Halik and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2023] AATA 2301

Halik and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2301 (1 August 2023)
Division:GENERAL DIVISION
File Number(s): 2022/4905
Re:Umar Halik
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:1 August 2023
Place:Sydney

The reviewable decision is set aside and remitted to the Respondent for reconsideration with a finding that the Applicant is of good character within the meaning of paragraph 21(2)(h) of the Act.
.................[Sgd].......................................................
Mr S Evans, Member
Catchwords
CITIZENSHIP – Application for Australian citizenship by conferral – Refusal of citizenship application – Whether Applicant has satisfied section 21(2)(h) – Good character requirement – Citizenship Policy – Meaning of ‘good character’ – Enduring moral qualities – Common assault – Alleged domestic violence – No pattern of behaviour established – Decision under review set aside and remitted.
Legislation
Australian Citizenship Act 1997 (Cth)
Cases
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Prasad and Minister for Immigration and Border Protection, Re [2017] AATA 1506
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Sharma and Minister for Immigration and Border Protection, Re [2015] AATA 608
Secondary Materials
Australian Citizenship Policy Statement
Revised Citizenship Procedural Instructions
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
1 August 2023
INTRODUCTION

Umar Halik (the Applicant) is a 39 year-old citizen of Myanmar who immigrated to Australia in 2010 and currently holds a Resident Return (Subclass 155) visa.[1] On 28 September 2015 he made an application for Australian citizenship by conferral.[2] His application for was refused by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) on 31 May 2022.[3] At the time of the delegate’s decision, they were prohibited from approving the application as the Applicant was subject to a conditional release order (CRO) which expired on 7 December 2022. The delegate also found that the Applicant was not of ‘good character’, which is one of the requirements for grant of citizenship.[4]
[1] T2/14
[2] T4/113
[3] T2/11
[4] T2/18
On 10 June 2022 the Applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the Tribunal) and the matter was heard on 2 May 2023.[5] By the time of the hearing, the CRO had expired and the prohibition on granting citizenship no longer applied. However, the Minister maintains the decision to refuse grant of citizenship was correct as the Applicant did not meet the good character requirement.[6]
[5] T1/3
[6] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [16]
For the reasons that follow, the decision of the delegate will be set aside.
Issue to be determined
The issue to be determined by the Tribunal is whether, at the time of the Tribunal’s decision, the Applicant is of ‘good character’ such that he meets the requirements of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).
Legislative and policy framework
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen.
Subsection 24(6) of the Act prohibits the Minister approving a person becoming Australian citizen in circumstances which include being subject to a CRO:
(6) The Minister must not approve the person becoming an Australian citizen at a time:
…
(f) if the person:
(i) has been released by a court from serving the whole or a part of a sentence of imprisonment; and
(ii) has been so released because the person gave a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person’s behaviour;
during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or
…
Determining questions of character
The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J said:
Unless the terms of the Act and Regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.[7]
[7] (1996) 139 ALR 84, 94
The Department’s official guides to decision makers include both the Australian Citizenship Policy Statement, which details the overarching legislative requirements for becoming an Australian citizen, and the Revised Citizenship Procedural Instructions (the Instructions).
The relevant policy to this application is found in Citizen Procedural Instruction 15 Assessing Good Character under the Citizenship Act (CPI 15). CPI 15 provides guidance for decision makers, including the Tribunal, in determining whether an applicant is of good character.
Informed by the discussion in Irving, subsection 3.3 of the Instruction state that:
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.[8]
[8] T3/80
The Instructions specifically call for decision makers to ‘look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities.’[9] A person’s enduring moral qualities encompass:
- characteristics which have endured over a long period of time;
- distinguishing right from wrong; and
- behaving in an ethical manner, conforming to the rules and values of Australian society.
It is well established that the Tribunal will apply government policy unless there are cogent reasons not to do so.[10] The Tribunal is guided by the considerations outlined above when determining whether the Applicant meets the good character requirement for Australian citizenship.
EVIDENCE
[10] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ
The Applicant’s offence
The Applicant was found guilty of the offence of Common assault (DV) -T2 by the Bankstown Local Court and sentenced to a Conditional Release Order (CRO) for 12 months on 8 December 2021.[11]
[11] Applicant’s Annexure - Bundle of Summonsed Materials (ATB), 3
The details of the offence are set out in a Police Facts Sheet.[12] In summary, on 8 November 2021 the Applicant’s wife, EH, her sister and father were at home with the Applicant. The Applicant’s daughter was asleep and when she woke up she needed her nappy changed. The Applicant told EH that she should change their daughter’s nappy as he had worked night shift and was too tired. EH told the Applicant to do it anyway as they were a team. The Police Facts state:
