HSXY and Minister for Immigration and Border Protection (Citizenship) - [2016] AATA 560

HSXY and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 560 (2 August 2016)

Division

GENERAL DIVISION

File Number(s)

2015/4657

Re

HSXY

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal
Senior Member A C Cotter

Date 2 August 2016

Place Brisbane
The decision under review is affirmed.

.....................[Sgd]...................................................
Senior Member A C Cotter
CATCHWORDS
CITIZENSHIP – where application for Australian citizenship refused – good character requirements – domestic violence – where limited mitigating factors – where inconsistent evidence – decision under review affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21.
CASES
Alothman and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 644
Assafiri v Minister for Immigration and Border Protection [2014] AATA 35
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Karim and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 916
Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608
SECONDARY MATERIALS
Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016.
Department of Immigration and Border Protection (Cth), Australian Citizenship Policy, 1 June 2016.
REASONS FOR DECISION
Senior Member A C Cotter
2 August 2016
INTRODUCTION

In August 2015, the Applicant’s application for Australian citizenship was refused by a delegate of the Minister for Immigration and Border Protection. That was on the ground that the delegate was not satisfied that the Applicant met the “good character” requirement contained in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“Act”). The Applicant has sought a review of that decision by this Tribunal. For the reasons I outline below, I affirm the delegate’s decision.
BACKGROUND
The Applicant is 49 years of age. Born in Harare, Zimbabwe, he first arrived in Australia in October 2007.
He applied for citizenship by conferral on 12 November 2014.
Information obtained from a police check revealed that on 12 January 2015, the Applicant was fined $1,000.00 in the Richlands Magistrates Court for contravening a domestic violence order on 26 December 2014. No conviction was recorded.[1]
[1] Exhibit 1, T Documents, T 10, page 149, National Police History Check Results Report dated 27 February 2015.
Asked to comment on that, the Applicant confirmed that the offence related to him. He later produced a copy of the relevant Protection Order of the Richlands Magistrates Court dated 12 June 2014, which provided that he was to be of good behaviour towards his wife and was not to commit domestic violence against her. It also named his three daughters and provided that he was to be of good behaviour towards each of them and was not to commit associated domestic violence against them. The order was expressed to continue in force up to and including 12 June 2015. It noted that the Applicant was present in court when the order was made by consent and without admissions.[2]
[2] Exhibit 1, T Documents, T 14, page 182, Protection Order dated 12 June 2014.
On 17 August 2015, the Applicant’s application for citizenship was refused on the basis that the delegate was not satisfied that the Applicant was of good character for the purpose of the Act.[3]
[3] Exhibit 1, T Documents, T 2, pages 3-16, Letter from Department of Immigration and Border Protection to the Applicant dated 17 August 2015.
Before considering this matter, it is timely to reflect on the key legislative provision and how it is applied.
THE LEGISLATIVE FRAMEWORK
Section 21(2) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person meets certain listed requirements. Paragraph (h) specifies the requirement that the person “is of good character at the time of the Minister’s decision on the application”.
The words “good character” are not defined in the Act. However, it has been held that they 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”.[4] A decision about whether a person is of good character requires a “consideration of an aggregate of qualities”.[5] Further, the “enduring moral qualities “of which good character speaks “must be demonstrated objectively over a sufficient period”; how long depends on all the circumstances of the individual case.[6]
[4] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431 (Lee J).
[5] Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7] (Deputy President McDonald).
[6] Assafiri v Minister for Immigration and Border Protection [2014] AATA 35, [67] (Senior Member Toohey).
In order to provide guidance to decision makers on policy in relation to the interpretation of, and exercise of powers under, the Act, the Australian Citizenship Instructions (“ACIs”) were adopted by the Minister. Relevantly, Chapter 10 concerned character.
This matter was heard on 31 May 2016, at which time I reserved my decision. The following day, 1 June, the Respondent’s Department issued a new policy document on citizenship, the Australian Citizenship Policy (“ACP”), which replaced the policy guidance content previously provided by the ACIs. In view of that change, and the fact that the hearing proceeded on the basis of the ACIs and without any reference to the proposed ACP, I invited further submissions from the parties in relation to the implications (if any) of the introduction of the ACP.
A submission was received on behalf of the Respondent. The Applicant did not lodge any additional submission in response to my invitation. The Respondent’s submission confirmed that, notwithstanding the introduction of the ACP, the ACIs remain in force and now detail the operational instructions for decision makers; the ACP and the ACIs operate side by side as policy and operational instructions. In the event of inconsistency with respect to policy guidance, the ACP is to be preferred. The relevant provisions in the ACP relating to character are now to be found in Chapter 11. In short, the Respondent did not consider the issuance of the ACP to have any material impact on the substantive issues in this review.[7]
[7] Respondent’s submissions dated 30 June 2016, [2] to [4].
In light of the Respondent’s submissions (which accord with my own understanding of the changes) and as I was referred to relevant provisions of the ACIs during the course of the hearing, I propose, for convenience, to refer to corresponding provisions in both the ACP and the ACIs, where appropriate.
