to put my trial on hold till the next year around February but going back in it would still get infected so had stop for a few more weeks after that

13. On 10 May 2018, Mr Gyamtso pleaded guilty to a charge of reckless wounding. He was originally charged with three offences, but two of the charges were withdrawn.[4] He was sentenced to an Intensive Corrections Order of two years duration, commencing on 2 November 2018 and ending on 1 November 2020.

    [4] TB3, 37. Charges of assault occasioning actual bodily harm, and wound with intent to cause grievous bodily harm, were dropped.

14. When the matter came to court, Mr Gyamtso was legally represented, and he and his solicitor signed a document headed ‘Agreed Facts’,[5] which contains the following paragraphs:

    [5] TB2, 9.

    14.      The accused removed the bottle from his pants and immediately smashed the bottle on the concrete garden bed of the tree the group were standing around, causing the bottom of the bottle to become sharp. The victim observed the sound of breaking glass.

    15.      The accused has stood in front of the victim and his friends with the broken bottle in his right hand outstretched in front of him. The accused was about 1.5 metres away from the victim. The victim has told the accused to 'drop the bottle'.

    16.      The accused lunged multiple times at the victim and his friends. He stated 'don't think I won't stab you cause I will' more than once. After observing the broken bottle Kris Lovelock has run to a bin and removed a length of timber, which he bought back to where the victim and the accused were standing.

    17.      Kris Lovelock swung the timber at the accused in an attempt to disarm him. The victim also attempted to disarm the accused. The victim tried to lean in and grab the bottle. As this was occurring the accused has struck the victim across the left side of his face with the broken bottle in his right hand. This blow has caused deep wounds to his left ear and face. The victim continued to attempt to disarm the accused. The victim has also suffered a wound to the middle of his back.

    18.      The victim does not remember being injured. He remembers being on the grass and his face was wet. He touched his left hand to his face and it was covered in blood. The victim saw the accused run away from him.

    Arrest

    19.      The accused ran north through the park, crossed Howard Avenue and entered the car park which leads to Pacific Parade. Kris Lovelock and Myles Lange chased the accused through the carpark. The victim, who was bleeding from his head, attempted to chase the accused.

    20.      Kris Lovelock and Myles Lange catch up to the accused and detain him. Passing by police have observed this scene and have approached the accused. The accused was searched by police for prohibited weapons. The accused was placed under arrest and cautioned. At this time police observed a severe cut to the accused's right hand. The accused stated to police that "they said things and hit me with a stake" and "I have been assaulted".

    21.      Shortly after this Police spoke with the victim in the same car park. Police observed wounds to the victim's face, and while administering first aid observed a severe wound to the victim's back.

    22.      While administering first aid the victim lost consciousness. An ambulance was called. Both the accused and the victim were transported to Royal North Shore Hospital and Manly Hospital respectively to receive treatment for their injuries.

    23.      The accused stated to the ambulance officer that he had been struck with a piece of wood and that the broken glass bottle had caused the injuries in his hand.

    24.      The accused told staff at the hospital that he had been assaulted with a long piece of wood and that he had assaulted the victim with a broken glass bottle. He stated that he had tried to run from the scene but he was caught, taken to the ground and kicked and punched repeatedly.

    25.      Kris Lovelock and Myles Lange showed police where the assault had taken place in Walter Gors Park. Police observed a number pieces of broken glass. Police took several photos of the scene of the offence, including photos of the broken bottle left at the scene and the wooden stake. These items were marked by police as exhibits.

    26.      On the 1st of November 2017, the accused attended Manly Police Station where he was placed under arrest and cautioned before he was introduced to the Custody Manager and read his rights whilst in police custody.

15. Mr Gyamtso told the Tribunal that because of his English, he neither read nor comprehended the contents of this document, although he signed it, as did his solicitor.

16. I note that when he first attended St Leonard’s Community Corrections on 16 October 2018, he still spoke very limited English and required a translator.

17. On 16 July 2019, he completed 150 hours of Community Service work.[6]

    [6] TB4, 60.

    OTHER OFFENCES

18. There are two traffic offences on his record, which were dealt with by way of expiation notices: disobey no right turn sign (on 22 December 2019),[7] and proceeding through a red traffic light (on 12 May 2021).[8] The police recorded his excuse for the first offence as being not from the area. As to the second offence, he is said to have waited for about a minute before proceeding. He remembered stopping and waiting for the traffic, stating that he was unaware of the red light.

    Citizenship Procedural Instructions (CPI)[9]

    [7] TB3, 42.

    [8] TB3, 42.

    [9] T17/130.

19. The CPI underline that decision-makers must be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’; and that a person who may not have been of good character can become a person of good character. In most cases, it would not be appropriate to conclude automatically that a person is not of good character because they have been convicted of an offence.

20. The CPI emphasise that in each case the decision-maker should make an assessment. The existence of a criminal record is not of itself fatal to a claim of good character. In making a full assessment the decision-maker should consider information that is relevant to a person’s character, such as information provided by an applicant about his/her family life. This may include being responsibly employed, paying taxes, undertaking community work, and any other matter that is relevant to an assessment of character. This would include expressions of genuine remorse for past wrong-doing, as well as time that has elapsed since the wrong-doing. Ultimately, a decision-maker should weigh up both positive and negative factors relevant to a person’s character.

    POSITIVE MATERIAL

21. I note the Sentencing Assessment report prepared by Corrective Services NSW - dated 31 October 2018.[10] The assessment was that the applicant was at a low risk of re-offending.

    [10] TB2, 16, at 18.

