HVTP and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)

[2022] AATA 2544

HVTP and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2022] AATA 2544 (11 August 2022)

Division:GENERAL DIVISION

File Number(s):2021/9979      

Re:HVTP  

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member R Bellamy

Date:11 August 2022

Place:Brisbane

The decision under review is affirmed

.............................[SGD]...........................................

Senior Member R Bellamy

CATCHWORDS

CITIZENSHIP – refusal of an application for Australian citizenship by conferral – section 21(2)(h) of Australian Citizenship Act 2007 – whether Applicant is of good character – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 4

Minister for Home Affairs v G [2019] FCAFC 79.

SECONDARY MATERIALS

Department of Immigration and Border Protection, Australian Citizenship [Policy Statement] (Reissued 27 November 2020)

Department of Immigration and Border Protection– Citizenship Procedural Instruction 15 – Assessing character under the Citizenship Act (Reissued 26 February 2021)

REASONS FOR DECISION

Senior Member R Bellamy

11 August 2022

1. The Applicant is a citizen of Sierra Leone, who first arrived in Australia on 9 September 2010 as the holder of a Global Special Humanitarian (subclass 202) visa. On 6 February 2020, he applied for Australian citizenship by conferral.

2. On 24 November 2021 a delegate of the Minister for Immigration, Citizenship, and Multicultural Affairs (“the Respondent”) refused the Application on the basis that the Applicant did not meet the good character requirements under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”). On 20 December 2021 the Applicant sought review of that decision. The Tribunal has jurisdiction to review the decision under s 52(1)(b) of the Act.  

3. The hearing of this matter took place on 23 June 2022. The Applicant did not have legal representation. He and his wife gave evidence via video conference. His adult step-son and a colleague gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE SCHEME

4. Under s 21(1) of the Act, a person may make an application to the Minister to become an Australian citizen. Section 21(2) of the Act identifies applicable criteria that an Applicant must satisfy in order to be eligible to become an Australian citizen.

5. Section 24(1) of the Act provides that if a person makes an application under s 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. 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 one of s 21(2) to (8) of the Act.

6. Subsection 21(2) of the Act relevantly provides that:

   A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   (a)is aged 18 or over at the time the person made the application; and

   (b)is a permanent resident:

   (i)    at the time the person made the application; and

   (ii)    at the time of the Minister’s decision on the application; and

   …

   (h)      is of good character at the time of the Minister’s decision on the application.

7. Under s 24(2) of the Act, the Respondent may refuse to approve an Applicant becoming an Australian citizen despite being eligible to become so under s21 (2), (3), (4), (5), (6) or (7). Section 24(1) of the Act confers a broad and unfettered discretion to approve or refuse an application made under s 21 of the Act.[1]

   [1]     Minister for Home Affairs v G [2019] FCAFC 79 at [64].

8. The term “good character” for the purposes of s 21(2)(h) is not defined in the Act, but it is addressed extensively in the “Australian Citizenship [Policy Statement]” (“the Policy”) and the Citizenship Policy Instruction 15 – “Assessing Good Character under the Citizenship Act” (“CPI 15”). These are departmental policies that were not made under a legislative power but in an exercise of executive power. They are not binding but should be applied unless there are cogent reasons not to.[2]

   [2]    Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, per Brennan J.

9. CPI 15 relevantly advises that 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, which is an objective assessment, and that a person who has been convicted of a serious crime may show that he or she has reformed and is of good character.[3] CPI 15 states that the phrase “enduring moral qualities” encompasses:

   ·     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.

   [3]     See Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431] - [432].

10. It further notes that a person of good character would “respect and abide by the law in Australia and other countries” and that the evaluation of a person's character requires a holistic assessment of the person’s aggregate qualities and their behaviour over a period of time.

11. It is apparent from the wording of s 21(2)(h) of the Act that it is not a question of whether a person is of bad character and therefore ineligible for citizenship. Rather, the question is whether a person is of good character, and therefore eligible for citizenship. It follows that, when all the relevant evidence has been considered, if there is doubt in the Tribunal’s mind about whether the Applicant is of good character, he cannot satisfy s 21(2) of the Act.   