The ACP and ACIs are not binding on the Tribunal, they being a reflection of government policy. However, the Tribunal should apply the policy unless there is a cogent reason to the contrary.[8] I am unaware of any such contrary reason and therefore consider that the policy and instructions should be applied in this instance.
[8] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644-645 (Brennan J).
Adopting the meaning of “good character” mentioned above, namely of “enduring moral qualities”, the ACIs explain that “moral” in that context does not have any religious connotations. Rather, the phrase encompasses the following concepts: characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. That broad definition means that the decision maker can be satisfied that an applicant is of good character if he or she “has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes”.[9]
[9] Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10 - Character, 10.3.1.
Without purporting to be exhaustive, the ACIs sets out the characteristics that an applicant of good character would have. Relevantly, they include that the applicant:
respect and abide by the law in Australia and other countries;
be truthful and not practise deception or fraud in their dealings with the Australian Government or other governments and organisations, for example, concealment of convictions that could lead to the cancellation or refusal of citizenship; and
not be violent … and not cause harm to others through their conduct.[10]
[10] Ibid 10.3.4.
Paragraph 10.5 of the ACIs sets out a framework for making “good character” decisions. It sets out a non-exhaustive list of considerations for decision makers to take into account when assessing good character. The factors may have different weights, depending on the circumstances of the case. They relevantly include a consideration of the applicant’s behaviour as to why they might not be of good character, as well as mitigating factors and the applicant’s explanation for their behaviour.[11] In weighing up those factors, the decision maker must apply community standards rather than their own personal standards. As mentioned earlier, the decision requires the consideration of an aggregate of qualities. The decision maker “needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time”. The amount of time considered to be “lasting” or “enduring” depends on the merits of each case.[12]
CONSIDERATION
[11] Ibid 10.5.2.
[12] Ibid 10.5.4.
The incidents of domestic violence
The Applicant gave evidence at the hearing. He readily admitted that he had behaved violently towards his wife on two occasions. The first incident, on 15 May 2014, left his wife with a broken right eye socket and led to the making of the Protection Order against him. His daughters were present during the incident.[13] The second incident occurred on Boxing Day 2014, which led to the Applicant being charged with contravention of a Domestic Violence Order, for which he was fined without a conviction being recorded. The Applicant admitted kicking his wife in the legs and exchanging punches with her. Again, the three children were present during the altercation. During a scuffle, the Applicant’s wife fell on the middle daughter, pushing her into a bed and then onto the floor; the girl sustained no injuries.[14]
[13] Exhibit 9, Solicitor’s Office Report Details.
[14] Exhibit 9, Queensland Police Service Court Brief.
While no convictions were recorded against the Applicant, it is not disputed that he committed acts of domestic violence. Those acts are clearly matters relevant to the issue of the Applicant’s character; it matters not, for present purposes, that no conviction was recorded.[15] As Deputy President Constance observed in Karim and Minister for Immigration and Border Protection (Citizenship), after noting that Chapter 10.5.2 of the ACIs provides that crimes of violence (including domestic violence) are to be regarded as serious offences:
Such conduct is fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against a finding that an individual is of good character.[16]
[15] See, e.g. Alothman and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 644, [39] (Senior Member Toohey).
[16] [2015] AATA 916, [24].
It is also significant that the violence was directed towards a vulnerable person, the Applicant’s wife, and occurred in front of the couple’s children. Paragraph 10.5.2 of the ACIs includes as a relevant factor to be considered whether there were victims of the offence and in particular, whether the victims were vulnerable people, like children or others who trusted the applicant. The paragraph also lists the following relevant factor:
Has the applicant engaged in conduct that would reasonably cause another individual to be severely apprehensive, fearful, alarmed or distressed regarding the applicant’s behaviour towards that individual or their property or that of any other individual?[17]
[17] Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10 - Character, 10.5.2.
Given the seriousness of the conduct and the fact that it was directed towards, or in the presence of, vulnerable persons, I agree with, and accept, the Minister’s contention that the incidents in question impact negatively on any assessment of the Applicant’s character.[18]
[18] See Exhibit 8, Respondent’s Statement of Facts and Contentions dated 4 February 2016, [21].
Mitigating factors?
That assessment, however, has to be weighed against any mitigating factors that need to be taken into account. They include: the length of time that has elapsed between the date of the relevant conduct or offence and the application for citizenship; whether the Applicant has accepted responsibility and shown remorse for his conduct; how the Applicant has behaved since the expiration of the Protection Order; whether the Applicant has rehabilitated himself; whether there were extenuating circumstances relating to the incidents; and whether there is evidence of length of employment and stable family life and/or community involvement.
The length of time
