Kalakoda and Minister for Home Affairs (Citizenship)

[2019] AATA 3408

Kalakoda and Minister for Home Affairs (Citizenship) [2019] AATA 3408 (11 September 2019)

Division:GENERAL DIVISION

File Numbers:         2018/3056; 2018/4858 & 2018/4859

Re:Virgil Kalakoda, Alexi Kalakoda & Cristian Kalakoda

APPLICANTS

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:11 September 2019

Place:Sydney

2018/3056

The reviewable decision of the Respondent’s delegate dated 23 May 2018 to refuse Mr Virgil Kalakoda’s application for Australian citizenship by conferral is set aside and in substitution the matter is remitted to the Respondent for reconsideration with a direction that Mr Kalakoda is a person of good character and therefore satisfies section 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

2018/4858 & 2018/4859

The two reviewable decisions of the Respondent’s delegate dated 23 May 2018 refusing Cristian Kalakoda’s and Alexi Kalakoda’s applications for Australian citizenship by conferral are set aside and remitted to the Respondent for reconsideration.

..............................[sgd]..........................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – where application was refused on the basis of character – where applicant’s children are taken to have made applications in their own right – where children’s applications refused according to department policy - domestic violence offence – whether applicant is a person of good character – decisions set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth) – ss 21, 24

CASES

FennvMinister for Immigration and Multicultural Affairs [2000] AATA 931

Irving v Minister of State for Immigration Local Government and Ethnic Affairs (1996) FCR 422

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 654 at 645

Prasad and Minister for Immigration [2017] AATA 1506

SECONDARY MATERIALS

Australian Citizenship Policy

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

11 September 2019

1. Mr Virgil Kalakoda (‘the Applicant’) is a 42 year old South African citizen who arrived in Australia under a Distinguished Talent (Class BX) (Subclass 858) visa along with his wife and family in 2013. The Applicant had been a professional boxer at an international level and had won many national and international championships.

2. The Applicant’s children Christian Kalakoda and Alexi Kalakoda are also parties to these proceedings as their citizenship status will be affected by the Tribunal’s decision in relation to their father.

3. The Applicant arrived in Australia around 2012 and gave up his boxing career shortly thereafter. He completed a course of studies and achieved his diploma of Business Management. He has worked full-time for Waverley Council since October 2015.

4. On 5 August 2016, the Applicant applied for Australian citizenship by conferral. The Applicant’s children were included in that application. The Applicant declared that he had been issued with an apprehended violence order (‘AVO’) but that he was not convicted and was given a good behaviour bond. He did not disclose that he had any criminal convictions.

5. On 23 May 2018, the Minister’s delegate refused the application on the basis that the Applicant did not satisfy the requirements of section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (‘the Act’). The delegate found that the Applicant had failed to disclose further proceedings in relation to apprehended violence and had also failed to disclose a driving offence. The delegate also found that the Applicant had not demonstrated that he accepted responsibility or that he had shown any remorse for his behaviour.

6. As a result of the Applicant’s application being refused, the Applicant’s children were taken to have made applications for Australian citizenship in their own right in accordance with the Australian Citizenship Policy (‘the Policy’). The delegate, in two identical decisions made on 23 May 2018, found that the Applicant’s children satisfied the requirements of citizenship by conferral under section 21(5) of the Act but decided to exercise the discretion under section 24(2) to refuse their applications. The delegate found that the children did not meet the policy guidelines for the granting of Australian citizenship.

7. On 28 May 2018 the Applicant commenced these proceedings seeking review of all three decisions and provided further documentary evidence to the Tribunal.

8. The Applicant’s police record was tendered at the hearing.

   ISSUES FOR THE TRIBUNAL

9. There are two issues for determination by the Tribunal.

10. The first is whether the Applicant is of good character within the meaning of section 21(2)(h) of the Act. If the Tribunal is satisfied that he is of good character and that the delegate’s decision should be set aside, the applications of his children should be remitted to the Minister for reconsideration in light of that fact.

11. If the decision refusing the Applicant’s application for citizenship is affirmed, then the second issue for determination is whether the discretion under section 24(2) of the Act should be exercised to refuse the children’s applications for citizenship.

    LEGISLATION AND POLICY – GOOD CHARACTER

12. Section 21(2)(h) of the Act provides that the Minister must be satisfied that a person is of good character at the time the Minister’s decision on the application is made.

13. Further guidance is provided under the Citizenship Policy which supports the Act. It is expressly stated in the policy that it does not seek to provide a checklist for decision-makers but rather to provide guidelines within the context of each case being determined on its merits.

14. The Policy refers to the definition of good character given by Lee J in Irving v Minister of State for Immigration Local Government and Ethnic Affairs (1996) FCR 422 at 431-432, being that it refers to ‘the enduring molar moral qualities of a person’. It also refers to Deputy President Breen’s decision in FennvMinister for Immigration and Multicultural Affairs [2000] AATA 931 on the importance of the character requirement in a citizenship application.