    BACKGROUND    

12. The Applicant has lived in Australia since September 2010. He married “Ms S” in December 2014, and they had a son, “Child A”, in 2015. Ms S had three children from a previous relationship. Ms S described the Applicant as kind, with a generous heart, always willing to give and to assist people in need. She said he has been a good step-father to her children, attending school events and the like. There is evidence that the Applicant has donated to charities and that he has helped people in the community, especially elderly people, for example by cleaning their yards, helping them to move residence, and donating household items. He has worked in the aged care sector for 10 years, and a colleague, “Ms J”, who has a supervisor role, described him and his care of residents in very positive terms. 

13. However, the Applicant’s character is called into question by allegations of domestic abuse in 2014, 2016, 2017 and 2018, multiple contraventions of a Domestic Violence Order in 2018 and his failure to disclose his convictions for those contraventions on his citizenship application.           

14. According to an application for a Protection Order, in March 2014, an ex-girlfriend of the Applicant (“the complainant”) reported that she had received threats via voice messages and Facebook from the Applicant. According to her, when they broke up, she threw his keys onto the road in front of him. She claimed one text message said “My keys are your lives.   I want them by the end of this week or headline news. No keys, no peace”. She later received a message on Facebook that said “I don’t give an F who survive or not. My life I’ll sacrifice but you, your boyfriend and whoever is residing in the house will pay the price with the exception of your next door neighbor (sic)”. She told the police that the threats continued to bother her and affected her physical, emotional, and mental life. She feared for her life and that of her partner and his mother who resided with her.[4]

    [4]     Exhibit 2, S4 pages 8 to 17.

15. A Temporary Protection Order was made on 10 April 2014, and subsequently a Protection Order was made on 15 May 2014 by consent without admissions. The conditions included that the Applicant was prohibited from contacting or attempting to contact the complainant.[5]

    [5]     Exhibit 2, S5 page 18.

16. In the hearing, the Applicant denied these allegations. He said his relationship with the complainant had ended when her ex-boyfriend moved from Western Australia and they reunited. The complainant and that boyfriend went to the Applicant’s home to collect her possessions and he threw the Applicant’s keys in his face. He was very controlling to the point where the complainant left her employment, and her colleagues became concerned about her. The Applicant gave her colleagues her address as they wanted to check on her. Her boyfriend was rude to them. Years later, the complainant told the Applicant that this person had forced her to make all the allegations that she made against him.

17. The Applicant had attended court when the Protection Order was made. He had not opposed the order because he had accepted the relationship was over and that she had moved on.[6] The complainant’s allegations are merely allegations. No admissions were made, and the allegations were not proven. There is no evidence before me of any other similar incidents, so this sort of behaviour would appear to be out of character for the Applicant. Further, his account is not inherently implausible. In these circumstances, I do not think it would be fair to proceed as though the allegations are true, so I will not do that. There is no evidence that the Applicant breached either of the orders. 

    [6]     Transcript pages 24 lines 47 to page 25 lines 1 to 2.

18. The Applicant went on to marry Ms S. She had previously been the victim of long-term domestic abuse before coming to Australia and she was raising her children as a single parent.

19. According to a police record, on 6 April 2016 a family friend came to the house to take        Ms S shopping at around 7.00pm. The Applicant became uneasy about this and he used the “find my iPhone” app to locate Ms S. She was in her friend’s car across the street. The Applicant walked towards her and he saw another African male walking away from the area. He became worried that the male had been with Ms S. He approached Ms S and her friend, and a heated argument ensued. The friend, worried that the Applicant had tracked Ms S’s phone, contacted the police. The Applicant and Ms S contacted elders in their community who were assisting them. Ms S said she no longer wanted the assistance of police.[7]

    [7]     Exhibit 2, S6 pages 20 to 21.

20. The Applicant’s account is a little different. He denied having used an app to track Ms S. He said he became suspicious about Ms S’s friend taking her shopping as she had never done that before, and he and Ms S had already done the shopping that day. He crossed the street and saw Ms S’s friend’s car. Seeing an African male nearby, he became very insecure and accused Ms S of cheating on him.[8] It appears that the allegation that the Applicant tracked Ms S’s phone was based on suspicion and nothing more. I accept the Applicant’s account.   

    [8]     Transcript page 28 lines 5 to 8.

