Karatunov and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 132
•8 February 2017
Karatunov and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 132 (8 February 2017)
Division:GENERAL DIVISION
File Number: 2016/0846
Re:Igor Karatunov
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member T. Tavoularis
Date:8 February 2017
Place:Brisbane
The decision under review is affirmed.
.............................[sgd].................................
Senior Member T. Tavoularis
CITIZENSHIP – eligibility – where application for Australian citizenship refused – good character requirements –where Applicant breached Domestic Violence Order – where offending was not disclosed – whether mitigating factors exist – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth), s 21(2)(h)
Cases
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
D’onofrio and Minister for Immigration and Citizenship [2008] AATA 696
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
HSXY and Minister for Immigration and Border Protection [2016] AATA 560
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 and Minister for Immigration and Ethnic Affairs [1994] AATA 326Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Silsby and Minister for Immigration and Citizenship [2007] AATA 1729
Tsai and Minister for Immigration and Border Protection [2016] AATA 411
Secondary Materials
Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10-Character
Department of Immigration and Border Protection (Cth), Australian Citizenship Policy, 1 June 2016, Chapter 11-Character
REASONS FOR DECISION
Senior Member T. Tavoularis
8 February 2017
INTRODUCTION
This is an application for review of a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) dated 29 January 2016, to refuse
Mr Igor Karatunov’s (“the Applicant”) application for Australian citizenship. This refusal 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) (“the Act”). The Applicant has sought review of that decision by this Tribunal. For the following reasons, I affirm the delegate’s decision.
BACKGROUND
The Applicant is 42 years of age.[1] He was born in Evpatoria in the state of Crimea in Ukraine, and first arrived in Australia on 23 October 2008 as the holder of a subclass TR‑676 visitor visa.[2]
[1] See Exhibit 2, Affidavit of Igor Karatunov dated 13 June 2016, [1].
[2] See Exhibit 9, T-Documents, T1, page 9 (see also footnote 44).
On 2 July 2014 the Applicant was granted a Business Skills (Residence) (class DF) State/Territory Sponsored Business Owner (subclass 892) visa and became a permanent resident of Australia.[3]
[3] See Exhibit 9, T-Documents, T4, pp 110 – 114.
On 2 July 2015 the Applicant completed an application for Australian Citizenship by conferral.[4]
[4] See Exhibit 9, T-Documents, T6, pp 118 – 152.
In the process of assessing the Applicant’s eligibility for Australian Citizenship, a delegate of the Minister generated a CRIMTRAC report on 11 December 2015, which revealed that the Applicant had made an appearance at the Richlands Magistrates Court in Queensland on 21 October 2015 for the offence of Contravention of Domestic Violence Order (between 21 July 2015 and 21 September 2015). Whilst no conviction was recorded, the Applicant was found guilty of the offence and fined $500.
On 16 December 2015 the Minister’s delegate wrote to the Applicant requesting a personal response regarding the offence listed in the CRIMTRAC report.
On 23 December 2015 the Applicant’s solicitor provided the Minister with a copy of the Domestic Violence Protection Order dated 26 November 2014, a copy of the Federal Circuit Court Parenting Order dated 15 September 2015 (involving the Applicant’s children), and three signed character references.
On 29 January 2016 the Minister’s delegate reviewed this information and made the decision to refuse the application for citizenship because he was not satisfied that the Applicant was of good character at the time of the decision and consequently did not meet the requirements under s 21(2)(h) of the Act.
On 12 February 2016 the Applicant applied to the Administrative Appeals Tribunal (“this Tribunal”) for a review of that decision.
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, inter alia, that the person “is of good character at the time of the Minister’s decision on the Application”.[5]
[5] Australian Citizenship Act 2007 (Cth), s 21(2)(h).
The Act does not specify the meaning of the words “good character”. However, there is strong authority supporting the idea that the phrase should be used in its ordinary sense. That is, it is 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”.[6] A determination of whether someone is of good character necessitates the “consideration of an aggregate of qualities”.[7] Further, the “enduring moral qualities” of which good character speaks “must be demonstrated objectively over a sufficient period”. The length of time to be considered is not specified; rather, it turns on the circumstances of the individual case.[8]
[6] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431 (Lee J).
[7] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7] (Deputy President McDonald).
[8] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, [67] (Senior Member Toohey).
The Minister adopted the Australian Citizenship Instructions (“ACIs”) to provide guidance to decision-makers on the scope and exercise of their powers under the Act. Most important for present purposes is Chapter 10, which deals with assessments of character.
The ACIs are not the only policy document that is relevant to the facts of this case. The Minister’s Department issued the Australian Citizenship Policy (“ACP”) on 1 June 2016. The ACP replaced the policy guidance content previously provided by the ACIs. The relevant part of the ACP is Chapter 11.
The difficulty that arises is that the Applicant lodged his application before publication of the ACP (ie. while the ACIs were still the official policy guidance), but the hearing was held, and the decision was reserved, after the ACP was issued. The decision of the Tribunal in HSXY and Minister for Immigration and Border Protection[9] provides some guidance on this item. In that decision, Senior Member Cotter noted that:
… notwithstanding the introduction of the ACP, … the ACP and 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. [10]
This point was also considered by Senior Member Poljak in the matter of Tsai and Minister for Immigration and Border Protection.[11] Relevantly, SM Poljak observed:
…. I am considering this matter afresh (de novo) and although the ACIs were the relevant policy guidance at the date the decision was made, the relevant policy from 1 June 2016, and at the time of the hearing, was the Citizenship Policy [ACP]. In any event, whichever policy I consider makes very little difference to the decision I am tasked to make. Both documents are similar on the aspects relevant to this matter.[12]
As there is no inconsistency between the two instruments on the point in question here, the point is moot and I will refer to provisions in both the ACP and ACIs where need be.
