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

HBJF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 5187 (23 December 2020)
Division:GENERAL DIVISION
File Number(s): 2019/6278
Re:HBJF
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:23 December 2020
Place:Sydney

The reviewable decision is set aside. In substitution, the decision is made that the Applicant is a person of good character at the time of the decision on the application pursuant to s 21(2)(h) of the Australian Citizenship Act 2007 (Cth). The matter is remitted for reconsideration in accordance with this decision.
............................[sgd].........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
CITZENSHIP – application for citizenship by conferral – eligibility – refusal on character grounds – whether the Applicant was of good character at the time of the decision on the application for citizenship – decision under review set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21, 24
Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
Migration Act 1958 (Cth) s 501
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Policy Statement (27 November 2020)
Revised Citizenship Procedural Instructions (1 January 2019)
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
23 December 2020
Introduction

On 24 September 2019, a delegate of the Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the delegate), refused the Applicant’s application for Australian citizenship by conferral because the delegate was not satisfied that she was a person of good character. That is the decision being reviewed.
The issue to be decided is whether the Applicant is a person of good character at the time of the decision on the application.[1]
[1] T9/85.
The factual background
The following facts are not in dispute.
The Applicant was born in August 1992 and is 28 years of age.
She arrived in Australia as an unaccompanied student in September 2009, at the age of just 17. She graduated from university with a Bachelor of Business Administration & Associate Degree in Hospitality Management.
On 4 October 2016, the Applicant applied for a permanent visa, Employer Nomination (subclass 186).
On 21 October 2016, the Applicant (then aged 24) and her then partner, X, were involved in an altercation during which the Applicant bit X. She was charged with one count of common assault after she attended the local police station to report X for assaulting her.
On 26 October 2016, the Applicant attended the Local Court. She was unrepresented and pleaded guilty to one count of common assault (DV)-T2. She was convicted and sentenced to a good behaviour bond for 18 months pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which ended on 25 April 2018. An Apprehended Domestic Violence Order (ADVO) was issued by the Local Court for a period of 12 months which identified X as a “protected person”.
On 2 May 2017, the Respondent granted the Applicant a permanent visa.
On 8 September 2017 and 4 March 2018, the Applicant incorrectly answered the question on her incoming passenger card which asked if she had “any criminal conviction/s” by not declaring the conviction.[2]
[2] T6/54.
On 25 August 2018, the Applicant applied for Australian citizenship by conferral. She disclosed that she had been involved in a violent relationship with her ex-boyfriend and that she had been charged with assault for biting him on the shoulder and pleaded guilty to that offence.
On 17 July 2019, the delegate wrote to the Applicant to inform her that there was information before the Department of Home Affairs (the Department) indicating that she might not be of good character (the procedural fairness letter).[3] The procedural fairness letter referred to the Applicant’s 26 October 2016 conviction for common assault ((DV)-T2)), for which she was sentenced to an 18 month good behaviour bond. The procedural fairness letter also noted that the Applicant had failed to disclose the offence on incoming passenger cards when she entered Australia on 8 September 2017 and 4 March 2018, which gave rise to the issue of whether she provided false or deceptive information to the Department.[4]
[3] T6/52.
[4] T6/54.
On 9 August 2019, the Applicant provided to the Department her statutory declaration made on 8 August 2019,[5] two character references from friends who were ex-colleagues, A and B,[6] a letter from her employer, E,[7] and a police certificate from her country of origin dated 11 March 2016.[8] In the cover letter, she stated that she notified the immigration department of the offence when they were processing her permanent residency application.
[5] T7/61.
[6] T7/65 and T7/67.
[7] T7/69.
[8] T7/70.
The application for citizenship was refused on 24 September 2019. On 30 September 2019, the Applicant sought review of the decision in this Tribunal.
The regulatory regime
Section 24(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under s 21(2) of the Act. Pursuant to s 21(2)(h), the Minister must be satisfied that a person is of good character at the time of the Minister’s decision on the application.