21. The next reported incident was on 7 August 2017. Ms S contacted the police claiming the Applicant was acting very threateningly towards her and the children. She said the Applicant was jealous and controlling, and she felt like she was always under supervision. After Ms S called the police, they attended her home, but she had left by then. They spoke with the Applicant. He said the previous day Ms S had disappeared from an all-day event they were both attending. He had called her. Initially she did not answer but she answered later. They had a small argument about communication. Ms S told him he was too controlling, and it was domestic violence. She told him to move out immediately or she would call the police. He said the next day he did not speak with Ms S.[9]

    [9]     Exhibit 2, S7 page 23.

22. Ms S then returned home and she spoke with the police. She said the Applicant tried to track her phone and was jealous of the male director of the day care business she operated from her home and who conducted fortnightly inspections. The Applicant suspected her of having an affair with this man. The Applicant threatened to install cameras in the house, and when she told him it was not necessary, he got upset. She said she felt like she was always under supervision, and that the only contact she had outside the home was with day care parents. Over the preceding three nights the Applicant had continuously said, “I will find out who it is”. Ms S said she had not slept the last three nights. She asked the police to remove the Applicant from the home, but they said they could not do that. The police did not consider it desirable or necessary to protect Ms S from the Applicant. She said she would stay with a friend that night.[10]

    [10]    Exhibit 2, S7 page 23.

23. The Applicant did not entirely agree with the account Ms S gave to the police, but he did agree that he called her and after an hour she called back and told him she was shopping. He stressed that he was only concerned about her because it was unusual to leave in the middle of an event.[11] I pause to note that context is important here. An isolated instance where one person tries to track another person down because of apparent concern for their safety may not be sinister, but it is if it occurs in the context of consistent unwanted scrutiny and oppression. The Applicant did not deny that he had wanted to install cameras in the family home and that he got upset when Ms S objected, that he accused Ms S of infidelity or that the only adults Ms S had contact with at that time were day care parents. I accept Ms S’s evidence about those matters.    

    [11]    Transcript page 29 lines 29 to 41.

24. According to another police report, on 25 September 2018, Ms S and Child A attended her friend’s address. They spent the afternoon with her friend and their children. That evening, the Applicant called Ms S, aggressively accusing her of not being where she had told him she would be, and of being unfaithful to him. A short time later he drove to her friend’s home and sat outside in his vehicle for over 10 minutes with the engine running which made Ms S feel scared. The Applicant then knocked on the door and Ms S answered but she did not open the screen door out of fear. The Applicant demanded she open the door saying words like “Open the door and let me take my son”. She refused. The Applicant again accused her of lying and being unfaithful. She told him to leave. He walked away and went back into his vehicle where he stayed for a while before leaving. Ms S contacted the police and when they arrived, they observed that she was so distressed that her breathing was laboured, almost to the point that she required medical attention. This incident occurred in front of Child A. Ms S reported that she was frightened of the Applicant.[12]

    [12]    Exhibit 2, S8 pages 25 to 27.

25. Ms S’s heightened distress and laboured breathing appear to have been an overreaction to what the Applicant did on this particular occasion. In the hearing, Ms S indicated that as a victim of previous domestic violence, she had done some courses and developed good knowledge of domestic violence. Without saying as much, she gave the impression that the previous domestic violence was severe. She indicated that she was quite sensitive to the Applicant’s controlling behaviour because she did not want to be in an abusive situation again. When she gave evidence about some text messages the Applicant sent her (referred to below), she said they triggered her.[13] Given her seemingly disproportionate reaction to the Applicant’s conduct on this occasion, it seems likely that it also triggered her. When assessing the Applicant’s behaviour on this occasion, I take into account that Ms S seemed to be reacting not only to the Applicant’s behaviour but to past serious abuse perpetrated by someone else and is therefore not a good indicator of the seriousness of the conduct.   

    [13]    Transcript page 39 lines 5 to 10.

26. The police issued a Police Protection Notice and served it on the Applicant later that night. The notice stated that the Applicant was required to attend court on 27 September 2018 with respect to an application for a domestic violence order against him.  On that date, the Applicant attended court and a Temporary Protection Order (“TPO”) was made. It included a condition prohibiting the Applicant from contacting Ms S.[14]

    [14]    Exhibit 2, S11 pages 36 to 37.