[9] [2016] AATA 560.
[10] Ibid, [12].
[11] [2016] AATA 411.
[12] Ibid, [7].
As the instruments are a reflection of government policy, neither is binding on this Tribunal. That does not mean, however, that they should not be applied by this Tribunal. Indeed, there is considerable authority suggesting this Tribunal should apply the government’s policy unless there is cogent reason to the contrary.[13] No such reason has been brought to my attention, so I will apply the ACP and ACIs here.
[13] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644 – 645 (Brennan J).
The ACP defines “good character” as:
… the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and other commitments through the pledge should they be approved for citizenship.[14]
[14] Australian Citizenship Policy, Chapter 11 - Character, page 145 of 237; correspondingly found in Australian Citizenship Instructions, Chapter 10 - Character, at paragraph 10.1.2.
On the point of “good character” as a concept necessarily involving “enduring moral qualities”, the ACIs separate “moral” in this context from any religious connotations it may otherwise have. Instead, it is defined as encompassing:
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.[15]
The requirement of good character goes to the core of the Applicant. Thus, the Applicant’s behaviour is to be regarded as a manifestation of his essential characteristics. Further the ACIs note:
This broad definition means that 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 their migration and citizenship process.[16]
[15] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.3.1.
[16] Ibid.
I note the remarks in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, particularly with regard to the element of time that may have passed between the offending and the Application now before the Tribunal:
“The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. … That [the Applicant] is making a concerted effort to turn his life around, is a positive step; however, it will take longer than 5 years for there to be sufficient evidence that his character has been restored to the level required for a grant of citizenship. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive [the Applicant] of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year's time when he can demonstrate a longer period of positive contribution to the Australian community.”[17]
[17] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
The ACIs then set the characteristics that an applicant of good character would have, including amongst other things: [18]
·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:
o …
o concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
·not be violent… and not cause harm to others through their conduct…
[18] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.3.4.
In addition to the above, paragraph 10.5 of the ACIs establishes a framework within which “good character” decisions should be made. Paragraph 10.5.2 of the ACIs provides a non‑exhaustive list of factors for decision makers to take into account in making this assessment. The precise weighting of the factors is dependent on the circumstances of the case.
For present purposes, the following factors are pertinent: [19]
[19] Ibid, paragraph 10.5.2.
A.Offences
·Has the applicant committed any offences and if so, did they admit that in their citizenship application? …
Note: Decision makers are to accept a Court’s findings concerning an offence to be correct and to put weight on it. It is not the role of the decision maker to “retry” the offence, even if the applicant claims that they were wrongly convicted...·…
·If the Applicant has committed an offence, was it serious or minor. Serious offences include, but are not limited to:
ocrimes of violence (such as… domestic violence…)
o….
·Minor offences include:
o…
oOffences which do not lead to a conviction or sentence.
·Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or the disabled, or others who trusted the applicant?
·….
·How many offences have been committed? Was it a one-off or is there a pattern of criminal behaviour?
oa pattern or behaviour, even of repeated minor offences, shows a disregard for the law and indicates that the Applicant may not “uphold and obey” the law if citizenship is conferred on them.
…
C. General conduct
·…
·How has the applicant interacted with the Australian Government or State/Territory governments? Have they been honest or have they committed fraud… Look at a range of interactions and other information that may be contained in departmental records, such as the visa or citizenship applications….
·Has the applicant engaged in conduct that potentially places children in danger such as unwelcome and/or inappropriate approaches, including by electronic media?
·…
·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?
There are two sets of considerations that are most relevant to the present facts. First, one should look to the Applicant’s behaviour to assess why they might not be of good character. Second, one should look to mitigating factors to establish if, in spite of their behaviour, the Applicant might be of good character regardless.[20] The assessment of these factors must not be made in accordance with the decision maker’s own personal standards. Rather, it is to be judged by community standards. In making this consideration a decision maker must, by examining these various factors, come to a conclusion based on the aggregate of qualities shown by the Applicant. Ultimately, the decision maker “needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time.”[21] The amount of time considered to be “lasting” or “enduring” depends on the merits of the case.[22]
[20] Ibid, paragraph 10.5.2.
[21] Ibid, 10.5.4; and Australian Citizenship Policy, Chapter 11 – Character, page 150 of 237.
[22] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.5.4.
CONSIDERATION
The Pattern of Offending – Domestic Violence
Having regard to the Summonsed Documents[23] there is evidence that the Applicant committed domestic violence against his estranged wife[24] on multiple occasions, including in the presence of two of his daughters. This included:
a)On 4 November 2014 a domestic violence incident occurred between the Applicant and his estranged wife, during which he threatened to kill her.[25] Notably when police attended at the residence they found the aggrieved and the couple’s two children in a bedroom crying. Police also observed the children were visibly distressed with one of the children under the bed crying and unwilling to come out.
b)Following this domestic violence incident, an application for a Domestic Violence Order (“the DVO”) was made by the Queensland Police Service on behalf of the estranged wife.
c)On 26 November 2014 the Queensland Magistrates Court made a DVO under section 37 of the Domestic and Family Violence Act 2012 (Qld) against the Applicant. The persons protected under this DVO included the estranged wife, the couple’s two young children and the estranged wife’s other daughter. The DVO relevantly provides that:
“(1) The [Applicant] be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
….