The term “good character” is not defined in the Act. The term is addressed in some detail in the Australian Citizenship Policy Statement (the Policy Statement) which provides context to the Revised Citizenship Procedural Instructions (CPI).[9] The Tribunal, as the decision maker, will generally apply lawful policy unless there are cogent reasons not to do so.[10]
[9] The Policy Statement came into effect on 27 November 2020 and replaced the Citizenship Policy. The parties agreed that the Policy Statement did not change the substance of the issues and considerations before the Tribunal.
[10] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).
CPI 15 quotes the following from Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432:[11]
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 the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character. (Emphasis added.)
[11] CPI 15 - Assessing Good Character under the Citizenship Act at [4.3].
A decision maker may 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 their migration and citizenship process.[12]
[12] CPI 15 - Assessing Good Character under the Citizenship Act at [4.3].
An applicant of good character would, inter alia, respect and abide by the law in Australia, be honest, not be violent and not cause harm to others through their conduct. Further, in assessing whether an applicant is of good character, a decision maker should consider any other relevant information such as whether the applicant is responsibly employed, paying taxes, genuinely remorseful for past wrong doing, the time that has elapsed since any wrong doing, and any other relevant matter. [13]
[13] CPI 15 - Assessing Good Character under the Citizenship Act at [4.4].
CPI 15 states that decision makers can only act on the basis that the verdicts of Australian courts and any essential supporting factual findings in those verdicts are correct.[14] A conviction is correct regardless of whether the applicant maintains his or her innocence.
[14] CPI 15 - Assessing Good Character under the Citizenship Act at [4.7].
A serious offence includes crimes of violence such as assault and domestic violence. After being convicted of an offence, a significant amount of time may have to pass before a decision maker can be satisfied that an applicant is of good character.[15]
[15] CPI 15 - Assessing Good Character under the Citizenship Act at [4.7].
Knowingly presenting incorrect information or bogus documents to the Department may reflect on the person’s character. If done unknowingly there would be no ground for character concern.[16]
[16] CPI 15 - Assessing Good Character under the Citizenship Act at [4.7].
In making an assessment of character, the decision maker should look holistically at the applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.[17]
The evidence
[17] CPI 15 - Assessing Good Character under the Citizenship Act at [4.11].
Police records
The Police Facts Sheet for the arrest on 21 October 2016 at 03:10 included the following:
·The Applicant and X had been in an intimate relationship about 10 to 12 months and resided together in a unit leased by the Applicant.
·On 18 October 2016, the Applicant and X were at the apartment together when the Applicant saw messages on X’s mobile phone between himself and other girls who are currently overseas. A verbal argument resulted which eventuated into a physical altercation resulting in the Applicant biting X’s right inner forearm, leaving red bruising of teeth marks and the Applicant with faint bruising and graze on her right shoulder. After the altercation the Applicant booked into a nearby hotel.
·On the evening of 21 October 2016, the Applicant went out with friends nearby where she consumed an unknown amount of intoxicating liquor. She returned to the apartment. She lay down on the floor of the main bedroom where X was sleeping in boxer shorts on the bed.
·When X awoke and attempted to help the Applicant into bed, she began to lash out yelling towards X and threw her mobile phone towards him which missed and hit the wall, smashing the screen. She bit X on the left shin and the left forearm as well as picking up a bottle that was on a table and threw it towards X, missing him. The bite marks caused redness and green bruising in the shape of top and bottom teeth marks. Large swelling was present on the left shin from the bite.
·During this altercation, X was pushing the Applicant away from him unaware of where his arms were, trying to get the Applicant to stop lashing out. After some time, she left the apartment and X saw that her house and work keys were left behind. X got dressed and followed the Applicant to give them to her the following day. The Applicant proceeded to walk to the nearby police station with X following.
·About 1:40 AM Friday, 21 October 2016, the Applicant attended the nearby police station crying uncontrollably to make a report of an assault. X attended a few seconds behind her. Police separated them both and introduced themselves. Police observed the Applicant to be heavily intoxicated whereby a Domestic Violence Evidence in Chief recording was unable to be fairly utilised. Police obtained a version from the Applicant.
·Initially police arrested and cautioned X and questioned him in relation to an allegation of assault. During interview the multiple bite marks and scratches on his body were revealed and X stated that an altercation had occurred between them however he had no intentions of hurting her, instead pushing her away so she would stop biting him. Police obtained photographs of the injuries with X’s verbal consent.