It might be suggested that there has been a sufficient lapse of time since the incidents. The first incident, which led to the making of the Protection Order, is now some two years ago. Eighteen months have passed since the events of Boxing Day 2014. As far as I am aware, there have been no such incidents since then.
I do not consider that sufficient time has elapsed in order for me to be satisfied as to the Applicant’s enduring moral qualities. In particular, not enough time has passed for me to be satisfied that the two incidents in question were simply aberrations and out of character for the Applicant. I say that for the following reasons.
The seriousness of the incidents necessarily requires a significant amount of time to pass before one can be satisfied that the person is now of good character.[19] As Senior Member Toohey has observed:
Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
…
I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so as time passes. It counts in Mr Assafiri’s favour that nearly six years have passed without any further offences. However, there is not in my view sufficient objective evidence yet of his good character.[20]
[19] Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10 - Character, 10.5.2.
[20] Assafiri v Minister for Immigration and Border Protection [2014] AATA 35, [67] and [71] (Senior Member Toohey).
What also concerns me are statements apparently made by the Applicant’s wife in the course of seeking the Protection Order in June 2014. She indicated that the relationship had always had its ups and downs but the Applicant was never physically violent towards her until 2008; in fact, the frequency of the incidents was “progressing”.[21] The Applicant disputed those comments, insisting that in their 25 years together, he had only been physically violent towards his wife on the two occasions previously mentioned.
[21] Exhibit 9, Queensland Police Service Court Brief.
Although she gave a character reference in support of her husband, the wife was not called to give evidence. Without more, it is not possible to resolve the factual dispute between them and indeed, satisfy myself as to the Applicant’s enduring moral qualities. The unresolved factual dispute simply serves to reinforce my belief that considerably more time is required to pass before a positive assessment can be made as to the Applicant’s character.
Acceptance of responsibility and remorse
The Applicant testified that the incidents were out of character for him. He readily accepted responsibility for his action and regretted becoming violent during what he described as a “moment of madness”.
He was brought up in a loving family where violence was not condoned. His own marriage of 25 years has had its “ups and downs”. He maintained that he had only been violent towards his wife on the two occasions in question and sought to explain the circumstances surrounding those incidents. He said that his wife had been abusive to the boy whom the Applicant believed to be his 22 year old son; her behaviour was “unbearable”. The Applicant tried to understand why that relationship was affected. Ultimately DNA tests established that the Applicant was not the boy’s father. The Applicant was devastated; he said the family was “torn apart”. He tried talking with his wife, without any success. She was a “non-starter”; he described what he termed her silent, “psychological abuse”. He engaged community elders to attempt to amicably resolve the issue, but to no avail. A few months after learning of what he described as his wife’s “paternity fraud”, the first incident occurred, leading to the Protection Order being made.[22] He and his family were referred to counselling through Mission Australia in June 2014 for about six months and the Applicant also had five individual counselling sessions.[23]
[22] Exhibit 1, T Documents T 12, pages 154-155, Applicant’s email to the Department dated 23 April 2015.
[23] See Exhibit 3, character reference by Ms Helen Tofilau (Mission Australia) dated 6 January 2016.
The Boxing Day incident happened after the Applicant had been drinking all day. He was angry at his wife for sending a substantial sum of money to Zimbabwe behind his back to two men who were not related to her. The incident started with verbal abuse and then degenerated into a physical altercation, resulting in the Applicant’s arrest for contravention of the Protection Order.
While the Applicant is remorseful for his actions, it is apparent that, despite the passing of some eighteen months to two years, he still blames his wife for the underlying causes. He described his wife’s role as one of “psychological abuse” that was part of a “bigger story”; he no longer trusts her. He disputed a number of the details of the events, saying that his wife had lied to the police and making comments such as, “well [name] would say that”. Although I accept that the Applicant is regretful of his actions, there are still clearly very sensitive issues which remain unresolved. Until those issues are confronted, it seems to me that the risk of recurrence remains.
The Applicant also said in his response to the delegate that he displayed remorse at the time of the incidents, as demonstrated by the fact that it was he who asked his daughters to call the police “out of shame and embarrassment”.[24] However, at the hearing, he conceded that on the first occasion, the police did not attend on the night in question. Rather, it appears that their involvement followed his wife presenting at the police station the afternoon after the incident once she received medical treatment earlier in the day.[25] The Applicant explained at the hearing that following that incident, he told his daughter to call the police if such an incident happened again. It appears that she did so on the second occasion. Although that request could be seen as demonstrating remorse, in that context it could also be equally viewed as motivated by a concern on the Applicant’s part that there could be a recurrence if he suffered another “moment of madness”. I therefore do not attach significant weight to the fact that he gave the instructions to his daughter.
[24] Exhibit 1, T Documents T 12, pages 154-155, Applicant’s email to the Department dated 23 April 2015.
[25] Exhibit 9, Solicitor’s Office Report Details.
Rehabilitation/counselling