(7) The [Applicant] is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved. Except in writing through a solicitor”
[23] See Exhibit 7, Respondent’s Statement of Facts and Contentions, Attachment 1.
[24] Note: estranged wife’s name has been redacted in these written reasons.
[25] See Exhibit 8, redacted Witness Statement of the estranged wife, [14].
At the hearing, much was sought to be made on behalf of the Applicant that this DVO was made without admissions pursuant to s 51(1)(c) of the Domestic and Family Violence Protection Act 2012 (Qld). The central tenet of this submission was that the making of the DVO without admissions constituted no finding of domestic violence by the court. I have difficulty in seriously entertaining such a submission. To do so, would render the DVO nonsensical and without legal foundation. The point is that a DVO was made upon certain allegations and circumstances presented to the Court that, in turn, duly convinced it to make that order. Whether or not the allegations and circumstances giving rise to the DVO were either vigorously contested or otherwise consented to by the Applicant (on whatever basis) is of no concern to the Tribunal for present purposes. The point is that the DVO was made.
At the time of the hearing of this matter that DVO was still in place against the Applicant until 25 November 2016. The Tribunal has no evidence of any renewal of the DVO for a period beyond that date.
Between 21 July 2015 and 21 September 2015 the Applicant contravened this DVO on multiple occasions by sending the estranged wife several derogatory and verbally abusive text messages. This conduct was plainly in contravention of the condition not to contact the listed aggrieved persons.
The terms of the messaging are not friendly or “house-keeping” in nature. The words can only be construed as aggressive, threatening and menacing. The terms of the message sent on 22 August 2015 are of particular relevance:
22 August 2015: “You’re [sic] pissed away everything. You thought I will crawl on my knees? I’ll never stoop to the scum. And now each of you will pay $ 100,000! And since you are not too clever and don’t know how to do anything (dick), you have to go and wash someones [sic] (ass).
For the fact that you two did to me and my children, you will answer to God. FOR ALL! !!!!! The Australians will despise you. You will shit your pants to compete with me! Yet I have not got to Yevpatoriya, people do not know the truth about your family. What a fool I am, I had to chase you with filthy broom.”[26]
[26] See Exhibit 7, Respondent’s Statement of Facts and Contentions, Attachment 1, Summons Documents, p. 32.
There was similar conduct on 24 August 2015 when the Applicant sent a text message to the aggrieved saying these things:
24 August 2015: “Are you moron? [sic] I am asking you Scum WHAT DO YOU NEED FROM ME?
I have none left. Even have no car now.
You bitch have been receiving children benefits.
What does she want now? Only diamonds left – to put in her ass!
Listen crud! 20 years I was your slave and worked for you. But used to give my own daughter only $15 per month.
I have a high blood pressure and sore heart when I receive another filth [sic] from you. Or I see your or your eldest daughter mugs.
I curse you and your eldest daughter, be both you in hell. When you croak, first time in my [sic] I will dance with joy”
The text messaging on 27 August 2015 and 10 September 2015 is no more impressive:
27 August 2015: “With respect to Tuesday. I repeat for you – stupid head. I’m not a parasite unlike [sic] you.”
10 September 2015: “So, you don’t dare to call or write to me anymore. You are such a bitch!”
On 21 October 2015 the Applicant pleaded guilty to breaching the DVO. He was ordered to pay a $500 fine but no conviction was recorded. The Applicant’s offence of contravention of the DVO was heard in the Richlands Magistrates Court after his application for citizenship was filed and during the Minister’s decision-making period. The timing of this is important for reasons I will mention later.
Although not the subject of any finding or Order by a Court, the Applicant persisted in this type of conduct beyond the date he was dealt with for the breach of the DVO. An initial point is this: when he was dealt with by the Richlands Magistrates Court on 21 October 2015, it was for conduct constituting a breach of the DVO during the period 21 July 2015 to 21 September 2015. There were additional episodes of this type of conduct recorded by police that traversed 21 October 2015. It is plain from the QPS Summonsed records[27] that there were further reported incidents (1) between 26 September 2015 and 6 October 2015 and (2) on 2 January 2016.
[27] See Exhibit 7, Respondent’s Statement of Facts and Contentions, Attachment 1, Summons Documents, pp. 24-29.
The Respondent submitted it is relevant that the victim of the Applicant’s breach of the DVO was his estranged wife, noting that the ACIs place particular emphasis on offences committed by applicants against a “vulnerable person” who “trusted the applicant”. Additionally, the Respondent pointed to one of the factors of the ACIs that specifically relates to whether an applicant “engaged in conduct that would reasonably cause another individual to be severely apprehensive, fearful, alarmed or distressed regarding the applicant’s behaviour…”[28] The Respondent then submitted the Applicant’s behaviour should be characterised in this manner.[29] I agree with that submission. Putting aside the obvious fact that the estranged wife and the two infant children are named as aggrieved persons on the DVO, the aggressive and menacing nature of the Applicant’s conduct was squarely directed to individuals he knew (or ought reasonably to have known) would cower and otherwise feel vulnerable and submissive to his conduct.