·X was released from custody and refused to give any form of statement, retracted consent for police to use photographs of his injuries and pleaded for police to not take action against the accused.
·The Applicant was placed under arrest, cautioned and placed into a “Time-Out” due to intoxication.
·The Applicant was charged with Common Assault and police applied for an ADVO which was served on the Applicant whilst in custody.
Police records included an incident involving the Applicant and X in July 2016 which did not result in an arrest or charges being laid. The record set out the following. The Applicant and X had returned to their residence early in the morning after a night out drinking with friends who returned with them. The Applicant and X argued about X groping an unknown female during the outing. The Applicant was referred to as the Person In Need of Protection (PINOP). The Applicant decided that she no longer wanted to be with X and asked him to move out as she wanted to end the relationship. She was slightly intoxicated. X was well intoxicated. X would not leave and the Applicant called police who got the key from X, returned it to the Applicant, and advised X he could get his belongings the next day with police assistance if that was required. X left the location. About midday on the same day, X went to the Applicant’s workplace. He was intoxicated, emotional, and may not have slept all night. X asked for the return of the keys to the apartment which the Applicant declined. X became angry and threatened to mess up the workplace until she gave him the keys which she did. X left and the Applicant called the police station which had been involved in the earlier incident that day and advised her to get there which she did, ending her shift early. En route, the Applicant saw X in a business premises near her home and the police station. She spoke to police and police then spoke to X in the business premises. He was intoxicated and initially argumentative but handed over the keys. He went to the police station, where he was cautioned. He began crying and denied threating the Applicant in any way. The Applicant wanted no action after police explained ADVOs and potential criminal charges, especially if X’s behaviour continued. She only wanted police assistance getting her keys back and for police to attend when X collected his property. She said that X had never assaulted or threatened her. She is somewhat intimidated by his behaviour when intoxicated but is not generally afraid of him. Police accompanied the Applicant and X to the apartment and X collected his property. X left without further incident except for crying and apologising to police. X had some property left in the apartment. The Applicant would call police to attend if required when X collected them. The Applicant understood that police would follow up with her regarding the above, and to check on her welfare. Nightshift supervisors had been informed who were to follow up with the Applicant.
Police contacted the Applicant six days later. She said that X had moved out and they were taking some time apart. She was sorry for calling them, did not wish an ADVO to be taken out, expressed no fears in relation to X, and would contact police if circumstances changed.
Police records also included incidents in August and November 2013 between the Applicant and her then partner (not X). The Applicant was identified as the victim. On both occasions the Applicant and her partner had been arguing. On both occasions both said nothing physical had occurred although in the first incident a witness reported that the Applicant had kicked her partner who was trying to wipe away her tears. Neither was affected by alcohol on the second occasion. Reports of the first incident state that both were affected by alcohol.
The Applicant’s answers to questions in migration and citizenship documents
The question asked on the incoming passenger cards on 8 September 2017 and 4 March 2018, was “Do you have any criminal conviction/s?”. The Applicant ticked “NO”.
The question in the citizenship application form lodged on 25 August 2018 was:
Has the applicant been convicted of, or found guilty of offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent resident application, and any ‘spent’ convictions)?
The Applicant answered:[18]
I was involved in violent relationship with my ex boyfriend that was beating me up whenever he got intoxicated. Once I fought back (self defense) and was charged with assault as I bit his shoulder. I plead guilty because I was extremely scared, embarrassed and did not have a support of a lawyer.
[18] T3/29.
The Applicant’s evidence
The Applicant provided a statutory declaration made on 8 August 2019, a statement dated 14 February 2020, and gave oral evidence.
In her statutory declaration, the Applicant said the following. Her first year in Australia when she was 17, 2009, was extremely hard. She was the youngest student at university, living with a host family of strangers. She met “some amazing people” at university that helped her. She fell in love with Australia, including a beach near her home. In 2012 she lost her father to cancer which had a big effect on her. She was studying, working to pay the bills, missing home “but staying strong”. She wanted to make her mother proud. She is mostly proud of what she has achieved in Australia. There have been difficult events. In 2016 she was involved in a “toxic” relationship that almost destroyed her bright future.
