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

[2022] AATA 4021

Karunakaran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 4021 (25 November 2022)

Division:GENERAL DIVISION

File Number(s):      2021/5081

Re:Pirakash Karunakaran

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Mrs J C Kelly, Senior Member

Date:25 November 2022

Place:Sydney

The reviewable decision is affirmed.

...............................[sgd]........................................
Mrs J C Kelly, Senior Member

Catchwords

CITIZENSHIP – application for citizenship by conferral – citizenship application refused – whether the Applicant is of good character at the time of the decision – domestic violence – apprehended violence order – good behaviour bond – failure to disclose convictions – whether reasonable time has passed since offences – reviewable decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Crimes (Sentencing Procedure) Act 1999

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; 231 FCR 128

Secondary Materials

The Citizenship Procedural Instruction 15 – Assessing character under the Citizenship Act

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

25 November 2022

The application

1. The Applicant, Mr Karunakaran, has applied to this Tribunal to review a decision refusing his application for Australian citizenship because he was not of good character.

2. I have to decide whether I am satisfied that he is of good character at the time of the decision, as required by subsection 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).

3. The decision I am reviewing was made by a delegate of the Respondent Minister on 9 July 2021.

   Relevant legislation and policy

4. Section 21(1) of the Act provides that a person may apply to the Minister for Australian citizenship by conferral. Section 24(1) of the Act states that, if a person makes an application for Australian citizenship by conferral under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

5. Section 24 of the Act contains several subsections which prohibit the conferral of Australian citizenship in certain circumstances. Relevantly, section 24(1A) of the Act provides:

   The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2).

6. Subsection 21(2) of the Act sets out the matters of which the Minister must be satisfied to approve a person becoming an Australian citizen. For the purposes of this review, subsection 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ’is of good character’ at the time of the decision.

7. The term ’good character’ is not defined in the Act, which indicates Parliament’s intention for the term to be used in a ’broad way’ and to allow decision-makers to consider ‘a range of events and conduct connected with the applicant’.[1] The expression ’good character’ requires a ’discretionary value judgment’ which is to be confined only by the subject matter, scope, and purpose of the statutory provisions.[2]

   [1] Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; 231 FCR 128, [60].

   [2] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574, [51].

8. The Citizenship Procedural Instruction 15 ’Assessing character under the Citizenship Act’ (CPI 15) identifies the legal requirements and related policy and procedures that apply to the assessment of an application for Australian citizenship under the Act.

   Undisputed facts

9. The Applicant is a male citizen of Sri Lanka. He arrived in Australia on 11 September 2012 as the holder of a Prospective Spouse (Subclass 300) visa, which was granted on 23 August 2012 while the Applicant was offshore. He is presently 42 years of age.

10. On 5 June 2013, the Applicant was granted a Temporary Spouse (Subclass 820) visa.

11. On 10 November 2015, the Applicant was involved in an incident of domestic violence with his then wife, M, at their home (the 2015 offence). On the same day, the police took out an Apprehended Violence Order (AVO) against the Applicant to protect M. 

12. The Applicant was also granted bail on the condition that he not assault, molest, harass, threaten or otherwise interfere with M.

13. On 26 February 2016, the Applicant appeared in the Local Court of New South Wales.  The first matter dealt with was M’s application to vary the AVO by removing two orders preventing the Applicant from entering premises where she lived or worked, and not to approach her within 12 hours of drinking alcohol. He was strongly resolved to stay away from alcohol for the sake of the family. The reasons M wanted the orders removed were that the Applicant had stopped drinking and there had been no trouble between the parties since the date of the offence. The magistrate made the final AVO for 12 months with orders that he not assault, molest, harass, threaten, or otherwise interfere or intimidate or stalk M.

14. The second matter dealt with on that day was the substantive offence. The Applicant entered a guilty plea to the charge of common assault (DV). He said that he would not do it again, which the magistrate took as ‘true remission and remorse’. The Applicant was issued a good behaviour bond for 12 months and convicted pursuant to section 9(1) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing and Procedure Act) to commence on that date and ending on 25 February 2017.

15. The magistrate said:

    The Courts have repeated time and time again that domestic violence will not be tolerated in the community. The cost to the community quite apart from what takes place in the actual costs concerning repairs to broken bodies is enormous. The fact that assaults take place in front of children is a tragedy. Now I am not saying on this occasion that it was at the worst end of the scale but it is domestic violence. One of the matters that I have to take into account is the general deterrent effect. To let the rest of the community know that domestic violence is simply unacceptable.