15. A non-exhausting list of the qualities which constitute good character is also set out in the Policy. Relevantly, the policy states that a person of good character would:

    Respect and abide by the law in Australia and other countries

    Not be violent, involved in drugs, or unlawful sexual activity, and not cause harm to others through their conduct……

16. The Policy also gives guidance on weighing up the various issues in the character decision. It provides as follows:

    In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

    ·would a person of good character have behaved the way the Applicant did;

    ·what is there to demonstrate that the Applicant has upheld and obeyed the law;

    ·has the Applicant behaved in accordance with Australia’s community standards;

    ·does the Applicant share Australia’s democratic beliefs and respect its rights and liberties.

    ISSUE 1: IS THE APPLICANT A PERSON OF GOOD CHARACTER?

17. Central to the issue of character in this matter is the incident of family violence resulting in the issue of an AVO on 15 June 2014, as well as the breach of the AVO on 16 June 2019 when the Applicant returned to his former matrimonial home contrary to the terms of the AVO.

18. The Applicant gave evidence at the hearing as to the circumstances leading up to the issue of the AVO. He said that he walked into his house and heard his wife talking to her friend, Maureen, of whom the Applicant did not really approve. He had previously asked his wife not to talk about their relationship with Maureen. He said he was angry when he heard their conversation which was apparently about the wife’s dissatisfaction with their marriage and her desire to leave. He admits speaking inappropriately to his wife but denies threatening her in any way. He said he was in tears because of the conversation and felt betrayed, especially as he had only recently brought his wife and children from South Africa to Australia. He said that his wife had never previously expressed any unhappiness as to her marriage. The Applicant said that the wife had left her phone on during their discussion so that Maureen could hear what was happening. His children were also in the room at the time. The fact that their clearly very emotional conversation took place in front of the children shows a lack of appropriate attention to the welfare of the children by both parties.

19. In relation to the breach of the AVO the Applicant gave evidence that he was released by the police at approximately 3:00 AM on 16 June 2019. As he had no money, nor any place to go, he says he returned to the matrimonial home having established that his wife was not there. He entered the house using his key and slept there at least for the remainder of the night of 16 June and possibly also on 17 June. He said that the incident only came to light because he left a thank you note for his wife, believing that she had been happy for him to return to the house and stay there while she was not there. He said that his understanding was that the AVO prevented him being near his wife and not returning to the matrimonial home if his wife was not there.

20. The Respondent contended that the Applicant’s profession as a boxer made his behaviour much more dangerous and threatening. However, the Applicant gave evidence that as an elite professional he had been trained to leave aggression in the boxing ring. I accept his evidence in this regard. I note further that there is no evidence that the Applicant ever physically assaulted his wife, children or indeed any other person. The Applicant has no criminal record in South Africa and apart from the domestic violence incident, no criminal record for any form of violence in Australia. There was no evidence of any physical violence during the incident, although clearly threatening language was used.

21. Indeed, apart from the domestic violence episode the Applicant appears to have been a worthwhile and productive member of the Australian community. He appears to have been engaged with his family and would regularly attend church with them.

22. Domestic violence can never be treated lightly. It has the potential to create significant ongoing harm particularly to vulnerable women and children. I note the remarks of Deputy President Constance in Prasad and Minister for Immigration [2017] AATA 1506 at [32] that:

    Domestic violence, in any form and in any circumstances, is fundamentally inconsistent with the standard of behaviour expected by the Australian community.

23. It is however relevant to take into account the circumstances of the domestic violence and the associated breach of the AVO, as well as any other relevant offences and events subsequent to the incident of domestic violence. It is also relevant in my view that the domestic violence incident did not involve alcohol or drugs or physical violence and occurred in response to the Applicant overhearing a conversation in which his wife was expressing dissatisfaction with their marriage, to a third party in respect of whom, the Applicant had requested his wife not to talk about their relationship. It is highly believable that the Applicant may have been in shock at the time. I further note that the Applicant cooperated with the police and left the home quietly when they arrived. I note also that the Applicant was of the opinion that the situation may have been contrived between his wife and Maureen, which is somewhat consistent with the wife concealing the phone but leaving it on so that Maureen could listen.

24. The Applicant gave evidence, which was not contradicted, to the effect that he and his former wife have been able to work together and cooperatively parent their children. They were not involved in Court proceedings in relation to the ending of their marriage and the Applicant gave evidence that he did not want to be involved in any such legal proceedings, preferring to sort things out with his wife directly. He and his former wife live approximately 300 metres from each other and the children are able to move freely between their parents separate residences. The Applicant said that he sees his children three or four times a week and is very much involved in their lives. He and his former wife communicate by text message in relation to the children and this has worked well.