[28] Australian Citizenship Instructions, Chapter 10 – Character, paragraph [10.5.2]
[29] See Exhibit 7, Respondent’s Statement of Facts and Contentions, [40].
The Respondent tendered a Witness Statement from the estranged wife, who attested that during their relationship the Applicant repeatedly physically, verbally, and emotionally abused her. She says she is very frightened of the Applicant because of the violence she has experienced in the past by him. She also has serious concerns about her safety. Additionally, she indicated that the Applicant’s domestic violence had affected their children as they had been witnesses to the incidents of abuse.[30] By agreement of both the Respondent and Applicant, the estranged wife was not called to give evidence at the hearing.
[30] See Exhibit 8, redacted Witness Statement of the estranged wife, [11], [22], [25].
The Commonwealth government takes a very serious stance on domestic violence. Numerous and costly measures are currently being taken to address domestic violence in Australia. Further, in a media release issued in September 2015, Prime Minister Turnbull and a number of other government Ministers expressed the view that domestic and family violence has a devastating impact on the Australian community; that domestic, family or sexual violence is unacceptable in any circumstances, and that the issue must be elevated to our national consciousness.[31] I find this material a persuasive statement of the government’s view on domestic violence.
[31] See to disclose contraventions of the DVO offence
The Applicant failed to inform the Minister about his contraventions of the DVO during his citizenship application process. The offence was not discovered until a CRIMTRAC report was generated by the Minister’s delegate.
The Tribunal notes that question 35(a) of the Application for Australian Citizenship Form asks: “Have you been convicted of, or found guilty of, ANY offences overseas or in Australia…?” The Applicant answered “No”. This was on or about 2 July 2015.
The Applicant is then dealt with by the Richlands Magistrates Court for the breach of the DVO on 21 October 2015. Then, (1) knowing the outcome of his court event for the breach of the DVO on 21 October 2015 and (2) knowing that his application for Citizenship was still live before the Department, the Applicant nevertheless sent a follow‑up written communication on 14 December 2015 to the Department chasing an outcome for his application. In this follow-up communication, he mentions nothing about any court event on 21 October 2015. I find this communication to be disingenuous. Put at its highest, his communication of 14 December 2015 has a reference to “Can you please tell me what wrong [sic] with my documents. … I’m very worried.”[32] We are not told what he is worried about.
[32] See Exhibit 9, T Documents, T8, p. 161.
The Minister’s delegate then sent a notice (dated 16 December 2015) to the Applicant requesting an explanation of the offence dealt with at the court event on 21 October 2015. I accept (and find) that it was only after receipt of this notice that the Applicant, via his solicitor, (on 23 December 2015) provided to the Minister a letter advising of the guilty plea, the circumstances behind the contravention of the DVO and three character references.
In the Statutory Declaration sworn on 23 December 2015 the Applicant said: “At the time of my Application (for Australian Citizenship), I had not been in breach of the Domestic Violence Order dated 26 November 2014 whatsoever.”[33] I think this comment, whilst not demonstrably false, is nevertheless disingenuous. He was dealt with by the Richlands Magistrates Court for the breach of the DVO on 21 October 2015. His Application for Australian Citizenship was still live and in the hands of the Department on that date and was not finalised until 29 January 2016. There was, therefore, sufficient opportunity for this Applicant to inform the Department of his breach of the DVO during the currency of the processing of the Application for Citizenship.
[33] See Exhibit 9, T Documents, T10, pp 171-172, [2].
The ACIs provide that 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 their migration and citizenship processes.[34] [my emphasis]
[34] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.3.1.
In Beyan and Minister for Immigration and Border Protection [2015] AATA 256 this Tribunal commented that:
“It has long been held that a failure to be truthful in dealings with migration officials can constitute evidence that a person is not of “good character”.[35]
[35] Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [63] (Senior Member Walsh).
I therefore accept the Minister’s contention that the Applicant’s conduct, in failing to inform the Department of the outcome of the court event on 21 October 2015, is directly material to any assessment of his character. In addition, I reject any suggestion that either the non‑recording of a conviction for the contravention of the DVO or the fact that it was apparently made without admissions, in any way discharged the Applicant’s obligation to disclose the outcome of that court event to the Department.
The impression to be formed from the totality of this Applicant’s offending
I have had regard to: (1) the circumstances of the conduct leading to initial interest and involvement by the Police resulting in the making of the DVO; (2) the aggressive, menacing and threatening words used from the Applicant towards the estranged wife that resulted in his breaching the DVO on multiple occasions; and (3) the failure to notify the Department of the outcome of the court event on 21 October 2015 (while his Application for Australian Citizenship was still live and current). I am therefore inclined towards the view that the totality of the Applicant’s conduct and offending negatively impacts on any assessment of his character.
MITIGATING FACTORS
That assessment, however, has to be weighed against any mitigating factors that need to be taken into account. They include, inter alia:
·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 making of the DVO;
·whether the applicant has rehabilitated himself;
·whether there were extenuating circumstances surrounding the contravention of the DVO; and
·whether there is evidence of employment and stable and/or community involvement.
Length of Time since offence
It may be suggested that there has been a sufficient lapse of time since the date on which the Richlands Magistrates Court dealt with the Applicant for the DVO contravention on 21 October 2015. The DVO expired on 25 November 2016.[36] I am not aware of whether the period of the DVO was enlarged beyond that date.
[36] See Exhibit 9, T Documents, T5, pp. 115-117.