[EH] was standing in the bathroom with her daughter at the time, and the [Applicant] was standing in the doorway. [EH’s sister] was standing directly behind the [Applicant] in the hallway. [EH] and [the Applicant] began to argue over who was going to change the nappy. [EH] has gone to leave the bathroom and [the Applicant] has slapped [EH] to her right and left cheek with his hand and started swearing and demanding a divorce.
The slaps caused [EH] immediate pain and she began to cry. [EH’s sister] saw [the Applicant] slap [EH]. [EH’s father] was nearby in the kitchen and has heard the commotion and run to the hallway. [EH’s father] pulled [the Applicant] away from the [EH]. [The Applicant] continued to scream and then grabbed at his shirt and ripped it in half.
[The Applicant] called police and waited out the front for them to arrive. [The Applicant] told police the victim and her family have attacked him, causing his shirt to rip…[13]
[errors in original]
[12] ATB/5
[13] ATB/6
When he was placed under arrest, the Applicant was asked if he had slapped his wife, to which he replied ‘no, she attacked me.’ During a recorded interview the Applicant denied having assaulted EH and maintained she, her sister and her father had assaulted him.[14]
[14] ATB/7
The Applicant appeared in the Bankstown Local Court where he was sentenced to a CRO for 12 months on 8 December 2021.[15] The Applicant also had an Apprehended Domestic Violence Order (ADVO) taken out against him. That order is still current and set to expire on 17 November 2023.[16]
[15] ATB/8
[16] ATB/24
The Applicant’s evidence
The Applicant does not dispute having committed the offence and acknowledges he initially denied having done so. In a statutory declaration dated 16 February 2023 he expresses remorse for his offending and states that he and his wife now resolve issues between them peacefully.
At the hearing the Applicant was questioned about the circumstances of the offending which he said occurred because of a misunderstanding between he and his wife. He recalled intending to leave the house when his wife grabbed him and pulled him because she did not want him to leave. The Applicant and his wife began to push and shove each other during which his shirt was torn. This prompted the Applicant to call police because those present were becoming angry and he wanted everyone to calm down.
The Applicant maintains he did not slap EH but concedes his hand may have made contact with her face during the pushing and shoving that was taking place. When asked about the details of the offence as they are recorded in the police facts, the Applicant said he was not present when the facts sheet was written and stood by the version of events he gave in his oral evidence.
Asked why he thought the police facts record him having slapped his wife, the Applicant said he could not be sure but recalled the officers went inside the house while he waited outside. The police facts record the Applicant was responsible for ripping his own shirt, but the Applicant maintains he did not do so and told this to police.
It was the Applicant’s evidence that although he took issue with some aspects of the offending recorded in the police facts, he accepts the offending happened and that it was a serious matter. He said he had apologised for his mistakes and that it will not happen again.
In his February 2023 statutory declaration the Applicant explained that not being granted citizenship has caused him considerable distress:
I am a permanent resident and stateless refugee in Australia. I can obtain Convention Travel Document but it does not give me right to travel to Myanmar.
I lodged my citizenship in 2015 and the Minister took 7 years to finalize my application. I felt very hurt when it was taking seven years to process my Citizenship application because I was losing my friends and family members all the time and unable to see them before they passed. If I have to wait another five to seven years for processing another application then my family may all be gone.
My parents passed away and I have siblings remaining in Myanmar. I have not seen them since I left Myanmar around Many Rohingyas got chances to travel to Yangon with permission for medical treatments. I could have travelled to Yangon, Myanmar and see my remaining if I had an Australian citizenship and passport. I lost many extended relatives during these years in Myanmar. Some were during Rohingya genocide in 2017 in Myanmar and some are during COVID-19 pandemic. If I do not receive the Australian citizenship for a number of further years due to my offending which happened in 2021, I may not be able to see my siblings before they die.
Myanmar is going through a civil war due to the political unrest and many are losing the lives. I wish to see my remaining families before they die. Australian citizenship is the only thing that will allow me to travel to Myanmar and see them with some protection afforded by the Australian Government and also respect by Myanmar authorities of Australian citizenship.
[errors in original]
Asked to clarify why he was unable to travel to Myanmar with a travel document, the Applicant explained that he feared for his safety should he travel to Myanmar on a Titre de Voyage. He said that other Myanmar people residing in Australia had advised him not to travel to Myanmar without an Australian passport as doing so is unsafe. The Applicant also claims to have been advised not to travel to Myanmar with a Titre de Voyage by a ‘case manager’, but did not provide any further detail.