My ex-boyfriend was extremely violent when intoxicated and used to beat me up on several occasions. I was too scared to sleep, I was too scared to come home, I barely ate. And one night it all exploded. I fought back that led to a court hearing.
The Applicant thought it was unfair that she had been accused of assault given that X was violent.
At that time, I was too scared, too embarrassed and too hurt so I plead guilty in court in order to quickly forget about this shocking event of my life. I chose not to have any legal support simply because I thought that this “issue” was a huge misunderstanding and will get resolved in court. I couldn’t believe it when I got given a good behaviour bond and a criminal record. Just like a punch in the face. It was the worst day of my life, I was completely in denial about how this result might impact me in the future.
The Applicant’s mother is a lawyer. The Applicant did not tell her about the plea because she was ashamed, embarrassed and did not want to disappoint her mother. She was unlucky, getting involved with the wrong man. After the court appearance, the Applicant ended the relationship, found a new apartment and decided to make changes in her life. She “successfully completed” the 18 month good behaviour bond, learned new skills, ran a half marathon and recently enrolled in a Master’s degree in Project Management. She has spoken to a psychologist provided by work and was “really into self-care/self-development books” that helped her get through the difficult period of her life in 2016.
The Applicant wanted to do good for Australia by volunteering for events and regularly contributing to charity.
In relation to the incoming immigration cards, the Applicant did not purposely answer incorrectly. She was sure the good behaviour bond had passed. She did not know. She is not a dishonest person. She has paid her taxes in Australia. She has had no other involvement with police in Australia or her country of origin.
In her February 2020 statement, the Applicant expanded on her early life in Australia, the death of her father in May 2012 after which she said “everything seemed to start to fall apart”. She was no longer supported financially by her father and busy trying to save money. Professionally she was doing well but her romantic relationships were less successful. She described a volatile relationship which began in 2013 and lasted a year which she claims resulted in her suffering an eating disorder. Her partner was very abusive verbally and they would yell at each other. A couple of times the police came to the house because neighbours called them. She wanted a clean break and moved to the other side of Sydney harbour where she met X at work. He was lovely. He reminded her of her father. They started dating in December 2015. After dinner with friends when X had drunk too much and started a fight with a security guard who refused him entry to a night club, the Applicant tried to intervene to stop him. He told her to “F… off”. The next day he was apologetic, said it would never happen again, bought the Applicant flowers, she forgave him, and they kept dating. They moved in together in about March 2016. The following month, X went to England for a month and on his return was drinking quite a lot, opening a “long neck” of Coopers before he began work at 9 am. Thereafter his behaviour was consistent. He was drunk pretty much every day. When he was drunk he was rude and verbally abusive to the Applicant, and punched or pushed her. Then he was hungover, crying, apologising and saying that he never meant it.

Around that time, the Applicant began to self-harm by cutting her arms and legs with a knife. X told her that she could not even do that properly. The Applicant told her boss at the time who gave her a telephone number to call for assistance and sent her home. The Applicant did not contact anyone.
In May 2016 a single friend of the Applicant told her that she had matched with X on Tinder. When asked, X denied it and said that he had forgotten to cancel his account. The Applicant was unsure but decided to trust X.
Around that time, the Applicant started to drink quite often and too heavily. She went out with friends after work, would drink and go to dinner. They would meet up with X or she would see him at home. It would often end in a fight. She described in detail the groping incident and what followed in July 2016 which is described above from the police records. She stated that her friends took her home and X arrived about an hour later and was violent.
The Applicant gave the following significant additional or different oral evidence.
There were occasions when X did physically assault the Applicant, including breaking a blood vessel in her eye. She did not tell the police. Every time she was upset he cried and apologised, and bought her flowers. “Normal” times with him were amazing. She could not explain why she reported X when he had not physically assaulted her but not when he had.