27. In a letter he wrote to the police prosecutions, dated 1 October 2018, asking for the TPO to be withdrawn, he gave his account of the events of 25 September 2018.[15] He described some communication between him and Ms S, and with her daughters that caused confusion about where Ms S and her daughters were;

    ·Ms S told him that Child A was sick but getting better. He ultimately told her she did not have the right to sleep over somewhere with their son without his consent. The conversation became tense, and he told Ms S to bring Child A home. She then said they were at a friend’s place and he said he was going to go there;

    ·when he arrived at Ms S’s friend’s place, she asked him why he was there, and she kept interrogating him about that. She asked him to go home and said she would join him there soon;

    ·he went back to his car and he received a couple of text messages from Ms S’s son, “Mr M”. He then called Mr M and went home;

    ·he waited for Ms S to arrive, but she did not. He called her multiple times and sent messages. She did not reply so he went back to her friend’s house, knocked on the window and, when she realised it was him, she started crying out for help; and

    ·he immediately drove home.

    [15]    Exhibit 2, S14 pages 46 to 51. 

28. In that letter the Applicant described the incident as a simple misunderstanding, saying he loved and cherished his wife and children. He gave an assurance that they would always remain safe and free from any form of abuse or threat from him. He said he was a law-abiding man but that living with this order within his marriage would not only create an imbalance of power but would also have a psychological and traumatic impact on his day-to-day life.[16]

    [16]    Exhibit 2, S14 Page 50.

29. In an email the Applicant sent to the Respondent in the context of his citizenship application, he said Child A had asked Ms S her to open the door and let him in. He admitted to having called Ms S a liar in front of Child A, which he now accepts was unacceptable. He said he sat in his car afterwards because he was talking to Mr M on the phone.[17] In the hearing he denied having sat outside Ms S’s friend’s home for several minutes before going to the door.[18] In the hearing, Mr M was asked about this incident and his memory seemed vague and somewhat confused. He seemed to think that the Applicant went to find Ms S because he was often worried that she would call the police and he would be made to leave the family home. He recalled that the Applicant was packing his bags, very upset. Mr M had tried to calm him down and persuade him not to worry. Mr M did not refer to the Applicant being jealous of another man.[19] I think the most reliable account is the one Ms S gave to the police immediately after the event and I accept it. I also accept that the Applicant sat in his car outside Ms S’s friend’s home after he walked away from the front door because he was talking with Mr M and not for another purpose. 

    [17]    Exhibit 1, T7 page 83.

    [18]    Transcript page 8 lines 9 to 20.

    [19]    Transcript page 42 to 43.

30. Immediately after the TPO was made, the Applicant breached it (see below) by contacting Ms S. The Applicant told the Tribunal he had not been aware of the no contact condition. He claimed that although he was in court when the order was made, he was in shock and not in the correct frame of mind. He acknowledged that the Magistrate probably explained the order but that it did not register with him. Nor did he obtain a copy of the order because by the time he left the court room there were no court staff at the registry. His Legal Aid lawyer handed him a small piece of paper with the time by which he had to vacate the family home, that is all. He thought he was only under an obligation to be of good behaviour.[20]

    [20]    Transcript page 18 to 19.

1. The day after the TPO was made, the Applicant sent 22 text messages and seven WhatsApp messages to Ms S. He also called twice and left one voice recording. The next day, he sent 18 text messages and one WhatsApp message. He also called once. The messages included:

   ·“Why do you hate me so much?”

   ·“A simple misunderstanding has turned into a nightmare”

   ·“Send me to jail if that will make you happy now, I cannot apply for citizenship because of this record”

   ·“I know you want to use these messages against me in court but the truth is you are just upset but you are a B[message cut off] But you are not a bad person”

   ·“I am worried. The last allegation put forward by you will send me to jail please don’t do this to me. [redacted] needs me. Someone just told me that if we appear court on the 8^th and you pinpoint about your safety with such allegations they might consider a sentence or deportation to Africa”

   ·“Even with the calls and messages, I am sending are evidence for the courts to take drastic action against me. Showing them to your lawyer will just send me into ruin” and

   ·“Listen to God not people”, “Please allow God into your life to fix this” and other messages where the Applicant sought to equate his wants with God’s will.[21]

   [21]    Exhibit 2, S27 pages 85 to 100.

