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

HLJW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 689 (29 March 2021)
Division:GENERAL DIVISION
File Number(s): 2019/6856
Re:HLJW
APPLICANT

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

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:29 March 2021
Place:Sydney

The Tribunal affirms the reviewable decision.

...................................[sgd].....................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – good character requirement –– domestic violence – plea of guilty – good behaviour bond – denial of guilt – retraction by complainant – traffic offences – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21
Crimes Act 1900 (NSW) s 61
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Irving v Minister of Immigration, Local Government and Ethnic Affairs [1996] FCA 1660
VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230
SECONDARY MATERIALS
Australian Citizenship Policy Statement
Citizenship Procedural Instruction (CPI) 15 - Assessing good character under the Citizenship Act 2007
REASONS FOR DECISION
INTRODUCTION

On 29 May 2013, the Applicant was granted a Temporary Spouse class UF subclass 309 visa upon his arrival in Australia.[1] He was accompanied by his Australian wife. On 2 December 2016, he was granted a Permanent Spouse class BC subclass 100 visa, which he continues to hold.[2]
[1] T-Documents, T2, at 12.
[2] T-Documents, T2, at 12, 35; Respondent’s Statement of Facts, Issues and Contentions (RSFIC) at [4].
The Applicant’s wife is an Australian citizen. She came to Australia with her parents from Afghanistan at the age of five and was educated in Sydney. She married the Applicant in Kabul, Afghanistan on 24 April 2011. She returned to Australia after the wedding, and again travelled briefly to Afghanistan in 2013, returning with her husband on 29 May 2013.[3]
[3] Transcript, 3 November 2020, at 6.
The Applicant gained employment shortly after his arrival, stacking grocery shelves as a casual worker. After six or seven months he obtained a part time position and in roughly August 2014 he was appointed as a full-time assistant manager.[4] The couple now have three Australian born children,[5] and he owns and runs a small business, a kebab shop.[6]
[4] Transcript, 3 November 2020, at 18-19.
[5] Transcript, 3 November 2020, at 6.
[6] Transcript, 3 November 2020, at 81.
On 22 December 2017, the Applicant applied for Australian Citizenship under the Australian Citizenship Act 2007 (the Citizenship Act).[7]
[7] T-Documents, T2 at 12.
The general eligibility criteria are set out in subsection 21(2) of the Citizenship Act. Subsection 24(1A) provides that a Minister must not approve a person becoming an Australian citizen unless the person satisfies the eligibility criteria under subsection 21(2). One of the eligibility requirements is that the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.[8]
[8] Australian Citizenship Act 2007 (Cth) s 21(2)(h).
On 23 October 2019, the delegate refused the application. The delegate was not satisfied that the Applicant was of good character at the time of decision, by reason of his criminal record. The offence history relied upon by the delegate consists of six traffic offences and two offences against his wife committed in 2014. However, it appears that the traffic offences in the Applicant’s criminal record were not addressed by the delegate in their decision to refuse the application.
On 23 October 2019, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the reviewable decision.
The Applicant gave the following reasons for his application:
The decision is wrong because I am of a good character. I agree, I had made a mistake and I have fixed and am I not that person, I was going through a stressful time at the time. I have provide a number of character references which support me of being a good character, the people who have provided references for my good character are all in respectful professions both in the government and private sector. The refusal of my application is going to affect my life significantly as I would [sic] be able to do things we my family like every other normal family. I am husband and father provides for his family and wish to continue provide to them the best life they can live. By not becoming a citizen I am being disadvantaged. Can you please review my application along with all the character references and please consider my application for citizenship.[9]
[9] T-Documents, T1, at 5.
THE HEARING
The application was heard by the Tribunal on 3 November 2020.
The evidence and other material before the Tribunal consists of:
The Applicant’s materials
(a)The Applicant’s Statement of Issues, Facts and Contentions filed 8 July 2020;
(b)A Summary of Evidence with Exhibits, filed on 8 July 2020;
(c)Statutory declarations by:
(i)the Applicant, made on 25 September 2019
(ii)the Applicant’s wife, dated 26 May 2020 (Exhibit A4), and 28 September 2019
(iii)Mohammad Nader Azamy, President of the Afghan Community Support Association of NSW, dated 21 May 2020 (Exhibit A5)
(iv)Abdul Matin Halimy, friend, dated 26 May 2020 (Exhibit A6)
(v)Saleem Shah Totakil, friend, dated 27 September 2019
(vi)Daud Ghafoor, friend, dated 25 September 2019
(vii)Haroon Sharifi, friend, dated 27 September 2019
(viii)Arif Tamim Anwaryar, made on 27 September 2019
(d)An ultrasound transparency (Exhibit A7), family photos (Exhibit A9) and an unsigned franchise agreement for the applicant’s business (Exhibit A10);
(e)Submissions by the Applicant, filed on 27 May 2020; and
(f)A post-hearing submission dated 23 November 2020.
Respondent’s materials
(g)Documents tendered by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT ACT) (the T documents);
(h)A Statement of Facts Issues and Contentions dated 5 August 2020; and
(i)A post-hearing submission dated 17 November 2020.
THE OFFENCE HISTORY
The offence history is set out in Appendix A.
The traffic offences
The traffic offences consisted of three speeding offences (2013, 2016 and 2019); two offences relating to the use of a mobile phone while driving (2014, 2018); and an offence of driving with a passenger under the age of 4 months, not properly restrained (2020). These matters were dealt with by way of fine.