    Now, I have got to balance that against the fact that you have come before the Court. I believe that you are truly contrite in the proceedings and so that is why I intend to deal with the matter in such a lenient manner.

    …

    Usually there would be conditions and usually there would be a fine but I am not imposing a fine or conditions.

16. The Applicant lodged an appeal but subsequently withdrew it. He said that was because M failed to give the court her bank statement. The transcript of the appeal proceedings on 18 May 2016 show that he told the presiding judge that he wanted to withdraw the appeal. He was assisted by an interpreter.  

17. He did not breach the bond.

18. On 19 December 2017, the Applicant was granted a Permanent Spouse (Subclass 801) visa.

19. On the afternoon of 8 March 2018, the applicant and M were involved in another incident of domestic violence at M’s home (the second offence). The Applicant defended the charge before the magistrate on 11 May 2018. M, her 23-year-old daughter from another relationship who was a witness, and the Applicant gave evidence and had given statements to the police. The magistrate made the following findings. The Applicant reported to a police station at 6:15pm on the same day regarding the assault upon him by ‘his former or estranged wife’. The investigating officer did not find any indication that the Applicant was drug or alcohol affected.  He and M had lived under the same roof but apart for some years. Earlier in the day, the Applicant had contacted M to remove personal effects from the home. She consented. The arranged time was 4pm.

    The only finding of fact on the available evidence is the complainant and her daughter and the defendant were in the self-same room. An argument, disagreement arose.

    …

    There can be no doubt that there was this hole in the bedroom wall. It was not there before the pair argued. Two witnesses swear as to how it came to be damaged. In question and answer 64, the defendant acknowledged that he did push his wife or her because both the complainant and her daughter were unmoved in terms of grabbing or scrunching her hair or her ponytail, albeit denied by the defendant. As a finding of fact, the Court accepts that indeed there were these exchanges, and it culminated in the hair grabbing or pulling, and the Court accepts that it was only by way of a ducking motion that the complainant was not struck or punched, but rather the defendant's hand went to the damaged wall.

20. His Honour also observed:

    Obviously it was in a situation which your counsel describes as a tense situation, albeit a domestic situation. It was certainly against the background of some angst apparently starting about seven days earlier when the direction request had been made to you to leave the home which you were both sharing, albeit not living in. Unfortunately this is not the first occasion you've been to a Court for a matter of violence, and it's not the first occasion where your estranged or former wife finds herself yet again as a victim of violence.

21. The Applicant was convicted of common assault (DV) and a section 9 bond for 12 months was imposed, to end on 10 May 2019. An AVO for 24 months was issued, effective immediately (i.e., until 10 May 2020).

22. On appeal in the District Court of New South Wales, on 6 June 2018, Judge Delaney noted that the appeal against conviction was withdrawn and dismissed the conviction appeal. Having read the material before him, His Honour said:

    These documents indicate an ongoing problem which requires attention from a number of sources. In my opinion the attention that is required is for a longer period than the 12 month s 9 bond and I consider that appropriately in this case, notwithstanding the very cogent submissions made by the Crown in relation to it, there should be a s 10 bond for two years to be of good behaviour and appear if called upon.

23. Pursuant to section 10 of the Sentencing and Procedure Act, the facts of the offence are found to be proven but no conviction is recorded.

24. The Applicant supports his parents financially. They live in Sri Lanka.

25. On 30 January 2019, the Applicant applied for Australian citizenship by conferral (the first application).

26. On 8 February 2019, the Applicant failed to disclose that he had been convicted or found guilty of any offences on an incoming passenger card.

27. On 20 March 2019, the Applicant and M divorced.

28. On 5 August 2019, a delegate refused to grant the Applicant citizenship. The delegate found the Applicant was not of good character, given his history of domestic violence offending, his failure to disclose his criminal convictions on incoming passenger cards completed on 8 February 2019 and his lack of regret or remorse for the first and second incidents. The delegate was also not satisfied that a reasonable time had passed since the Applicant’s offending for him to establish that he was now of good character, noting in particular that he was still subject to the section 10 bond. Approval was also prohibited by section 24(6) of the Act because the Applicant was still subject to the section 10 bond.

29. On 2 November 2020, the Applicant lodged a second application for Australian citizenship by conferral. He included a copy of his National Police Certificate with his application.