2. Ms S recalls the Magistrate explaining the order in court, and the Applicant contacting her and getting people in their community to contact her on his behalf. She told those people there was an order prohibiting the Applicant from direct or indirect contact and she later told him.[22]   

   [22]    Transcript page 38 lines 15 to 30.

3. I have serious doubts about the Applicant’s claimed ignorance of the no contact condition. First, the Applicant said the protection order that was made in 2014 included a no contact condition. Therefore, he must have known from that experience that protection orders could contain a no contact condition. Given that knowledge, in circumstances where Ms S had complained to him about him contacting her, it seems implausible that he believed the TPO would not prohibit him from contacting Ms S. Second, the Applicant admitted that when he contacted Ms S after the order was made, she told him he was not allowed to contact her, and she later sent him a copy of the order. Third, some of the early messages he sent appeared to indicate he knew he was breaching the order, such as a message that included “Even with the calls and messages, I am sending are evidence for the courts to take drastic action against me.”[23] When a text message that included “I know you want to use these messages against me in court…”[24] was put to him, he said “So when she made me aware of everything, then I sent messages like this.”[25] He was then asked “Okay. So you were aware that the messages were against court orders at this stage. Is that right?” to which he replied “Yes”.[26] Those messages were sent on 28 and 29 September 2018.

   [23]    Exhibit 2, S27 page 95.

   [24]    Exhibit 2, S27 page 88.

   [25]    Transcript page 21 lines 40 lines 45.

   [26]    Transcript page 21 lines 43 to 45.

4. I am satisfied that on 29 September 2018 at the latest, the Applicant knew the TPO prohibited him from contacting Ms S. On 1 October 2018, the Applicant wrote the police prosecutions the letter referred to above and he continued to contact Ms S. That day, he sent a text message, and on 2 October 2018 he sent three WhatsApp messages. On 5 October 2018 he sent nine text messages and two WhatsApp messages. On 6 October 2018 he sent five text messages. Among those messages were:

   ·“I did not receive the DVO but now I know there is I will stop making contact” and

   ·“If you tell the police/court that I have been contacting you even though I did not receive a dvo against me, they might jail me for 3ys so my future is in your hands”.[27]

   [27]    Exhibit 2, S27 pages 101 to 102.

5. While the first quoted text message suggests that the Applicant recently discovered that the TPO prohibited him from contacting Ms S, the evidence set out above indicates he knew by 29 September 2018 at the latest. This shows disrespect for court orders.   

6. Ms S reported the Applicant and told the police that she felt extremely harassed by the constant messages and phone calls. She felt intimidated by his behaviour and she was afraid that it was escalating.[28]

   [28]    Exhibit 2, S25 page 78.

7. On 19 October 2018, the police arrested the interviewed the Applicant. He admitted to having sent text messages and having been present in court when the order was made. He said he did not understand the order when the Magistrate made it and had not received a copy. He was released from custody and was later served with a Notice to Appear in relation to his contraventions of the order.[29]

   [29]    Exhibit 2, S30 page 118.

8. On 18 January 2019 the Applicant was convicted of contravening a Domestic Violence Order (x 6), relating to the messages and phone calls between 28 September 2018 and 6 October 2018. He was fined $500, and the convictions were not recorded.[30] Objectively, the volume of the text messages was harassing. Ms S felt harassed and she was afraid of further harassment. The content of some messages was manipulative, alternating between apparent respect for Ms S’s wishes to attempts make her feel guilty. He also sought to use religion to induce Ms S to drop the TPO and reconcile with him.     

   [30]    Exhibit 1, T6 page 81.

9. On 26 November 2019, a Protection Order was made against the Applicant requiring him to be of good behaviour and to stay away from Ms S and the children unless she gave written permission. He was permitted to contact her. The order was made by consent without admissions.

10. On 14 January 2020 the Applicant signed an application for citizenship. The application form included the question “Have you been convicted of, or found guilty of, ANY offences overseas or in Australia …” to which he ticked the “No” option. Later in the form, the Applicant signed the declaration “I declare that the information I have supplied in this form is complete, truthful and correct in every detail”.[31] Both statements were obviously false as the Applicant had been found guilty of six offences. He had also been convicted of those six offences although the convictions had not been recorded.