The domestic violence (DV) offences
The DV offences consist of two offences against the person committed in 2014: stalk/intimidate intend physical harm (domestic), and common assault (DV), for which the Applicant received an 18-month bond pursuant to subsection 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The domestic violence charges arose from the following circumstances. On Saturday 1 November 2014, at about 10 am, the Applicant and his wife had a row. She became highly emotional and called her parents. They came to pick her up and she left with them, along with her infant child. She called the police from her home and said that the Applicant had threatened her with a knife. The police attended the flat, arrested the applicant and took him to the police station where he was charged with the above offences. He was released later that afternoon.
On 18 November 2014, the Applicant attended court. He said that he was unrepresented before the magistrate and pleaded guilty through an interpreter. He said that he did not fully comprehend the proceedings.
So at that time - so my English wasn’t that good, so - and, yes, so - and the thing is I didn’t know what’s guilty, what’s not guilty, you know what I mean? And that’s - I was thinking at that time, like, okay, so it’s okay if I say anything, you know what I mean, so we want myself, my family, my wife, you know, to be happy, you know what I mean? So it wasn’t - and at that time I took the interpreter, which is from the different country. I think she was from Iran, you know. Even her language I remember - and the interpreter was a lady at the time, she said, like, guilty, not guilty, you know, and the way she said like maybe the first word, which is I took it from her mouth I said like, ‘Guilty’, you know what I mean? And I just said it, you know, and then - yes.[10]
[10] Transcript, 3 November 2020, at 27.
Both the Applicant and his wife were questioned at length about the incident.
The Applicant agreed that they had a row, and that his wife went to the balcony to calm down. He did not know why she called the police. After he had been processed at the police station, his wife’s cousin picked him up.[11] He said that “after a couple of hours, on the same day, a couple of hours we were together, and then we said sorry to each other and that’s it.”[12]
[11] Transcript, 3 November 2020, at 25.
[12] Transcript, 3 November 2020, at 25.
The Applicant’s wife said that on the day in question she decided to go shopping with her mother. There was some discussion with her husband about lunch. This escalated into a full-scale row. She said the argument took place near the kitchen. She was standing inside the kitchen. According to her evidence, when she told him she was going out, he said: “Fine, I’m just going to make my own lunch”.[13] They both continued to sound off at each other. He walked into the kitchen and got a knife to make his lunch. During the hearing, when the Applicant’s wife was asked how she felt when the Applicant pulled out the knife and started making his own lunch, she replied:
Because I was - we were having an argument and - look, we were both young, we were heated up, you know. We made a mistake and, you know, our blood was boiling, so that’s why I just thought - I was young at the time, so I just - yes.[14]
[13] Transcript, 3 November 2020, at 44.
[14] Transcript, 3 November 2020, at 44.
She states that she was very angry, but she was not afraid. At no point did he touch her or move towards her. She went to the balcony not because she was scared, but to cool off, to try to calm down. She said:
I was young. I wasn’t thinking right. So I just thought I will just go to the balcony and just calm myself down, called my mum.” [15]
[15] Transcript, 3 November 2020, at 45.
She closed but did not lock the balcony door. As to the knife, she did not now think that he intended to use it on her. She claims that she was just so angry and “dramatic” at the time.
She called her mother from the balcony. Within minutes, her mother and father, who live very close by, were there and she left with them, taking the baby. At that time the baby was four months old. She called the police within minutes of arriving at her mother’s house. She spoke for two or three minutes. She couldn’t remember what she said. She was “just angry at the time”.[16]
[16] Transcript, 3 November 2020, at 47.
In her statement to the police she said that the Applicant pulled her close while he held the kitchen knife. In her evidence to the Tribunal she denied that this occurred. She said:
I was positioned next to the knife, and as he went to get the knife I dramatically assumed that, you know, I was going to get attacked. Like, I was young, you know, made a mistake. And I didn’t realise that this mistake was going to cause [the Applicant] and myself such - you know, such a terrific bad time…
I didn’t know any better, and I didn’t realise that me calling the police - I didn’t realise the consequences. [17]
[17] Transcript, 3 November 2020, at 47.
She saw her husband later that day when he returned from the Police Station.
She was asked about his plea of guilty to the offences. She said that she was unaware that she could “withdraw her complaint” when the matter came before the magistrate.
I wasn’t aware that after us saying guilty that couple of months later you can actually say that we’re together and, you know, fix the - because I found out the consequences that my husband got after pleading guilty. So then after that I wanted to take - open up the case and fix the problem. Does that make sense?
You wanted to reopen the case, is that what you meant?---Yes, because of the - because after us saying guilty, he got a criminal record and that affected him finding a job. It’s affected us and, you know, I feel ashamed that it’s affected us but I wanted to defer the case.
I see. And so that’s what you mean by, you would withdrawn (sic) your complaint, is that right?---Yes.
So in a way, to open the case again to make the condition go away, to put it simply, is that what you meant?---Yes. Like, yes, because we’re both happily married, so - - -[18]