I am, however, aware of the additional reported incidents (1) between 26 September 2015 and 6 October 2015 and (2) on 2 January 2016.
Having regard to: (a) the circumstances giving rise to initial involvement by police that, in turn, resulted in the initial making of the DVO; (b) the apparently prolonged duration of the conduct by the Applicant likely to result in further breaches and (c) the Applicant’s age during the relevant period (40-41 years of age), 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 conduct constituting both the making of the DVO and the contraventions were simply aberrations and out of character for the Applicant.
The pattern of offending necessarily requires the passage of a sufficient amount of time before one can be satisfied that the person is now of good character. As observed by Senior Member Toohey:
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 individual case.
…
I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so as time passes.[37]
[37] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, [67] and [71] (Senior Member Toohey).
In the absence of any further reported incidents and in the absence of an enlargement of the operative time of the original DVO beyond 25 November 2016, it counts in the Applicant’s favour that something like 15 months have passed without any further offences. However, there is not, in my view, sufficient objective evidence yet of his good character.
I therefore agree with the Minister’s contention that not enough time has passed since the Applicant committed domestic violence against his estranged wife or his breach of the DVO offence for him to positively satisfy the Tribunal that he is now of good character.[38]
[38] See Exhibit 7, Respondent’s Statement of Facts and Contentions, [24].
Acceptance of Responsibility, Demonstration of Remorse and Steps to Rehabilitation
The Applicant has expressed a limited amount of remorse for his conduct in breaching the DVO. In his abovementioned Statutory Declaration he says:
“5. I admit that I sent a few unpleasant messages in reply to my estranged wife’s constant demands for money.
6. I understand that my actions were not appropriate and I have since reassessed my actions on advice from the Court and my Solicitor.”[39]
[39] See Exhibit 9, T Documents, T10, pp 171-172, [5-6].
While there is an acknowledgement of “unpleasant messages”, there is a purported and parallel self-serving justification that they were sent in response to the estranged wife’s “constant demand for money”.
There is no independent evidence of attempts at rehabilitation such as, for example, the completion of an anger management course or other counselling. Any reassessment of his conduct has been “… on advice from the Court (that sentenced him) and my [his] Solicitor (who presumably represented him at the hearing)”.
The Applicant’s conduct post contravention offence
At the risk of sounding repetitious, the Applicant’s conduct post the court event on 21 October 2015 does not bode well for any assumption that this factor should mitigate in his favour. As mentioned, there were additional and reported incidents (1) between 26 September 2015 and 6 October 2015 and (2) on 2 January 2016.
Age during the period of offending
The Applicant was a mature man of 40 years at the time of the original conduct necessitating police involvement and the making of a DVO. The relationship with the estranged wife was not a fleeting affair. There was history in the relationship involving her making a move half way around the world with their two infant children to be with him. It involved a challenge to the relationship arising from the estranged wife’s refusal to allow the Applicant’s daughter from a previous relationship to be part of the family unit in Australia. It involved the Applicant and his estranged wife raising two children of their own while, at the same time, seeking to establish themselves in small business in a new country.
One would therefore have expected an applicant of this age and with his life experience to be more measured and controlled in dealings with his estranged wife, even in circumstances where the relationship was strained both at a personal level and as a result of difficulty arising from the conduct of their business affairs. I cannot accept (nor was it directly put to me)[40] that his behaviour should be viewed in the context of a person relatively new to this country who may have had a different attitude to the conduct of interpersonal relationships than that expected of a reasonable spouse in Australia.
[40] However, see commentary about references paras [71]-[81] of this decision where there is short reference to a cultural element.
The Stabilising Effect of Marriage
Though the stabilising effect of a healthy relationship may be viewed as a mitigating factor by the Tribunal,[41] that is contingent on the relationship either changing, or indicating a change in, or being likely to change, the Applicant’s pattern of behaviour. The fact that the relationship did not have a calming influence on the Applicant during his period of offending is, to my mind, significant, and consistent with the theme of his behaviour both prior to and after he was dealt with by the court on 21 October 2015.
[41] Department of Immigration and Border Protection (Cth), Australian Citizenship Instructions, 1 January 2016, Chapter 10-Character, paragraph 10.5.2, page 136 of 207; see also Silsby and Minister for Immigration and Citizenship [2007] AATA 1729.
I have difficulty in convincing myself that the stabilising effect of a healthy marital relationship should be viewed as a mitigating factor for the purposes of assessing this applicant’s character. The omens are not good:
1)although the estranged wife did make the commitment to relocate with the children from the Ukraine to Australia, there was tension and disagreement even before her arrival due to her refusal to allow the Applicant’s daughter from a previous relationship to join the family unit here;
2)the two attempts at establishing a small business, although commendable and indicative of ambition and industry, both seem to have gone awry. The inevitable consequences of uneasy and circling creditors based largely on a shortfall in the achievement of expected business outcomes did, as well, contribute to the marital tension. Indeed, viewed in a negative light, if there were to be a situation where creditors “called in everything”, the financial position of the Applicant and his estranged wife would no doubt be dire. The evidence is clear that much of the latent tension and anger in the relationship (especially from the Applicant’s side) derives from this not insignificant financial pressure; and
3)the Applicant and his estranged wife were, until 15 September 2015, in the midst of contested family law proceedings involving property settlement and children’s issues. The ongoing behaviour of the Applicant towards the estranged wife, even after these orders were made, indicates a residual and simmering tension between him and his estranged wife.