    [31]    Exhibit 1, T3 page 50 and 53.

11. The Applicant claimed that Ms S convinced him that the question did not apply to his offences because he was not convicted. Implicit in his evidence is that they believed he had not been convicted. The Applicant said he was also going through a lot, having been thrown out of his home, at the time he answered that question. He told Ms S that he was not in the mood to fill in the form, but she persuaded him.[32] I note that January 2020 was a long time after the Applicant was removed from the family home. Further, even if he mistakenly thought he had not been convicted, he still knew he had been found guilty. He speaks good English, and he wrote his letters to the police and the Respondent in English, indicating proficiency in reading and writing English.

    [32]    Transcript page 16 lines 3 to 16.

12. Ms S recalled filling in the citizenship application form with the Applicant. She said she thought they misunderstood the question – that convicted meant “someone goes to jail or something”. She called it an honest mistake. She did not explain why she ignored the words “found guilty” in the question.[33] I do not accept that Ms S or the Applicant misunderstood the question and genuinely believed the correct answer was “No”.    

    [33]    Transcript page 35 lines 35 to page 36 line 9.

13. On 11 March 2022, Ms S applied to remove the Protection Order. She and her children started to feel safe with the Applicant and she did not want to keep having to give her consent for him to spend time with her two adult children.[34] In her application she said:

    “The last 20 month me and my four children didn’t experienced domestic violence in any form. We’ve been observing [the Applicant] respect our needs and boundaries. He been a great support for our 6 years old son with special needs.”[35]

    (Errors in original)

    [34]    Transcript page 37 lines 25 to 46.

    [35]    Exhibit 2, S23 pages 70 to 73.

14. Ms S said she was advised that removal of the order would require a hearing but that she could vary the order without a hearing. She did not have an issue keeping the order with the good behaviour condition because, in her view, everyone should be of good behaviour.[36] The Applicant had nothing to do with Ms S’s application and only found out about it after she made it. He said he did not have a problem with the good behaviour condition continuing for the same reason Ms S gave.[37] The police consented to the order being varied so only the good behaviour condition remained. 

    [36]    Transcript page 38 lines 8 to 10. 

    [37]    Transcript page 30 lines 35 to 41.

15. There is no suggestion that the Applicant committed offences or engaged in inappropriate behaviour after 6 October 2018.

    WHETHER THE APPLICANT IS OF GOOD CHARACTER

16. Nobody is claiming that the Applicant has ever engaged in physical violence against Ms S (or anyone else). However, it has long been known in some sectors of the community that domestic abuse is not confined to physical violence. Emotional and psychological abuse, for example coercive control or “gaslighting”, are forms of abuse that do not leave visible marks but are damaging and debilitating to victims and potentially to children of the relationship and others who are close to the victim. This is now gaining greater recognition in mainstream Australian society and the legal system. I am satisfied that the Applicant’s controlling, harassing, manipulative behaviour is, in totality, contrary to the values of the Australian community. Even though it is at the lower end of the scale of seriousness as far as domestic abuse goes, domestic abuse in any form, to any extent, is morally wrong, and some of what the Applicant did was also illegal as it was done in contravention of a court TPO. Further, the attitude that one person in an intimate relationship may oppress the other is an affront to core Australian values including equality, liberty, and dignity. In addition, when the Applicant failed to declare his offences in his citizenship application, he fell short of the ethical standards that are associated with good character.    

17. Since engaging in that behaviour, has the Applicant reformed such that he is now of good character?   

18. The Applicant expressed shame and regret over his behaviour toward Ms S. He also took steps to reform. In 2018 he contacted a counsellor about his predicament.[38] He subsequently engaged in 15 sessions of relationship counselling with Ms S, and by November 2019 he had voluntarily completed a 16 week Responsible Men Program.[39] Ms S considers the relationship counselling helped the Applicant to understand why his behaviour made her so scared.[40] The Applicant said the Responsible Men Program taught him a lot about himself. It taught him about respecting cultural differences, and to challenge his beliefs and not try to enforce his beliefs on others. He explained that he initially did not accept it when Ms S wanted to separate. His cultural belief at that time was that the woman in a relationship cannot make any decision about who should leave the house and who should stay because the man is dominant, he makes decisions. When Ms S was getting upset with the Applicant, he saw it as her trying to control and dominate him. He said it was not easy to make these changes in his attitude because he grew up with a lot of cultural beliefs, so the change was gradual.[41] He also learned some behavioural tools such as counting and thinking before reacting. He said, “If you use those tools, it’s very difficult for you to do the wrong things.”[42] 

    [38]    Transcript page 28.