[18] Transcript, 3 November 2020, at 51.
She told the Tribunal the incident was “trivial”, and she would not make now make a complaint under similar circumstances.
I would not make a complaint now because it was out of character for both [the Applicant] and I to get so heated up and, yes, I guess.
Have you ever been tested, and that resolved? In other words, has [the Applicant] ever done anything to you since this incident which has tested your resolve not to call the police and cause further awkwardness?---No.
Has he ever hit you?---No.
He’s never hit you or struck you or assaulted you?---No.
Has he sworn at you?---Swearing?
Yes?---No.
Are you saying that you don’t feel abused in any way, and have not felt abused since this incident?---No.
…
Did your parents encourage you to call the police?---My parents? No.
Did you tell your mother you were going to call the police before you called the police?---No, I just did it.
You were still very angry with [the Applicant]?---Yes. Yes.
So you wanted him to get in to trouble?---Wanted him to, yes. But I didn’t really know the consequences. But I just - at the time I was just very upset, very angry. I wasn’t thinking straight.
See, many women who are the victims of domestic violence subsequently withdraw their complaints, in order to protect their husbands or their families. That’s a very common occurrence. Are you one of those women…?---No. No.[19]
[19] Transcript, 3 November 2020, at 53.
She said that there were no issues with violence in her relationship with the Applicant.[20] They have three children now.[21] She hoped to be able to cease working soon and look after the children full time and said that she would be financially dependent on her husband.[22]
[20] Transcript, 3 November 2020, at 52.
[21] Transcript, 3 November 2020, at 53.
[22] Transcript, 3 November 2020, at 54.
The case presented by the Applicant, and supported by his wife, is that the row was a minor domestic disagreement and that calling the police was an overreaction. There is no other testimony before the Tribunal.
The Police Notes suggest a different picture:
The accused… and victim … have been married for the past four years. Due to this relationship they share one child… About 10.0am on Saturday 1^st November 2014, the victim has started to get herself ready to attend the shops with her mother. The victim was cleaning the house and gathering items for their child. The victim has asked the accused if he could make his own lunch for the day. The accused refused to cook his own lunch and the victim has agreed to prepare his lunch prior to leaving the house. The accused had then started to abuse and insult the victim while seated on the couch. The victim has asked the accused to stop screaming and abusing her. OFFENCE 1: ASSAULT. At this point, the victim was standing in the kitchen. The accused has become upset and walked over toward the victim. The accused has taken a knife out of the block, stored on the kitchen bench. The accused has grabbed the victim with his left hand around the back of her neck and pulled her closer to him. OFFENCE 2: INTIMIDATION. The accused held the knife in close proximity to the victims neck (did not touch the neck of the victim) and said “I am going to start stabbing you” (in Afghanistan).The victim has started to scream which resulted in the accused letting go of the victim. The victim has remained on the balcony separating herself from the accused. The victim has then left the location with their son… About 12.30pm, Police attended the location and spoke to the victim via telephone where the aforementioned version was disclosed. The accused was arrested and cautioned with all the protocols of LEPRA 2002 adhered to. Police have conveyed the accused to [the] Police station and a statement was obtained from the victim. Police have ERISP interviewed the accused where he denies threatening nor grabbing hold of the victim. The accused is now before the court.[23]
[23] Exhibits to Summary of Evidence, A2.
The Applicant’s representative asked the Tribunal to dismiss this account, in light of the evidence of both the Applicant and his wife.
LEGISLATIVE AND POLICY FRAMEWORK
The issue for determination by the Tribunal is whether the applicant meets the good character requirement in paragraph 21(2)(h) of the Act. This is to be assessed at the time of the Tribunal decision.[24]
[24] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [3]; VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 at [20].
It is well established that for the purposes of assessing “good character" under the Citizenship Act, the words refer to the “enduring moral qualities of a person”.[25]
[25] Irving v Minister for Immigration, Local Government and Ethic Affairs (1996] 68 FCR 422, at 431-432.
I note the relevance of the Australian Citizenship Policy Statement and Citizenship Procedural Instruction (CPI) 15 - Assessing good character under the Citizenship Act 2007 (the Instruction), the latter of which states, under the heading “Procedural Instruction”:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
·consider any character issues that arise on the facts of a case;
·consider all relevant information;
·guard against bias;
·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
·be mindful that a person who may not have been of good character can become a person of good character;
·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.
The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case. This Instruction provides guidance to decision-makers but it cannot fetter any statutory discretion conferred by the Act.
[emphasis added]
Paragraph 4.3 of the Instruction provides:
4.3 What is good character
Definition
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
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.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
·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.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
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.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.
[emphasis added]