On 21 October 2016, the Applicant and X were fighting. She did not remember biting him. She did remember him pushing her down. She went straight to the police. X is a good talker and told them he did not do it. She did not know how serious it was when she went to court. She did not read the police facts sheet. She took the morning off work to attend court. The judge asked a question and the Applicant said a bit. She was given papers that she signed and was given papers which she does not have. She got a new apartment and then told friends. She forgot about it. She thought the bond meant that she had to be a good person. She thought conviction meant going to gaol.
The Applicant never told her friend C about X’s abuse because she knew what C would say.
The Applicant works in a small company and kept her job during COVID-19 when five employers were let go. She took a pay-cut. She was working full-time and had completed her first semester of her Master’s degree.
A’s evidence
The Applicant’s friend, A, provided a statutory declaration dated 8 August 2019. A had met the Applicant in a work setting when the Applicant was her manager. A found the Applicant a pleasure to work with and a young woman of strong ethics, hard work and great warmth. In the several years since then, their personal relationship continued. A felt very privileged to have the Applicant in her extended family of friends. She found the Applicant to be kind, compassionate, trustworthy, generous and fun, whom she valued and respected deeply.
Sharing a workplace and their growing friendship at the time, A was aware of the Applicant’s “turbulent” relationship with X and the legal dispute that ensued. It was concerning to see a woman of great potential caught up in such a “destructive” situation and it was a relief to see that was in the past. Since then, A had witnessed the Applicant making wiser life choices, evolving and thriving into a whole new chapter of professional personal growth. A believed that the Applicant’s immigration declarations was a misunderstanding and genuine mistake rather than an attempt to mislead. A knew that the Applicant has much to offer Australia as a hard-working good-natured citizen.
B’s evidence
The Applicant’s friend, B, provided a statutory declaration dated 7 August 2019, an undated statement, and gave oral evidence.
B had been “great friends” with the Applicant for three and a half years, after meeting her in 2015 in a work setting where the Applicant was her manager. The 2016 incident was “out of character”. The relationship between the Applicant and X was a “turbulent” one and the Applicant suffered a lot and was regretful for what happened that night. The Applicant and B had discussed what happened and why. B knew that nothing like that would happen again. It was out of character. B did not witness that incident, but from her observations of the Applicant and her relationship with X, had no doubt that he would have provoked the Applicant. B believed alcohol was the reason the Applicant reacted and bit X.
The reason the Applicant gave incorrect information on the incoming passenger cards was because she believed the 18 month good behaviour bond was finished. The Applicant would never intentionally hide what had happened. She is a very honest person. It is important to her that she is open and candid. She has always taken complete responsibility for her actions. The Applicant is highly educated, having completed her tertiary education in Sydney and wishes to continue her education so as to contribute more to Australian society. She has a close family in her country of origin who she speaks to each week. She has made a family of many close friends and a partner in Australia who know her character well. B asked that the Applicant have the opportunity to become a citizen. She will make a positive contribution to Australia in the future.
In her undated statement, B had observed that the Applicant sought out men who were damaged or needed fixing, resulting in turbulent relationships that have taken a toll on her. In relation to the groping incident, B said that she and the Applicant left when they saw what happened. Later, X came to the apartment and screamed at the Applicant. The Applicant and B became concerned about their personal safety and threatened to call the police. They finally got X to leave. On another occasion, the Applicant called B to come and collect her from her apartment because she had a huge fight with X at a restaurant that night, it was over, and she wanted to leave. B went and collected her. X was extremely intoxicated and angry. He screamed at B and the Applicant who quickly left. X constantly messaged and called the Applicant who was extremely upset and frustrated that she could not break off the relationship without X persistently messaging and calling her to persuade her to get back with him. In addition to those instances, B witnessed X verbally and emotionally abuse the Applicant on a number of occasions at social events and at the apartment. The Applicant had also told B that X hit and pushed her on several occasions.
In her undated statement, B stated that she had seen a massive change in the Applicant over the past one and a half years. She no longer turns to alcohol for an escape. The Applicant had told her that she had started to see a psychologist. B thought that had made a tremendous difference for her. She is able to look within herself to see that it was not her fault and she has self-worth. That is reflected in her choice of new partner who is the polar opposite of X. The relationship is loving and caring.