Although, as far as I am aware, there have been no other incidents of violence since the Protection Order expired, there remain, as I said above, a number of unresolved issues between the Applicant and his wife.
While the Applicant and his family undertook counselling after the Protection Order was first made, and while that appeared to have had some success,[26] it is significant that the Applicant has not undergone further counselling, or undertaken any other rehabilitative action since the Boxing Day incident. Apart from a workplace session through his employer, the Applicant has not undertaken an anger management course. Nor has he consulted anyone about problems he might experience with alcohol, even though that appears to have been a contributing factor to that last incident. Without some assistance or rehabilitative action, I am concerned at the prospect of recurrence. That is especially so when it is remembered that the Boxing Day incident occurred shortly after the Applicant had completed his five individual counselling sessions.
[26] See Exhibit 3, character reference by Ms Helen Tofilau (Mission Australia) dated 6 January 2016.
Extenuating circumstances?
As mentioned already, the Applicant sought to explain the motivating cause of his conduct, pointing to his wife’s “paternity fraud” and her sending a substantial sum of money to two men in Zimbabwe without reference to him.
While it is understandable that those matters would cause much stress and anguish, I do not think they could amount to “extenuating circumstances” which would mitigate the Applicant’s behaviour. As Deputy President Constance recently observed:
Mr Sharma focussed on the influence of his daughter on his conduct. I accept that their relationship was turbulent. Nonetheless, this does not in any way mitigate or lessen the seriousness of Mr Sharma’s conduct. Domestic violence is often present in volatile relationships. To say that such circumstances lessen the seriousness of domestic violence is fundamentally inconsistent with the values of the Australian community as reflected in the Australian Citizenship Instructions.[27]
[27] Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608, [53].
Employment, family life and community involvement
In his response to the delegate, the Applicant listed a number of examples of his acceptable behaviour, such as his work qualifications and training, his role in undertaking specialist engineering work, and as a volunteer in a number of community and charitable organisations. In support of the latter, he attached a number of documents from different organisations as well as screenshot images from various groups.[28]
[28] Exhibit 1, T Documents, T 12, pages 154-178, Applicant’s email to Department dated 23 April 2015.
The delegate attached little weight to those documents and screenshots, saying that while they proved the Applicant was on the mailing list of the various organisations, they did not establish that he was a contributor to those groups.[29] That matter was not addressed at the hearing. However, for completeness, I note that I share the delegate’s reservations as to the weight which attaches to that material without anything more.
[29] Exhibit 1, T Documents, T 2, page 15, Decision Record dated 17 August 2015.
The Applicant’s failure to produce any character references was noted as a significant factor by the delegate.[30]
[30] Ibid.
However, by the time of the hearing, the Applicant had lodged six character references. All were in letter form; none were made as statutory declarations. One was from a Child and Family Intervention worker with Mission Australia, who was responsible for arranging counselling services for the Applicant and his family in the six months following the making of the Protection Order. She confirmed that the Applicant had attended his five scheduled counselling sessions and “engaged very well”.[31]
[31] Exhibit 3, character reference by Ms Helen Tofilau dated 6 January 2016.
Of the remaining five references, three were from family members, being the Applicant’s wife,[32] one of his daughters,[33] and the niece of the Applicant’s wife.[34] With all due respect to the referees, I place limited weight on their references. Besides the inherent bias in any reference,[35] the fact is that the references were not in the form of statutory declarations and none of the referees were called to give evidence. Importantly, the ACIs caution against relying on references from family members, especially in matters involving domestic violence:
It is preferable that references are not submitted from family members. However, if they are, less weight should be given to them because of the societal expectation that family members would tend to support one another and play down unacceptable conduct. Decision makers should take particular care with references from victims of domestic violence. There is a risk that such statements have been coerced either directly or indirectly.[36]