Paragraph 4.4 of the Instruction provides:
4.4 An applicant who is of good character
An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or
oother material deception during visa and citizenship applications;
oevading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
oknowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
oconcealing criminal convictions;
ofraud against the Commonwealth such as tax fraud or Centrelink fraud;
ogiving false names and/or addresses to police;
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.
[emphasis added]
Paragraph 4.7 of the Instruction sets out a non-exhaustive range of factors that a decision-maker may take into account in determining whether a person is of good character. It is stressed that the decision-maker must take into account all the relevant facts of the case.
Paragraph 4.7 also refers to the assessment of the relative seriousness of the offending.
Assessing the relative seriousness of the offence
·Consider the length of the sentence. Longer sentences carry more weight on a person’s character.
·Are there any ongoing obligations such as a good behaviour bond? …
·Carefully consider sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing. Decision-makers can obtain sentencing information by contacting the Criminal Registrar of the relevant court. Parole reports may also contain useful information…
·It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, OMCGs and youth gangs.
Were there victims of the offence? Were they children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant? [emphasis added].
CONSIDERATION
I note the terms of the Instruction that:
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case.
The evidence in the case suggests that the Applicant is a hard-working family man who is adjusting well to life in Australia. He has apologised to his wife for the 2014 incident and, according to their evidence, they have a successful marriage. Two more children have been born since, and there is no evidence of any repetition. The Applicant has provided references from friends and family members including his brother in law who is a police officer. Why, after seven years, should he not be entitled to be regarded as of good character in his citizenship application?
I note that in light of his achievements since arriving in Australia, and his personal references, he would be presumptively entitled to a finding of good character. I do not think the six traffic offences by themselves spread over such a long period would bar the Applicant from citizenship. I recognise that Australia’s strict road rules provide a particular challenge to new migrants, especially in the congested but closely monitored city of Sydney. But when the traffic offences are combined with the domestic violence offences, the question to be determined is a more difficult one.
The existence of the DV offences cast a long shadow over his character. Considerable time was spent discussing whether it is open to the Tribunal to make findings (specifically the alleged use by him of a knife with which to threaten her) which cast doubt on the factual basis of the convictions which resulted from his guilty pleas. Upon reflection, I do not think it is necessary to journey too far down that unpaved road, although I thank the representatives for their additional submissions, from which I have derived assistance.
The Applicant’s solicitor noted that there was no evidence before the Tribunal that the offences had occurred as stated in the Police Statement of Facts. I accept that the Police Facts are hearsay and have not been tested in a contested criminal trial. However, neither party sought to deny the essential facts underpinning the convictions. His behaviour was deeply problematic whether or not he threatened his wife with the kitchen knife.
The admitted facts abundantly support the convictions for assault and intimidation. Those facts include: a highly confronting row, the escalation of emotions, her sudden departure from the apartment with her parents, the removal of the infant child, the subsequent call and statement to the police, and his plea of guilty.
I attach significance to the following facts:
(a)The Applicant pleaded guilty to the offences. There is no evidence that he went to court 18 days later intending to plead not guilty. His wife speaks perfect English. It cannot be said that he was bereft of resources to understand the proceedings if he wished to plead not guilty.
(b)He showed considerable insight when he said to the Tribunal:
back right there, like, I was very ashamed for the day, you know, this thing has happened that was totally out of my character, you know, and ‑ ‑ ‑
(c)It is highly probable that he lost his temper on the occasion in question. Based on her evidence, one might easily infer that she lost her temper as well. But she was by far the more vulnerable of the two and in the early stages of motherhood.
(d)It is open to the Tribunal to find that his behaviour was sufficient to instil fear as well as anger. Within minutes of the row, his wife and child had gone, escorted by her parents to their home, and she called the police. This was not a trivial affair.