C’s evidence
C provided a statement dated 12 February 2020 and gave oral evidence. C met the Applicant towards the end of their first trimester of study in December 2009 when the Applicant was 17 and C was 19. Both were away from home and family for the first time and they “clicked”. After the 2009/2010 summer break they lived on campus. They studied and went out together, moved into their first flat together and searched together for a job suited to the Applicant when their college offered her limited options because of her age. C gave examples of how the Applicant was loyal, stood up for C and respected, believed in and understood her. C set out from her knowledge, why she found the Applicant to be resilient, disciplined and hardworking.
C described why they had fallen out towards the end of their studies and C instigated moving out to live separately. She described her knowledge of the Applicant’s relationship with a partner which began before graduation in 2012 and continued afterwards. C remembered he could be quite moody and abrupt at work sometimes, especially with the Applicant. C understood that the relationship was volatile and they argued a lot. After the relationship ended, the Applicant told C of her partner’s degrading behaviour towards here, including telling her that she was fat in front of other people. C formed the view that when the Applicant was in love and believed that she was loved, she would not give up trying to make it work, even if she suffered.
After the Applicant moved across the harbour, they made an effort to see each other and their relationship had recovered, to the extent that C stayed with the Applicant when she had some personal issues. C thought X seemed nice enough but did not spend much time with them. The Applicant “was head over heels and described him as a gentle person”. As the relationship progressed, C became aware that it grew more volatile, mainly due to X starting arguments and being demanding when drunk, then apologising profusely the next day. The Applicant knew C did not think it was “okay” but could count on C, whatever happened. C became aware after major incidents including X texting other women, inappropriately touching another woman at dinner with the Applicant and the arguments that led to the Applicant’s arrest.
C thought the Applicant was drinking too much at that time. In C’s opinion, the Applicant was not getting her involved “in real time” because C would “kick up a stink”. The Applicant’s loyalty, dedication, trust, passion and love for people were getting her into trouble because they were directed at the wrong person “and devastatingly brought the worst out of her when she fought back after trying to fix things for so long”. When the Applicant told C about the court appointment, C told her that her relationship with X had to end or C would not know how to keep being supportive. C felt that by this point the Applicant knew “this chapter had to close” and cut ties with X quickly after that.
In C’s opinion, the Applicant is defined by her strength to overcome the adversities in her life without any family close by, and her desire and practice to become a better person.
E’s evidence
The Applicant’s employer, E, is the managing director of a software company. In a letter dated 17 July 2019, E wrote the following. He has known the Applicant since August 2018 when he interviewed her to join the company. She is a high-performing, highly motivated and constantly improving member of the team. She is very reliable and proactive and the heart and soul of what happens in the workplace socially, organising social events and including everyone. There was no mention of any knowledge of the incident which led to the common assault charge.
E gave the following significant additional or different oral evidence. He confirmed the Applicant’s evidence about choosing to keep her employed when redundancies were made. She had called him to keep one of the other’s on and make her redundant instead but he did not. She does a great job. The Applicant had told him about her criminal conviction when she did not get her citizenship at the end of last year. He had seen a document about her coming to Australia, studying, struggling in two abusive relationships, the second involving alcohol on both sides. She was quite open about it. She moved into a different career and he hired her. He was aware of some sort of drunken fight, bite marks and her then partner was the victim. She was charged and he went free.
P’s evidence
The Applicant’s current partner, P, provided a statement dated 13 February 2020 and gave oral evidence. He met the Applicant in about 2017 when a work colleague who had worked with the Applicant contacted her to do some work. After a few months P and the Applicant started going out after work and enjoyed a few too many drinks together. They started dating. The Applicant was not looking after herself, drank and smoke too much, had no self esteem, did not eat much, and was really skinny.
As they got to know each other, the Applicant told him about herself. Her father had been very strict and wanted her to do well in life. He decided to send her to Sydney to study when she was 17 years old. She did not speak English well, lived with a family she did not know, and had to find friends, learn to speak English well, and be a good student, while missing her family, friends and culture. He described his understanding of her relationship with X who was a violent person while drunk and not very trustful. Once, they both had too much to drink, argued, and he was violent again and the Applicant bit him. She went to court and was given a good behaviour bond. She had no support from family, no access to lawyers, was working in a very stressful environment and drank too much outside work. She did not think “it was a big deal” and pleaded guilty because she did bite her then partner to defend herself. Even after hearing the story a few times, it did not seem to be a serious crime to P.