    [39]    Exhibit 1, T1, page 9 and 19.

    [40]    Transcript page 34 lines 20 to 25.

    [41]    Transcript page 9.

    [42]    Transcript page 28 lines 25 to 26.

19. For 20 months following the TPO, the Applicant and Ms S were separated, and they maintained distance, but they still communicated, for example Ms S invited him to places like the park with Child A. According to the Applicant, they kept the relationship “good” and there were boundaries: he was not controlling like he was before. He no longer thought “I’m the man.  I’m supposed to know wherever she is”. He understood that “she is not my property.  She is a human…she needs to feel free and safe”.[43] According to Ms S, while living separately, the Applicant remained involved in the family to an extent, for example he taught her children to drive and took them to school/workplaces and recreational activities. He apologised to Ms S and her children and took full responsibility for his actions.

    [43]    Transcript page 10 lines 15 to 20.

20. Last year, after the Applicant lost his sister to cancer, Ms S did not want him grieving alone so she invited him to spend time in her home. Since September 2021, he has spent around 80% of his time, when not working, at Ms S’s home. He considers that, despite not living together, they are a couple. Ms S said that she and her children have been observing the Applicant closely and they can see he has changed – he respects their boundaries and he is working hard to reunite with them family in the near future. She does not currently have any concerns about the Applicant. He does not question her as he did before, he is happier within himself and at peace with himself, whereas previously he was insecure.[44]   

    [44]    Transcript page 36 lines 39 to 43.

21. Mr M is 21 years old. He described the Applicant as a father figure and friend. He acknowledged that there was a period when the Applicant thought Ms S was “going out and around” and he was very controlling. He said the Applicant has helped their family a lot, and that he had always treated him and his siblings very well. He thinks the Applicant has changed, he is trusting and loving, and things have been great for the past year. He does not have any present concerns about the Applicant’s behaviour.[45]

    [45]    Transcript page 41 lines 25 to 33.

22. Ms J has worked with the Applicant for five years in a supervisor role. She gave evidence at the hearing and said she has observed that he is very honest, cooperative, calm and has a lot of patience. She is aware of the Applicant’s offending conduct because he told her. There is a character reference from another of the Applicant’s colleagues that is positive.[46] Both Ms J and the other colleague are aware of the Applicant’s problematic behaviour towards Ms S. 

    [46]    Exhibit 2, S35 page 136.

    CONCLUSION

23. I accept that the Applicant has taken substantial steps to change his problematic attitude towards women and relationships. I accept that his behaviour has improved to the point where Ms S has no concerns about him. He is a valued member of her family. However, he is still not back living in the family home. I think this is important because the dynamic now, where he is living separately and trying to earn his way back into the family home, is different to the dynamic that existed before. The Applicant has not yet had the opportunity to demonstrate good behaviour in circumstances where he is back in the family home where it will be easier to subject Ms S to scrutiny and pressure, and old insecurities may return. It appears that Ms S is not yet ready to have the Applicant back in the family home as that has not occurred yet. I am also concerned about the incorrect answer in the citizenship application and the Applicant’s attempt to pass it off as a mistake.

24. For the reasons above, some doubt remains in my mind about whether the Applicant is of good character. This does not mean the Applicant could not be eligible for citizenship by conferral in the future. He may make another application when sufficient time has passed to demonstrate, by his behaviour, that he is a person of good character.

25. The decision under review is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

................................[SGD]........................................

Associate

Dated: 11 August 2022

Date of hearing:

23 June 2022

Applicant:

By video conference

Solicitors for the Respondent:

Mr Anthony Gardner

Minter Ellison

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
1	Section 37 T documents (T1 to T12 paged 1 to 165)	R	-	25 January 2022
2	Supplementary Section 37 T documents (S1 to S37 pages 1 to 137)	R	-	3 June 2022
3	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 9) dated 3 June 2022	R	3 June 2022	3 June 2022