    References

22. I note the references provided by Ms Kerry Wright dated 5 May 2022, and Ms Sue Bloom’s references of 24 October 2019 and 6 May 2022.

23. Ms Wright is a former teacher and has extensive experience with the Tibetan community. She thought that Mr Gyamtso “would be a loyal and law-abiding citizen”. She had spoken to Mr Gyamtso about the 2017 incident and “had come to understand all that happened”. He told her that he paid $1200 in legal fees, and was advised by his lawyer to plead guilty, and refrain from mentioning his broken ribs. She was not sure how she would behave “if she was beaten up with a wooden plank and kicked violently by a group of racist drunk men in a park at midnight”.

24. Ms Bloom is a pharmacist. She has provided two references. She described Mr Gyamtso as a gentle person with a good heart. She says that he is well regarded and always at the ready to contribute his efforts to his community and friends. In her second reference she addresses the 2017 offending.

25. Mr Sheedy suggests that I give these references little weight, for they do not accurately describe his offending. For example, the referees do not address the fact that Mr Gyamtso picked up a bottle and smashed it before one of the group reached for a piece of timber. However, I consider that Ms Bloom and Ms Wright were acutely aware of the nature, seriousness and gravity of the offending. They are experienced professional women and I attach considerable weight to their references.

    Employment

26. I note a reference provided by his work colleagues at JJ&K Painting and Decorating dated 5 October 2018.[11] I accept that My Gyamtso has an admirable work record.

    [11] TB, 63.

    CONSIDERATION

27. The task for the Tribunal is to determine whether the applicant is of good character at the time of the Minister’s decision on the application, which for present purposes is the time of the Tribunal’s decision.[12]

    [12] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [3] per O’Bryan J.

28. I make the following factual findings. Mr Gyamtso did not go out looking for trouble that night. He had spent the evening at home with a friend and went out to get some refreshments. He was on his way home and cut through the park. It was 1 am. He was on his own. He was subjected to a racist taunt by a person or persons in a group of between three and five men drinking in the park. Rather than ignoring the taunt, he responded inappropriately, as young men often do. He continued on through the park, but met two Asian men, and perhaps buoyed by their support, foolishly returned to confront the drinkers in the park, described in the police narrative as the ‘victim’ and ‘witnesses’. His new comrades abandoned him, and he was left alone. Things rapidly fell apart. He picked up a bottle and smashed it. One of the men reached for a piece of timber. Blows were exchanged and both men were injured.

29. There is no doubt that Mr Gyamtso acted in a foolish manner. He told the Tribunal that he wanted to confront the man who had taunted him, and ask him why he had said those things. He appears to have been oblivious of the danger. For a man of relatively slight build (weighing between 70 and 75 kilograms)[13] it was the height of folly to confront a group of intoxicated men who had offered him a racial insult.

    [13] TB3, 36.

1. In judging his reaction to the verbal taunts offered to him by this group of men, it is important to take account of his subjective characteristics. Mr Gyamtso told the psychiatrist Dr Cassimitis that he had been tortured in a Chinese jail in Tibet.[14] He has experienced racism and does not experience it merely as an abstract concept. The Corrective Services Sentencing Assessment Report states that Mr Gyamtso was diagnosed with post-traumatic stress disorder, anxiety and depression.[15] He is vulnerable by reason of his past experiences. He is therefore very sensitive, perhaps even hypersensitive, to racial taunts and attacks.

   [14] See Psychiatric Assessment Report, dated 9 October 2018: TB2 28-30.

   [15] TB2, 17.

2. Despite this, I note his desire, expressed shortly after the event, to write a letter of apology, and such a letter appears in the materials before the Tribunal, although there is no evidence as to whether this letter was actually sent or received.[16]

   [16] TB4, 58, TB2, 34.

3. There is no doubt that Mr Gyamtso was provoked and like many who act under provocation acted before he had time to cool down. He certainly should not have acted as he did. As Mr Sheedy said, the consequences could have been much worse. Had the broken bottle hit an artery he would now be doing a very long stretch in jail, up to and including life imprisonment.

4. The sentencing comments are not before the Tribunal, but it is hard to imagine that such a serious offence would be dealt with by a community corrections order unless there were circumstances of mitigation. Mr Sheedy was right to recognise the unacceptable nature of the behaviour triggering this incident, but quick to add that it provided no excuse for violence. However, it is important to recognise how destructive such taunting behaviour can be.

5. Five years have passed since this offence was committed. Apart from the traffic offences, he has been of good behaviour. Mr Sheedy does not rely to any degree of the traffic offences. I also note that there are some relatively minor non-compliance issues in relation to his bail.[17]

   [17] TB3, 45.

6. Mr Gyamtso has suffered physically, mentally and financially for this incident in 2017. I note for example that his request at the end of 2019 for overseas travel to see a sick relative was declined.[18]

   [18] TB4, 62.

7. I am satisfied that he is remorseful, and has an understanding that his behaviour was unlawful and wrong. He was not the initial instigator. He acted in a headstrong and foolish way. He was but 21 when this offence occurred. Experience shows that a young man may mature considerably between the ages of 19 and 26. I note his admirable work record, his community engagement, and his embrace of English. He has much to offer his local community and the broader Australian community. I consider that his criminal record should not prevent a finding at this time that he is a person of good character.

   DECISION

8. The Tribunal sets aside the reviewable decision and remits the matter to the Respondent with a finding that the applicant is a person of good character for the purposes of paragraph 21(2)(h) of the Act.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate

Dated: 17 October 2022

38.     Date of hearing: 19 September 2022	39.
40.     Solicitor for the Respondent: Mr Matthew Sheedy, Sparke Helmore Lawyers	41.