The written submission made on behalf of the Applicant states that he ‘was affected by the genocide in Myanmar’ because of where he was born and that he ‘recognises that as a genocide survivor he should not cause suffering to his wife and family.’[17] The Applicant is sorry for allowing his ‘anxiety [to come] out against his wife’ and ‘does not seek to justify his behaviour but does seek to understand what occurred’ so as not to repeat his offending.[18]
[17] Applicant’s Statement of Facts, Issues and Contentions (ASFIC), [13]
[18] ASFIC, [14]
The Applicant has not been able to visit his parents’ graves or see his two brother and uncle who remain in Myanmar. Should he be successful in his application for citizenship, he plans to travel to Myanmar and pay for his relatives to travel to a part of the country where they can meet safely.
Unless he is able to obtain Australian citizenship and an Australian passport, the Applicant fears he may not see his siblings again. He is distressed at the prospect of making a new application for citizenship as if it were to take as long to process as his first application, it may be too late for him to reunite with his remaining family members.
Rehabilitation
In a report dated 26 July 2022 psychologist Medhat Metry confirms having treated the Applicant following referral from his general practitioner. Mr Metry writes that the Applicant first saw him on 10 June 2022. At the time of writing, the Applicant had seen Mr Metry for a total of ‘six psychological therapy sessions in the form of cognitive behavioural therapy.’ Mr Metry confirms having focused on helping the Applicant recognise alternative response to anger, stress management strategies, effective communication, maintaining self-control and problem solving techniques.
Mr Metry reports the Applicant was cooperative and ‘committed to therapy’ and expressed remorse for his offending behaviour during the sessions.
When asked about the therapy with Mr Metry, the Applicant’s evidence was he sought treatment after the offending because he wanted to understand his behaviour and was experiencing anxiety at the time. He was also concerned as he was not able to see his family in the weeks after the offending. The treatment he received from Mr Metry focused on what had happened leading up to the offence and how he might react differently to similar situations in the future.
The Applicant reported not having been violent since the offending and that he and his wife had not argued. If his children are shouting or crying he now attends to them himself. The Applicant gave evidence that he and his wife have now had a third child together, they are happy after 12 years of marriage, and he enjoys a good relationship with his wife’s parents. When he is stressed, the Applicant says he prays. When there is a dispute he does not reply immediately but keeps quiet, and may go outside to calm down before returning to try and resolve the dispute.
Evidence of EH, the Applicant’s wife
EH is the Applicant’s wife and the victim of his offending. In evidence is a statutory declaration dated 17 February 2023 in which she confirms the offence was an isolated incident of violence. She writes that she and the Applicant ‘are in a loving relationship.’ EH also gave evidence at the hearing in support of her husband. EH confirmed that the offence was the only time the Applicant had been violent towards her.
The Provisional ADVO dated 17 November 2021 records that there had not been any prior incidents of domestic violence between the Applicant and EH, but the application records EH told police the Applicant had hit her in the head in 2017.[19] In her statutory declaration EH wrote she did not recall what she told police after the 2021 incident as she was ‘in shock at the time.’ She recalls the Applicant pushed her on the shoulder in 2017 and speculates that there may have been a misunderstanding as there was no interpreter present when she was interviewed by police. She is adamant that he ‘did not hit [her] on the head.’[20]
[19] ATB/21
[20] EH’s Statement dated 17 February 2023, [6] – [7]
EH gave evidence the Applicant is supportive of her and helps care for their children. In her statement EH writes in part:
Since the ADVO [the Applicant] and I have had only small disagreements. We haven't gotten into a fight. Usually when there is a disagreement, he leaves the house to prayer or meet a friend instead of continuing with the argument.
My husband is very respectful to me apart from those two incidents. He is not an abusive husband.
I feel very sorry for him now that he is facing issues with the Depart of Home Affairs for his citizenship.
He has not seen his siblings for decades. He cannot make any plan for the future.
He told me that he cannot travel freely with the Australian convention travel document. Therefore, he is waiting his Australian citizenship to be approved.
My husband is the most important person for our family and children. If he breaks down psychologically due to these prolong issues, I am very concerned that my children will suffer as well.[21]
[errors in original]
[21] EH’s Statement dated 17 February 2023, [14] – [19]
Character references
Eddie Bravadra has worked with the Applicant for nearly two years and has found the Applicant to be calm and responsible. In a statutory declaration dated 20 February 2023, he writes that he is aware of the Applicant having assaulted his wife, which he considers out of character. Mr Bravadra also observed the Applicant speaks to his wife and children every day and tells him how much he loves them.
Jawat Kabir is a case worker at an organisation which provides settlement services to newly arrived migrants. In a statutory declaration dated 7 March 2023, Mr Kabir acknowledges the Applicant’s offending and rehabilitation. The Applicant and Mr Kabir first met as students at the same secondary school, and he has experienced the Applicant as a kind and hardworking individual.