(e)I note that under section 61 of the Crimes Act 1900 (NSW) common assault is an offence punishable by a maximum of two years imprisonment.
The Applicant’s wife mentioned the difficulties caused by her husband’s convictions on several occasions. She regrets that she called the police. She seeks to downplay the seriousness of the incident. It would be unkind to suggest that she is either misleading the Tribunal or was then misleading the police. The memory of her anger and fear may well have receded somewhat. There is no evidence of repetition. However, her statement to the Police is a powerful reminder of what she felt at the time. It is hard to reconcile her statement with the evidence she gave to the Tribunal. But in the view that I take, it is not necessary for present purposes to choose between her somewhat different accounts.
I am satisfied that the Applicant’s behaviour on the occasion in question was sufficient to trigger a powerful emotional response from his wife, for which he bears primary responsibility. I am satisfied that his behaviour was both intimidating and assaultive. The row produced in her a state of high emotion where she genuinely perceived a risk to her safety and took refuge on the balcony, from where she called her parents. In objecting to her desire to go shopping with her mother on a Saturday morning, his conduct triggered what turned out to be an escalating row. His behaviour contributed substantially to the incident. Overall, his behaviour on this occasion was not that of a person of good character.
I turn then to the question whether sufficient time has elapsed for the Applicant’s good character to be redeemed. Has he shown sufficient insight and remorse to be restored to the station to which he is presumptively entitled as a hardworking, industrious migrant supporting a growing family? Would the refusal of citizenship exact too high a price?
The Applicant and his wife are members of the Australian community. In seeking to become a citizen the Applicant understands the importance of community and wishes to enjoy the benefits of citizenship. The federal and all state governments are firmly committed to reducing the incidence of domestic violence, by adopting a raft of policies aimed to protect victims of violence, mostly women and children. These measures are intended to benefit the community; for example, the legislation in NSW in 2007 dealing specifically with domestic violence: see Crimes (Domestic and Personal Violence) Act 2007 (NSW).
I note that paragraph 4.7 of the Instruction states:
It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, OMCGs and youth gangs.
Given the size and scope of the problem of family violence, it is undoubtedly appropriate to consider this issue. Family violence is a matter of central concern for all levels of government, and for the judiciary. The Tribunal is not only entitled but required to take into account relevant government initiatives in dealing with family violence.
The fact that the Applicant and his wife reconciled long ago and have expanded their family gives cause for optimism. They are unified in their desire to move forward. I am satisfied that in 2014 it could not be said that a person with his convictions was a person of good character. However, in seeking to downplay the seriousness and potential danger of the 2014 incident, I am still left with an uneasy doubt as to whether he is now a person of good character. I am not satisfied that the Applicant has a clear understanding of the nature of the problem. Regrettably, and despite his many positive attributes, I am not satisfied that sufficient time has passed, or that he has developed sufficient insight, such that it can now be said that he is a person of good character.
The Applicant is of course entitled to make a fresh application for citizenship. He would then have an opportunity to address this issue afresh. He needs to display a clear understanding of the pernicious nature of family violence, and that he is fully rehabilitated. His wife is a young mother caring for three young children. The stresses of work and life are not under any circumstances to be taken out on her or them, for that is certainly not the behaviour of a person of good character.
I am conscious of the fact that the Applicant and his wife will consider this a hard decision. But this is not merely a matter of the financial and other practical hurdles that may flow from a conviction for domestic violence. Every member of this family is entitled to feel safe in their home. That is a basic human right.
Finally, I have no doubt that the decision by the Applicant’s wife to call the police on the occasion in question was both an appropriate and sensible one, especially given the presence of their four-month-old child in the house.
CONCLUSION
For these reasons the Tribunal affirms the reviewable decision.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