In light of this evidence, I cannot conclude that the Applicant’s relationship with the estranged wife either has been or will be any sort of catalyst, effecting a change in his pattern of behaviour to any positive extent.
Extenuating Circumstances
The Applicant attempted to explain that his actions were caused by extenuating circumstances, namely in relation to the financial pressures imposed on him as a result of the conduct of his estranged wife.[42]
[42] See Exhibit 1, Applicant’s Statement of Issues, Facts and Contentions, [3.16].
The ACIs give specific examples of extenuating circumstances. This includes instances where the offence was committed under duress or under periods of psychological disturbance.[43] This requires proof that a given offence is directly attributable to, for example, the involuntary effects of medication or a temporary psychological condition. Any claims of mental illness should be supported by a psychiatrist’s report. This Applicant has not provided any evidence to this end.
[43] Australian Citizenship Instructions, Chapter 10 – Character, paragraph 10.5.2, see Exhibit 9, T-documents, p 99.
At the risk of repeating myself, I should say that I understand and accept the financial difficulty and pressure on this Applicant and his estranged wife resulting from the attempts at establishing and sustaining small businesses. However, the ACIs can only assist him for mitigation purposes if he can establish, with the necessary medical evidence, that the circumstances of this financial pressure, including any alleged conduct by the estranged wife that may have contributed to that pressure, have caused him some identifiable psychological disturbance or some diagnosed psychological condition. No such evidence was put before the Tribunal.
In the absence of that evidence, a decision maker in my position can only reasonably conclude that his behaviour culminating in the court event on 21 October 2015 was otherwise impulsive (due to a lack of anger control on his part) and otherwise oriented towards “getting square” with the estranged wife because he may have thought (and continue to think) she was getting the better outcome from (1) meeting demands from creditors and/or (2) parenting arrangements and/or (3) any division of matrimonial assets.
Employment history, family life and/or community involvement
The Applicant is a diligent worker with an entrepreneurial orientation. He has previously acquired and sought to establish three businesses comprising two ice-cream home delivery franchises and a Michel’s Patisserie franchise. Those businesses are no longer under his control and his primary work activities now involve taxi-driving and courier delivery work.
There can be little or no question of his diligence and industry immediately upon his arrival in this country.[44] He found full time employment at Australian Country Choice abattoir at Murarrie, Brisbane where he remained until mid-late 2011 when he acquired his first franchise business on or about 18 October 2011.[45]
[44] There is a lack of clarity in the material as to the Applicant’s date of arrival in Australia. There seem to be two dates: 23 October 2008 – see Exhibit 9, T-Documents, T1, page 9; and 20 December 2010 - see Exhibit 2, Affidavit of Igor Karatunov dated 13 June 2016, para. 12.
[45] Exhibit 2, Affidavit of Igor Karatunov dated 13 June 2016, para. 21.
He is also a provider for his family paying the sum of $1,283.33 for child support each month, $650.00 by way of a payment plan for a previous claim and $633.83 for the current period.[46]
[46] Exhibit 2, Affidavit of Igor Karatunov dated 13 June 2016, para. 56.
Although there is no direct evidence of contributions by the Applicant to the community, he seems to be a respected member of his community judging from what his referees say of him. In addition, there is nothing in his criminal history – aside from the conduct in and around the court event on 21 October 2015 – to indicate he is habitually antisocial, either within his own ethnic community or in the broader community. Plainly, there would be no requirement for this review if the Applicant’s domestic behavioural history were as impressive as his work history and his willingness to contribute and sustain the children for which he remains responsible.
Issue of potential statelessness
The Applicant argued that the present matter before the Tribunal relating to his citizenship would have a real impact on him, and if it was found that he was not of good character and did not obtain Australian citizenship, he was at risk of becoming a stateless person.[47] The Applicant currently holds a Ukrainian passport, expiring in February 2019.[48]
[47] See Exhibit 1, Applicant’s Statement of Issues, Facts and Contentions, [3.21] and Exhibit 2, Affidavit of Igor Karatunov, [80].
[48] Exhibit 9, T-Documents, T6, page. 131.
Ms Pearson, a legal secretary for the Applicant’s Solicitors, provided the Tribunal with an Affidavit outlining the enquiries she had made in this regard. According to her enquiries with the Russian Embassy, the Applicant would not be eligible for Russian citizenship as he was not the registered owner of any property in Crimea on 18 February 2014. The Ukrainian Embassy advised that the Applicant would be required to apply for renewal of his Ukrainian passport before it could be determined whether he is able to remain a Ukrainian citizen.[49]
[49] See Exhibit 6, Affidavit of Olena Pearson dated 15 June 2016.
Be that as it may, it is clear that the Applicant, his estranged wife and their two children were all granted permanent residency in Australia on 2 July 2014.[50] Any finding that this Applicant is not of good character now is not determinative of a finding that he is of good character in the future. He could apply again in the future and, provided enough time has passed, and he has not reoffended, there is every possibility of his becoming an Australian citizen. Nor does an adverse finding here impact on his current permanent residency status. Consequently, I do not consider that this weighs against a potential finding that the Applicant is not of good character.
[50] Exhibit 2, Affidavit of Igor Karatunov dated 13 June 2016, para. 35.
Do the Applicant’s References assist him?
Character references were provided on behalf of the Applicant, by Joseph Robson, Pavlo Samtsov, and Michael Uspensky. Mr Samtsov and Mr Uspensky provided evidence in person at the hearing and Mr Robson by telephone.