25. The Applicant has a stable job, has completed a course of studies and said that he wishes to undertake further study.

26. There is no evidence of any violent or threatening behaviour on the part of the Applicant either towards his former wife or any other person since the domestic violence incident.

27. The Applicant also gave evidence, which is in my view relevant, that during his international boxing career, his wife supported him wholeheartedly, sometimes travelling with him, for example to Japan and Korea to watch him compete. He said that he always sent money home to support his wife and children. He came to Australia initially in connection with his professional boxing career and came to the view that he would like to raise his family here. He went back to South Africa, applied for a Visa and came to Australia where he is now a permanent resident. I accept his evidence that his wife never expressed any concerns about his behaviour prior to coming to Australia from South Africa or indeed prior to the domestic violence incident. It is relevant that when the Applicant and his former wife married, he was already a professional boxer who had been boxing from the age of 18 and she had come to watch his matches. It is thus reasonable to assume that his former wife was extremely familiar with both his boxing skills, his career and his character.

28. The incidents in relation to driving without a licence were a result of the Applicant not being aware in the first instance, that his South African license had expired. On the second occasion he chose to drive his family to church knowing that his licence had expired. The Applicant admitted that this was wrong and that he should not have driven without a licence. I note that he has not had any further driving offences.

29. I note also that the Applicant expressed remorse at the hearing in relation to the domestic violence incident and acknowledged that his conduct was wrong.

    Conclusion

30. It is incumbent upon the Tribunal to make an independent decision as to the character of the Applicant, based upon the material presented to the Tribunal. The Tribunal must have regard to the terms of the Act and the provisions of the Citizenship Policy and give those provisions appropriate weight; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) ALD 654 at 645.

31. The determination in this case is difficult because on the one hand there is an incident of domestic violence which can never be considered acceptable, nor condoned. On the other hand, the sentencing judge only gave the Applicant a section 10 bond for 12 months. For contravening the AVO he received a further section 10 bond for six months.

32. He has had what might be described as an outstanding international sporting career. Apart from the domestic violence incident and some traffic offences which I consider to be minor, he appears to have been a useful and productive citizen who has not had any serious problems with the law or behaved in any way, contrary to what the Australian community would accept as appropriate conduct.

33. I accept that the Applicant’s behaviour in relation to the domestic violence incident was out of character and caused by shock. I also accept his evidence that he breached the AVO because of a misunderstanding as to what it actually meant. I note that the Applicant had had no previous experience of dealing with legal issues, the criminal law system or the laws in relation to apprehended violence and domestic violence.

34. I further accept that the Applicant is genuinely remorseful and that he has made a serious (and successful) effort to develop a cooperative working relationship with his wife, in the best interests of his children.

35. In looking at the expectations of the Australian community I am mindful of the fact that Australia is a society in which redemption is possible, especially if behaviour is aberrant or out of character and if there is real remorse and a genuine and sincere effort to reform and to move forward in a positive way.

36. I am of the opinion, based on the evidence presented to the Tribunal and my observations of the defendant during the hearing, that despite what might be regarded as a one-off incident of domestic violence, he is a person of good character within the requirements of the Act. I may have been of a different opinion had there been more than one incident involving any form of violence. I am assisted in coming to this view by the Applicant’s ability to develop a working relationship with his wife for the benefit of his children following the domestic violence incident, his lack of any criminal record prior to the incident either in Australia or in South Africa, and by his subsequent behaviour. I believe that the Applicant has shown himself to be a loyal Australian and a believer in Australian values both at the time he chose to come to Australia and subsequently, up until the present time. He is a productive member of the community in full time employment.

    ISSUE 2: THE APPLICANT’S CHILDREN

37. As I have found that the Applicant is a person of good character, it is appropriate for the two decisions relating to the Applicant’s children to be remitted back to the Minister for reconsideration and it is not necessary to make a determination as to whether the discretion under section 24(2) of the Act should be exercised.

    DECISION

38. The reviewable decision of the Respondent’s delegate dated 23 May 2018 to refuse Mr Virgil Kalakoda’s application for Australian citizenship by conferral is set aside and in substitution the matter is remitted to the Respondent for reconsideration with a direction that Mr Kalakoda is a person of good character and therefore satisfies section 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

39. The two reviewable decisions dated 23 May 2018 refusing Cristian Kalakoda and Alexi Kalakoda’s applications for Australian citizenship by conferral are set aside and remitted to the Respondent for reconsideration.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

............................[sgd]............................................

Associate

Dated: 11 September 2019

Date of hearing:	6 August 2019
Applicant:	In person
Advocate for the additional Applicants:	Mr V Kalakoda
Advocate for the Respondent:	Mr M Gao
Solicitors for the Respondent:	Australian Government Solicitor