...................................[sgd].....................................
Associate
Dated: 29 March 2021

Date(s) of hearing: 3 November 2020

Date final submissions received: 24 November 2020

Counsel for the Applicant: Mr R Chia, Counsel

Solicitors for the Applicant: Ms Z Safie, Juris Australia

Solicitors for the Respondent: Mr M Gao, Australian Government Solicitor
Appendix A
Traffic offences
Documents produced under summons from NSW Roads & Maritime Services and the NSW Police reveal that the applicant has the following traffic offences recorded:
·01/11/2013: Exceed speed limit by more than 10 km/h but not more than 20 km/h whilst driving a motor vehicle
·02/12/2014: Driver use mobile phone when not permitted
·10/01/2016: Exceed speed limit by more than 20 km/h but not more than 30 km/h whilst driving a motor vehicle
·06/04/2018: Driver use mobile phone when not permitted
·01/01/2019: Exceed speed limit by not more than 10 km/h whilst driving a motor vehicle
·12/03/2020: Drive with passenger 6 months or older but less than 4 years old not restrained as prescribed

Domestic
·18/11/2014: Stalk/intimidate intend physical harm (domestic)
Bond s9: 18 months supervised NSW Probation Service not to intimidate victim
·18/11/2014: Common assault (dv)
Bond s9: 18 months supervised NSW Probation Service not to assault victim

[2021] AATA 689

29 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date(s) of hearing:	3 November 2020
Date final submissions received:	24 November 2020
Counsel for the Applicant:	Mr R Chia, Counsel
Solicitors for the Applicant:	Ms Z Safie, Juris Australia
Solicitors for the Respondent:	Mr M Gao, Australian Government Solicitor