Aziz Alam writes in a statutory declaration dated 6 March 2023 that he has known the Applicant since 2010. He is aware of his offending which he considers was out of character. Mr Alam also notes the Applicant’s efforts at rehabilitation.
CONSIDERATION
I am required to make a determination regarding the Applicant’s character based on the evidence before the Tribunal. CPI 15 provides a framework for assessing an applicant under the ‘good character’ provisions which includes considering all relevant information and making a full assessment of the facts of a case including relevant mitigating factors.
At the time of the delegates decision, the delegate was prohibited from granting citizenship by operation of paragraph 24(6)(f) of the Act as the Applicant was at that time subject to a CRO. As the CRO has now expired, the prohibition no longer applies and the sole issue to be determined is whether the Applicant is of good character.
The Applicant initially denied the offending for which he was convicted and for which he now accepts responsibility. Though he maintains some detail recorded in the police facts is inaccurate, I do not consider this indicates a lack of remorse or insight on his part.
Nonetheless, Common assault (DV) is a serious offence and the ADVO which was taken out against the Applicant does not expire until 17 November 2023. Domestic violence cannot be treated lightly and the Instructions identify offending of this nature as serious. In Prasad and Minister for Immigration[22] Deputy President Constance stated at [32]:
Domestic violence, in any form and in any circumstances, is fundamentally inconsistent with the standard of behaviour expected by the Australian community.
[22] [2017] AATA 1506
The nature of the Applicant’s offending conduct weighs heavily against a finding of good character.[23]
[23] Sharma and Minister for Immigration and Border Protection, Re [2015] AATA 608, [37]
The Applicant recognises the harm caused by his offending. He gave evidence that his offending and the prospect of being separated from his family motivated him to seek treatment from Mr Metry. However, he first saw Mr Metry seven months after the offending – and one month after his citizenship application was refused – which indicates his desire to obtain citizenship may have been a motivating factor for seeking treatment. Nonetheless, based on Mr Metry’s report I accept the Applicant has engaged constructively in treatment and his efforts at rehabilitation are sincere.
The Applicant also enjoys the support of his wife, who has forgiven him for the offending and observed a positive change in relation to their shared responsibilities.
When considering an applicant’s character, the Instructions identify the length of time since an offence as a potential mitigating factor. The Respondent contends the Tribunal cannot be satisfied that the Applicant is of good character given the short time that has passed since the offence and his obligation to the Court expired.[24]
[24] RSFIC, [25]
In considering the length of time since the offence, I am mindful that the Applicant applied for citizenship in September 2015. There is no indication his application progressed until April 2022 when he was invited to comment on his offending. The Minister’s representative also did not offer an explanation for the protracted processing of his application. Based on the evidence before the Tribunal, it does not appear his application would have been refused either on character grounds or the operation of subsection 24(6) had it been processed at any time in the six years between lodgement and his committing the offence.
Though limited time has passed since the offending, the Applicant has resided in Australia since 2011, and the November 2021 offending was an isolated incident. It does not indicate a pattern of criminal behaviour or persistent disregard for the law and I am satisfied the offence was out of character despite having occurred relatively recently.[25]
[25] T3/90
CONCLUSION
I am satisfied that the Applicant’s offending was an isolated incident of domestic violence at the lower end of the scale in terms of seriousness. I accept the Applicant’s remorse is genuine and he has taken steps to rehabilitate himself to avoid further such incidents.
Outside of the offence, the Applicant and his wife gave evidence of having a close and supportive relationship and a growing family. The Applicant has also made a positive contribution to the community through his stable full-time employment and his referees speak well of him.
Having regard to the Instructions and the evidence, on balance I am positively satisfied that the Applicant is of good character within the meaning of the Act.
DECISION
The reviewable decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse the Applicant’s application for citizenship is set aside. The matter is remitted for reconsideration with a finding that the Applicant is of good character withing the meaning of paragraph 21(2)(h) of the Act.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of

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Associate
Dated: 1 August 2023

Date of hearing: 2 May 2023

Solicitors for the Applicant: Mr D. Taylor, Sydney West Migration Ltd

Solicitors for the Respondent: Mr I. Duldig, Clayton Utz

Date of hearing:	2 May 2023
Solicitors for the Applicant:	Mr D. Taylor, Sydney West Migration Ltd
Solicitors for the Respondent:	Mr I. Duldig, Clayton Utz