Mr Samtsov attested that he has known the Applicant for eighteen years as they were neighbours in Crimea. Due to the Applicant’s positive feedback of his experiences in Australia, Mr Samtsov too became interested in settling in Australia and, in fact, did so. Mr Samtsov’s application for citizenship has recently been approved. Mr Samtsov says the Applicant is a good father, who cares about his children a lot and is proud of their achievements.[51] The Respondent questioned Mr Samstov about the Applicant’s breach of the DVO. Mr Samstov said he knew limited details about the DVO but explained that arguments between spouses were common in Russian domestic life. Mr Samtsov told the hearing that the Applicant told him of his frustration with his home life and that he (the Applicant) was having family issues.
[51] See Exhibit 4, Affidavit of Pavlo Samtsov dated 13 June 2016.
Mr Uspensky attested that he knew the Applicant in the capacity of being a regular customer of his Home Ice Cream delivery business for over two years. They became friends because they shared a Russian background and fluency in Russian. Mr Uspensky said that the Applicant was a hard worker who worked long hours to provide for his children. He said the Applicant had told him about the DVO and that he (the Applicant) was very remorseful about it. Mr Uspensky opined that domestic violence should be viewed seriously but that some people have used allegations of domestic violence in a vexatious manner. Mr Uspensky said the Applicant had told him that his ex-wife had made up the circumstances of domestic violence for the purposes of preventing the Applicant from seeing his children. As I understand Mr Uspensky’s evidence, the Applicant then told him that he sent text messages to his estranged wife and thus, breached the DVO.
Mr Uspensky described the breach of the DVO as a “brain snap” on the Applicant’s behalf. Despite these events he thought the Applicant was a person of good character and repute; that he worked ridiculously hard to provide for his children and that he has personally never seen him angry, only upset, and that other people thought of him as a really nice person.[52]
[52] See Exhibit 3, Affidavit of Michael Uspensky dated 10 June 2016.
Mr Robson told the hearing that he has known the Applicant for approximately four years in his capacity as the Operations Manager of Home Ice Cream in Brisbane. He said although their friendship started from a business relationship, it progressed into a more personal relationship because Mr Robson once had a Russian partner and that he was thus familiar with Russian culture. Mr Robson said the Applicant had only spoken briefly to him about the circumstances leading to the DVO and its breach. The Applicant told him his estranged wife had only sought the DVO to obtain access to government benefits and to otherwise keep the applicant away from the children.
Mr Robson agreed that domestic violence should be viewed very seriously. He said that the DVO and its subsequent breach were out of character for the Applicant and that this conduct could be attributed to bad judgment on his part during a very stressful period in his life. Mr Robson thought the Applicant’s marriage break up deeply affected him and also shocked him. He said the Applicant was hard working and showed consistent takings as a franchisee. He noted that the Applicant loved his daughters and, despite the circumstances in and around the DVO, the Applicant was nevertheless a person of good character and moral repute.[53]
[53] See Exhibit 5, Affidavit of Joseph Robson dated 10 June 2016.
The Respondent contends that with reference to page 155 of the Citizenship Policy and paragraph 10.6.5 of the ACIs, these three references should be construed as inherently biased in favour of the Applicant and, as such, little weight should be allocated to them as a factor in support of mitigation. I think such a contention, although fairly made and valid, needs to be couched in more detailed terms. These references are from good friends and acquaintances of the Applicant. As such, could they realistically be expected to be anything other than favourable towards him? I think not. Therefore, I do not consider that a mere assertion of bias against these three referees takes a decision maker anywhere in terms of assessing how they should be weighted for an assessment of someone’s character.
To my mind, the more critical exercise in examining references in applications such as this involves a decision maker asking this question: what, if anything, do these references say (or not say) – at a genuinely forensic level – about the factors contributing to, and the nature of, the very conduct resulting in the offending that necessitates an assessment of someone’s character? Here, from the three references, I can only glean two, albeit superficially made, comments or themes about the factors behind and nature of the Applicant’s conduct.
First, in his reference, Mr Uspensky talks about the Applicant’s remorse about the circumstances surrounding the DVO. Mr Uspensky spoke of a “brain snap” on the part of the Applicant. But this evidence can only be taken so far because it is almost immediately counter-balanced by (1) a protective assertion that the Applicant told him that his estranged wife had made up the circumstances of the DVO for the purpose of preventing the Applicant from seeing his children and, (2) that in all other respects, the Applicant was of good character and repute and was also hardworking. When viewed in this context, one can understand how a decision maker has difficulty in allocating any meaningful value or weight to Mr Uspensky’s evidence of an apparent “brain snap”. This is especially so in circumstances where there is no detail around that “brain snap” and where that evidence is sought to be counter-balanced by other predictable and platitudinous comments about the Applicant. Further, the evidence of a “brain snap” is not complemented by any evidence adduced by the Applicant himself demonstrating that psychological trauma (or its equivalent) was the primary cause behind the “brain snap” behaviour apparently leading to the DVO circumstances.