P never saw the Applicant as a violent person or as a criminal. She is a caring person. They started to change their habits, cooking more often together and exercising. A year later the Applicant did the Sydney half marathon and the City to Surf race. She left the hospitality industry, stopped smoking, started to eat healthily, planned for the future, thought about studying a master’s degree and applying for citizenship. They did not think the kind of offence stayed on file or that it was a conviction. They checked each other’s arrival card when returning from a trip to Thailand. He did not think she would have to tick the criminal conviction.
P described the Applicant’s healthy lifestyle. He described her as caring, honest and supportive.
Psychological report
A clinical psychologist provided a report dated 10 February 2020 and gave oral evidence. The Applicant was referred to the psychologist in November 2019 by her general practitioner to address her sleep difficulties over the previous 12 months. The psychologist set out the Applicant’s personal history, history of alcohol abuse, psychological problems, including an eating disorder during her first intimate post graduation relationship, self harm, and behaviour leading to the 2016 conviction. The psychologist then considered the Applicant’s current functioning, psychological treatment and formal test results.
The psychologist concluded:
It is the author’s opinion that the risk of [the Applicant] reoffending is extremely low. She has addressed a number of factors that contributed to her emotional dysregulation (particularly her drinking), is now leading a healthy lifestyle and continues to work on her mental health.
During her oral evidence, the psychologist said that the Applicant’s sleep difficulties arose from her anxiety about her citizenship application and how badly she had handled the court proceedings. The Applicant has a tendency to idealise things and minimise things. She has a tendency to hope things will go away, to go to court, get it out of the way, and avoid discomfort. Her substance abuse led the Applicant to being unable to regulate her emotions and behaviour. She believes the Applicant can now regulate her emotions. She is still quite a reactive person but has strategies to manage her emotions. Her stable relationship has allowed that.
In cross-examination, the psychologist said that the Applicant’s version of events were not taken into account and nor was the domestic violence history. She had seen earlier police reports. She was asked to talk about her psychological state rather than refer to documents. She had taken into account the Applicant’s attitude, including that she was ashamed of her alcohol abuse, cutting, and long term domestic violence relationship.
In summary, the incident was a combination of factors: long term domestic violence of which the Applicant was the victim, and alcohol abuse. Without that combination, there was not a risk of reoffending. Domestic violence can be emotional, financial and/or physical.
The Respondent’s arguments
The Respondent argued that the Applicant is not a person of good character for the following reasons. It is serious and significant that the Applicant has committed a serious domestic violence crime but is blaming the victim. Despite the victim not wanting to press charges, the police pursued the matter. A person of good character would be remorseful. She is well-educated and the daughter of lawyers. She did not understand the seriousness of the domestic violence offence nor appreciate the seriousness of the court process. She did not bother to read the bond which included the word “convicted”. She has insufficient respect for the court processes. A person of good character would have taken steps to understand the court process and court documents. The Respondent argued that the character references and psychologist’s report were given without full knowledge of the facts in the police Facts Sheet and therefore the seriousness of the offence. Therefore, less weight should be given to that evidence. The Applicant’s lack of remorse reflects a significant risk of reoffending. She regrets the relationship and not leaving X but not the offence. Police records show that she said she was never a victim of domestic violence. Finally, the Tribunal cannot conclude that the Applicant was the victim of domestic violence without independent corroborative evidence.
The Respondent argued that the Applicant’s answers in the incoming passenger cards were unacceptable because they reflect that she did not make the effort to understand the bond which included the word “convicted” and pointed out that the good character test in s 501 of the Migration Act is not the same as the test in the Citizenship Act.
Consequently, the Respondent argued that I cannot be satisfied that she is of good character.
Consideration
The Applicant is 28 years old and has been in Australia for 11 years. She has no criminal record in her home country and one criminal conviction recorded in Australia for common assault ((DV)-T2)) committed on 21 October 2016, more than four years ago. The Applicant attended court on 26 October 2016 without legal representation. She pleaded guilty. The magistrate convicted the Applicant for her first offence and imposed an 18 month good behaviour bond which reflects the seriousness with which the magistrate regarded the offence. The bond ended on 25 April 2018. She did not breach the bond. An ADVO was issued to protect X for 12 months. She did not breach the ADVO.
