Khaustova and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 101
•25 February 2016
Khaustova and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 101 (25 February 2016)
Division
GENERAL DIVISION
File Number
2015/2831
Re
Tatiana Khaustova
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 25 February 2016 Place Sydney 1. The decision under review, being the decision of the delegate of the Minister for Immigration and Border Protection made 27 May 2015 refusing Ms Khaustova's application for Australian citizenship, is set aside.
2. The matter is remitted to the Minister for Immigration and Border Protection for reconsideration in accordance with the direction that as at 17 February 2016 Ms Khaustova is of “good character” within the meaning of subsection 21(2) of the Australian Citizenship Act 2007 (Cth).
..............[SGD].............................................
J W Constance
Deputy PresidentCATCHWORDS
CITIZENSHIP - citizenship by conferral- good character - whether the applicant satisfies the legislative requirement to be shown to be of good character - previous offences - domestic violence - mitigating factors - whether applicant accepted responsibility and shown remorse for actions - decision set aside and remitted
LEGISLATION
Australian Citizenship act 2007 (Cth) ss 21(2)(h), 24
CASES
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
SECONDARY MATERIALS
Australian Citizenship Instructions (Cth) issued 1 July 2014
REASONS FOR DECISION
Deputy President J W Constance
25 February 2016
INTRODUCTION
Ms Khaustova applied for Australian citizenship by conferral on 2 March 2015.
On 27 May 2015, a delegate of the Minister refused the application on the basis that Ms Khaustova had not established that she was of good character at the time the decision was made.
Ms Khaustova has applied to the Tribunal for a review of the delegate’s decision.
For the reasons which follow, the decision under review will be set aside.
BACKGROUND
Unless stated otherwise, the findings of fact in these reasons are based on the evidence of Ms Khaustova. I am satisfied of the facts found on the balance of probabilities.
Ms Khaustova is a citizen of the Russian Federation. She is 42 years old.
In March 2010, Ms Khaustova migrated to Australia with her 12 year old daughter. She is the holder of a subclass BO 116 Carer visa granted on 26 February 2010.
Ms Khaustova’s husband (her daughter’s step-father) arrived in Australia a short time later. The family has since resided continuously in Australia.
Ms Khaustova was charged with the offence of common assault following an incident on 10 February 2013. The facts which gave rise to the charge are set out in the Facts Sheet provided to the Court.[1]
[1] Exhibit R1, p.42.
The Fact Sheet includes the following description of the incident.
On Saturday the 9th of February 2013, [Tatiana’s daughter] left the house to meet some friends in Sydney City. She agreed with her mother to be home about 8 or 9pm.
When [the daughter] had not returned by 10:30pm Tatiana became worried and began calling [the daughter’s] mobile. [The daughter] answered once and told Tatiana that she was in Manly, she would be delayed and that Tatiana was to stop calling her. [The daughter] did not answer her mobile telephone after that. Tatiana obtained the number of the friend that [the daughter] was with and called her. [The daughter] spoke to Tatiana on this phone and told her mother to stop calling her friends.
[The daughter] arrived home at … about 12:30am on Sunday the 10th of February 2013. Tatiana and [Tatiana’s partner] were waiting for her in the lounge room of the house. When they began speaking to [the daughter] she declined to tell her parents specifics of where she had been and that she was old enough to go where she wished. She further re-iterated her desire to return to Russia.
During this argument, Tatiana picked up a belt that was lying nearby on some clothes. She raised it to shoulder height and struck [the daughter] on the buttocks and upper legs four or five times.
[The daughter] ran down the hallway to her bedroom and closed the door. [Tatiana’s partner] opened the door and entered the room with Tatiana. The argument continued and [Tatiana’s partner] grasped [the daughter] by the arms. [The daughter] continued to struggle so [Tatiana’s partner] lay her down on the floor face down and Tatiana hit her on the buttocks again with the belt.
On Monday 11th of February 2013, [the daughter] attended a swimming carnival at her school. A teacher noticed some marks on [her] and asked how they happened. [She] told a version of the events of the previous weekend.[2]
[2] Exhibit R1 pp.43-44.
Following these events the Police obtained Apprehended Domestic Violence orders against Ms Khaustova and her husband.