Second, Mr Samtsov makes the same generally positive comments about the Applicant being a good person, of good character and hardworking. Interestingly, there was an inkling in his evidence as to a possible cause or explanation behind the behaviour leading to the DVO circumstances. Mr Samtsov spoke of his knowledge that arguments between spouses were common in Russian domestic life. That assertion is, at first blush, concerning because no matter what the position may be in Russian domestic life, no form of domestic violence is tolerated in the Australian community. Unfortunately, there was no evidence from Mr Samtsov – at a genuinely forensic or detailed level – that the Applicant’s conduct could somehow be explained or understood on the basis of cultural reasons. Instead, Mr Samtsov touches on the cultural element but then reverts to the usual and platitudinous commentary all too familiar in references sought to be relied on in these types of matters. Again, one thus has difficulty in attaching any level of weight to this reference for an assessment of the Applicant’s character.
Mention should also be made of Mr Robson’s reference. In a similar vein to that of Mr Samtsov, Mr Robson also touches on the cultural element and says his partner of some time ago was a Russian woman and that he was familiar with Russian culture.[54] Again, in the absence of greater particularity and detail, the reader of this reference sees a statement such as this (i.e. the cultural reference) and wonders why it was inserted and what it really speaks to. Although it appears in the written reference, it does not go towards any explanation of the Applicant’s conduct. It can only be regarded as a bald statement and, as such, the balance of the reference is of only limited, if any, weight for the purposes of assessing this Applicant’s character. He makes the reference to the cultural element but then reverts to the counter-balancing line that the estranged wife contrived the DVO circumstances to preclude the Applicant from seeing the children and to obtain government benefits.
[54] Exhibit 5, Affidavit of Joseph Robson, para. 2.
Some final points
It should be noted the Applicant contends[55] that the extenuating circumstances giving rise to the DVO derive from the breakdown of his marriage and the behaviour of his estranged wife during this period. This contention should be rejected.
[55] Exhibit 2, Affidavit of Igor Karatunov dated 13 June 2016.
Behaviour constituting domestic violence, even in circumstances of direct physical provocation from the aggrieved party, adversely impacts on the assessment of an Applicant’s character. The Respondent referred to this Tribunal’s comments in Karim and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 916 at 25-27:
“Mr Karim said that he and his wife were very unhappy in their marriage and that he was a very frustrated man. He said that he is remorseful and ashamed for his actions in hitting his wife and will never do so again. However I note that in the record of his interview by the Police he described the incident as a “very, very simple thing”.
All forms of domestic violence are unacceptable in the Australian community and the fact that Mr Karim’s wife may have assaulted him by spitting does not excuse his conduct. Furthermore, his actions involved his daughter who witnessed at least part of the assault.
I regard the offence as serious. The victim, Mr Karim’s wife, was entitled to trust him to behave properly, as was his daughter.”
I therefore agree with the Minister’s contention at paragraph 62 of the Respondent’s Statement of Facts and Contentions that the Applicant’s conduct in committing domestic violence against his estranged wife, including in the presence of two of his daughters, is unacceptable and adversely impacts on his character.
As mentioned above, it is open to the Applicant to bring a future application for Australian citizenship. Provided enough time has passed and he has not reoffended, there is every possibility of him becoming an Australian citizen. Any finding that this Applicant is not of good character now is not determinative of a finding that he is of good character in the future.
As to the element of time, this Tribunal, in the matter of D’onofrio and Minister for Immigration and Citizenship [2008] AATA 696, said:
“The applicant needs to establish a longer offence free period and provide strong referees who are fully aware of his prior history and yet are willing to attest to his good character and standing in the community if he hopes to be successful in a future application … it will take some more time of him remaining free of offending before the Tribunal can accept that he has met the requisite character standard required for a grant of citizenship.”[56]
[56] D’onofrio and Minister for Immigration and Citizenship [2008] AATA 696, [57] (Senior Member Hastwell).
CONCLUSION
I consider and find that the following factors compel me to not be satisfied that the Applicant is of good character for the purposes of section 21(2)(h) of the Act:
a)The totality of this Applicant’s offending, specifically:-
i.the circumstances of the conduct leading to initial interest and involvement by the police resulting in the making of the DVO;
ii.the aggressive, menacing and threatening words used by the Applicant towards the estranged wife resulting in the court event of 21 October 2015;
iii.the failure to notify the Department of the outcome of the court event (breach of the DVO) on 21 October 2015 (while his application for Australian Citizenship was still live and current).
b)The absence of any sufficient number of mitigating factors, specifically:-
i.The passage of an insufficient amount of time for one to be satisfied that the Applicant is now of good character;
ii.His limited and conditional expression of remorse qualified by both the Applicant and his referees attributing some responsibility and/or ulterior motive on the part of the estranged wife for the circumstances of the DVO;
iii.Although the court event dealing with contravention of the DVO occurred on 21 October 2015, there were additional and reported incidents between 26 September 2015 and 6 October 2015 and on 2 January 2016;
iv.The Applicant was a mature man at the time of the original conduct necessitating police involvement and the eventual making of a DVO;
v.An absence of genuine and medically provable extenuating circumstances;
vi.The largely self-serving, biased and insufficiently particularised references on which to make any finding of mitigation and/or extenuating circumstances.
I am therefore not satisfied that the Applicant was of good character under section 21(2)(h) of the Act. Consequently, I do not believe he is presently eligible to become an Australian citizen.
I accordingly affirm the decision under review.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis
.................................[sgd]......................................
Associate
Dated: 8 February 2017
Date(s) of hearing: 6 September 2016 Date final submissions received: 19 September 2016 Counsel for the Applicant: P Jeffery Solicitors for the Applicant: Pearson & Associates Advocate for the Respondent: R Noronha Solicitors for the Respondent: Clayton Utz
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