[32] Exhibit 4, character reference by Applicant’s wife dated 7 January 2016.
[33] Exhibit 5, character reference by Applicant’s daughter, undated.
[34] Exhibit 2, character reference by the niece of the Applicant’s wife, undated.
[35] See Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10 - Character, 10.6.5.
[36] Ibid.
The remaining two references were from former work colleagues of the Applicant from his time in Zimbabwe, who had since become friends of his. The first referee resides in Western Australia. It contains no detail of when he last observed the Applicant in a family and community setting. Significantly, it is silent on the question of domestic violence or tensions within the Applicant’s family.[37] I therefore attach little weight to that reference. The final reference states that the referee is aware of “a domestic issue”, but does not contain any further detail. It is therefore unclear as to how much information had been provided to the referee. Further, it is unclear where the referee resides (the reference only contains a United Kingdom email address) or when he last saw the Applicant.[38] In the absence of further detail, I therefore attach limited weight to that reference.
[37] Exhibit 6, character assessment by Givemore Chirenda, undated.
[38] Exhibit 7, character reference by Mujoko Mujoko dated 28 October 2015.
Conclusion - mitigation
It follows from what I have said that I do not consider there to be any significant mitigating factors in this instance.
Other matters
Before concluding, there are two other matters I should raise.
The first concerns certain answers which the Applicant gave in response to questions asked in his Application for Australian citizenship. The question in paragraph 31(a) of the application relevantly asked whether the Applicant had “been convicted of, or found guilty of, ANY offences overseas or in Australia”. In paragraph 31(d), he was asked:
Are you presently under a probation order, good behaviour bond, on parole, released on licence or subject to periodic detention overseas or in Australia?
In response to both questions, the Applicant ticked the “No” box.[39]
[39] Exhibit 1, T Documents, T 6, page 132, Applicant’s Application for Australian citizenship dated 28 November 2014.
During cross-examination at the hearing, the Applicant explained that he answered “no” to question 31(a) because he did not consider domestic violence to be a criminal act or offence. As to the later question, he agreed that his answer was incorrect. He had no explanation for why he answered as he did, conceding that the question was clear.
Absent any explanation by the Applicant for the error, I consider that failure to answer truthfully is also relevant to the consideration of the Applicant’s character, especially given the short period between the making of the Protection Order and the application itself. Among the factors to be taken into account, the ACIs specifically note the question as to how the applicant interacted with the Australian Government or State/Territory governments. In particular, it prompts the question whether the applicant has been honest in providing information in a range of interactions, including citizenship applications.[40]
[40] Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10 - Character, 10.5.2.
The second matter I wish to mention is the impact of the refusal of the Applicant’s application on his visa status and on the applications for citizenship of his two younger daughters, which were apparently part of the same application.
Although noting that such matters were not strictly relevant to the present application, the Minister’s legal representative confirmed that the refusal of the application for citizenship would not affect the Applicant’s current visa status. Nor would it preclude fresh applications for citizenship being made on behalf of his daughters. While I consider that more time is required to assess the Applicant’s “enduring moral qualities”, there seems nothing to prevent him or his wife lodging fresh citizenship applications on behalf of his daughters.
CONCLUSION
To summarise, I am not satisfied that the Applicant is of good character under s 21(2)(h) of the Act. As a result, I do not believe he is presently eligible to become an Australian citizen.
Accordingly, the decision under review is affirmed.

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter
.......................[Sgd].................................................
Associate
Dated 2 August 2016

Date of hearing

Date final submission received

31 May 2016

30 June 2016

Applicant In person

Solicitors for the Respondent Australian Government Solicitor

Division	GENERAL DIVISION
File Number(s)	2015/4657
Re	HSXY
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Tribunal	Senior Member A C Cotter
Date	2 August 2016
Place	Brisbane