I accept that the magistrate took into account the police facts set out at [24]. It is not clear what, if any, matters the Applicant raised when she pleaded guilty. There are no sentencing remarks in evidence.
My task is to consider the Applicant’s “enduring moral qualities” including the “characteristics which have been demonstrated over a very long period of time”.[19] The evidence of A, B, C, E and P show that the Applicant has demonstrated characteristics that show she was a person of good character before and is now, four years after she committed the offence on 21 October 2016.
[19] CPI 15 – Assessing Good Character under the Citizenship Act which cites Irving v Minister Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422.
The police reports of July 2016 and the evidence of B corroborate the Applicant’s claims that she was subjected to domestic violence when X was intoxicated. B’s account of two incidents when she left X’s presence because she felt intimidated by his behaviour when intoxicated corroborates the Applicant’s evidence. That no-one other than the Applicant and X was present when he physically abused her is not evidence that it did not happen. That the Applicant told police that no threats were made or an assault occurred and did not wish to pursue ADVO’s in relation to the July 2016 incidents has to be understood in the context that she was in an abusive relationship and the abuse occurred when X was intoxicated. She did not wish to cause him harm. The evidence of A is contemporaneous corroborative evidence that the relationship was “turbulent” and “destructive” of the Applicant. C’s evidence and the Police incident reports in relation to the July incidents corroborate the Applicant’s evidence that X was argumentative when drunk and apologetic the next day when sober. I accept the Applicant’s account that she was subjected to domestic abuse during the relationship with X.

The Applicant was very intoxicated when she committed the offence. She did not remember biting X. She did remember him pushing her down. She had been subjected to domestic abuse during the relationship. She went straight to the police. The Applicant has demonstrated by her subsequent actions that she acknowledges her culpability and regrets both the circumstances that culminated in the offence, including her heavy drinking, and the offence itself.
She pleaded guilty. She ended the relationship with X, left the hospitality industry where drinking alcohol was prevalent and moved to one where it is not, has pursued a healthy lifestyle, including reducing her alcohol consumption, and has been in a healthy stable relationship for three years. She is receiving psychological treatment. She has made positive changes to her life to ensure that she does not make another such mistake. She has shown genuine remorse for the offence.
The Applicant did not intend to deceive the Department when she did not tick “yes” to the question on the incoming passenger cards about convictions. I accept her evidence that she thought that “conviction” meant going to gaol. English is not the Applicant’s first language. She had had no previous experience of the criminal law in Australia or in her home country. She did not have legal representation when she pleaded guilty. She is not a lawyer. She pleaded guilty and was sentenced to a good behaviour bond. She did not understand the effect of her pleading guilty would have on her life until her application for citizenship was refused.
The Applicant has studied hard, and is again studying hard, and has been a hard working productive tax paying member of the Australian community for over ten years.
The Applicant has demonstrated the enduring moral qualities of a person of good character before the offence and during the four years since the offence. It is her only offence. It was out of character. Four years has been a sufficient period of time to demonstrate that is the case. The Applicant is a person of good character at the time of the decision on the application pursuant to s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
Decision
The reviewable decision is set aside. In substitution, the decision is made that the Applicant is a person of good character at the time of the decision on the application pursuant to s 21(2)(h) of the Australian Citizenship Act 2007 (Cth). The matter is remitted for reconsideration in accordance with this decision.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.............................[sgd]...........................................
Associate
Dated: 23 December 2020

Date of hearing: 19 August 2020

Solicitors for the Applicant: Mr R Kessels, Ajuria Lawyers

Solicitors for the Respondent: Ms M Perotti, Sparke Helmore Lawyers

[2020] AATA 5187

23 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date of hearing:	19 August 2020
Solicitors for the Applicant:	Mr R Kessels, Ajuria Lawyers
Solicitors for the Respondent:	Ms M Perotti, Sparke Helmore Lawyers