30. On 19 May 2021, during the citizenship interview, the Applicant declared his offences to a Departmental officer.

31. On 7 June 2021, the Department wrote to the Applicant inviting him to comment on his criminal history and his previous failure in February 2019 to record on an incoming passenger card that he had been convicted or found guilty of any offences, including in Australia or overseas.

32. On 3 July 2021, the Applicant responded, apologising for not disclosing that he had been convicted or found guilty of any offences. He claimed he was ’scared to answer yes’ as he thought something might happen.

33. On 9 July 2021, the reviewable decision was made. The delegate found that the Applicant was not of good character because of the seriousness of his previous offending and his failure to disclose that offending in the incoming passenger card. The delegate was also not satisfied that a reasonable time had passed since bond restrictions had been lifted (i.e., since June 2020) for the Applicant to establish a pattern of good behaviour.

    Consideration

34. As outlined in citizenship policy, an applicant of good character would respect and abide by the law of Australia and other countries and would not conceal the truth or be involved in domestic violence and accept responsibility for their actions.

35. Under citizenship policy, crimes that are considered to be serious include crimes of violence, including domestic violence. Both the Applicant’s offences involved domestic violence against his then wife.

36. I accept the findings of fact made by the courts in relation to the offences and consider the comments of the presiding officer about the seriousness of the offences. The sentences reflect the degree of seriousness of those offences. I do not accept the Applicant’s evidence about the facts of the offences where it contradicts the findings of the presiding officer. Both offences were at the lower end of such offending.

37. The Applicant did not breach either of the two AVOs issued in 2016 and 2018 or either of the two bonds imposed for his offending. His second offence was committed on 8 March 2018. The bond ended on 5 June 2020.

38. The Applicant said that his relationship with M was over by sometime in 2016 but he continued to live in the same house until about February 2018. 

39. The Applicant was questioned to the effect that he misled the Australian government about the status of his relationship prior to being granted his Permanent Spouse (Subclass 801) visa on 19 December 2017. The Applicant said that he did not know the law; they were living in the same house and M did everything. He was not asked whether he was asked to leave the house because he had been granted his permanent visa. In any event, M did not require him to move out for 18 months or more after their relationship had ended. On the evidence, I am unable to make a finding on whether he misled the Australian government in this respect.

40. The Applicant did conceal the truth when he failed to disclose that he had been convicted or found guilty of any offences on an incoming passenger card on 8 February 2019, just a week after applying for citizenship. Being ‘scared to answer yes’ and he might not be allowed back into the country, does not excuse the behaviour. He knew having offences was not in his favour and deliberately did not disclose them.

41. The Applicant provided evidence supporting that he is a person of good character.

42. A colleague, who is a Justice of the Peace, provided a letter of support. He knew the Applicant through work and community activities. He was aware of the two offences. In his opinion, they were ‘totally out of his character and extremely surprising’.

43. The Applicant had reference letters from two previous employers and a friend, all of whom gave evidence. One of the witnesses did not know about his offences. The other two did.  All were very supportive of the Applicant. 

44. The Applicant has been employed since 2013, except for a short period, as a picker and packer in a warehouse, a machine operator, building maintenance officer, and handyman. 

    Conclusion

45. I am not satisfied that the Applicant is a person of good character at the time of decision because not enough time has elapsed for him to establish a pattern of good behaviour since his offending in 2018, and the end of his bond in June 2020, and the end of the AVO in May 2020, both of which may have had a constraining effect on his behaviour. The period between the Applicant’s two offences was two years and four months. A little more than that time has elapsed since the bond ended. The Applicant has also had the further constraint on his behaviour - this pending citizenship application.

46. That his relationship with M has ended does not satisfy me that his offending will not reoccur. The evidence does not suggest that he has been involved in any domestic relationship since he left M’s home. Relationships with employers, work colleagues and friends are of a very different nature from the close relationships with people within one’s domestic circle. How he will conduct himself in another domestic relationship is unknowable. I am not suggesting that it is necessary that he be involved in such a relationship so that his behaviour can be tested before he may be found to be a person of good character. It is just that insufficient time has elapsed to date for me to be satisfied that he is a person of good character.

    Decision

47. For the above reasons, the reviewable decision is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 25 November 2022

Date of hearing:	9 December 2021
Counsel for the Applicant:	Mr G Foster
Counsel for the Respondent:	Ms A Wong