On 14 May 2013 in the Local Court of New South Wales, Ms Khaustova pleaded guilty to common assault upon her daughter. At the direction of the Court she entered a good behaviour bond for 12 months. The term of the bond expired on 14 May 2014.[3] Ms Khaustova did not breach the terms of the bond.
[3] Exhibit R1 p.45.
The Court also issued a Final Apprehended Violence Order against Ms Khaustova. The order was for a period of 12 months from 14 May 2013.[4]
[4] Exhibit R1 p.48.
THE ISSUE
The only issue for determination is whether, at the time of the Tribunal’s decision, Ms Khaustova is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).
LEGISLATION
Section 21(2) of the Act provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act provides, in part:
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) 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), (3), (4), (5), (6), (7) or (8).
AUSTRALIAN CITIZENSHIP INSTRUCTIONS
The Australian Citizenship Instructions have been adopted by the Minister to guide those making decisions under the Act. Chapter 10 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”.
The Instructions reflect government policy and are not binding on the Tribunal. However, the Tribunal should apply the policy unless there are ‘cogent reasons to the contrary”.[5] There are no reasons not to apply the policy in this matter.
[5] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645.
Paragraph 10.1.2 of the Instructions provides, in part:
‘Good character’ refers to 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 the other commitments made through the pledge should they be approved for citizenship.
This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:
Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion ... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. ... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character. (citations of authorities omitted).
After referring to the judgement of the Court in Irving, Paragraph 10.3.1 provides, in part:
In this context, "moral" does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
§ 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.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
CONSIDERATION
Characteristics of a person of good character
In paragraph 10.3.4 of the Instructions there is a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of Chapter 10. They include:
·respect and abide by the law in Australia and other countries;
…
·not be violent … and not cause harm to others through their conduct.
…
Paragraph 10.5 provides a “Framework for making ‘good character’ decisions”. Its provisions are not exhaustive. The factors listed “may have different weights, depending on the circumstances of the case”. The relevant factors to be taken into account in considering why an applicant might not be of good character (as set out in paragraph 10.5.2) include the following:
·Has the applicant committed any offences and if so, did they admit that in their citizenship application?
·If the applicant has committed an offence, was it serious or minor?
·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?
The offence committed by Ms Khaustova
Within three years of arriving in Australia in 2010, Ms Khaustova committed an offence, which is a serious offence in accordance with paragraph 10.5.2. This paragraph defines serious offence to include:
·crimes of violence, which include domestic violence.
Ms Khaustova disclosed this offence in her application for citizenship.
Irrespective of the definition contained in the Instructions, I have no doubt that the offence committed by Ms Khaustova is one which is regarded by most members of the Australian community as a serious offence.
The offence arose out of a single incident. There is no pattern of criminal behaviour.
Miss Khaustova, then aged 15, was the victim of the offence. She was a vulnerable child who was entitled to trust and to be protected by, her mother and step-father. Instead she was set upon by both of them acting in concert. As Counsel for Ms Khaustova rightly conceded, this must have been a terrifying experience for Miss Khaustova.
Ms Khaustova’s attitude to the law in Australia
Although Ms Khaustova’s breach of Australian law was a serious one, having listened to her give evidence I am satisfied that she now understands the need to observe the laws of this country and that she is genuinely remorseful for the offence she committed. I accept her evidence that this was a “one-off” occurrence. I also note that she observed the conditions of the 12 months good behaviour bond.
Consideration of Mitigating Factors
Paragraph 10.5.2 provides, in part:
Once the behaviour of the applicant has been assessed, the decision maker should turn their minds to whether there are any mitigating factors to be taken into account.
oWhat is the length of time between the date of the offence (if known) and application for Australian citizenship, or between conviction and application? ...
oHas the applicant accepted responsibility and shown remorse for their conduct?
oHow has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?…
oHas the applicant rehabilitated themselves?…
oWhat was the applicant’s age at the time the offence was committed?…
oWere there any extenuating circumstances relating to the offence?
…
Time from offence to application for citizenship
Just over two years elapsed from the commission of the offence by Ms Khaustova until her present application for citizenship. The application was made 10 months after she ceased to be subject to the conditions of the bond.
Ms Khaustova made an application for citizenship in September 2014. This application was refused on the same grounds as her present application as a result of the same circumstances that are presently under consideration.
Remorse and acceptance of responsibility
Ms Khaustova has expressed remorse for her criminal conduct and acknowledged that her discipline of her daughter “had gone too far.”[7] Again, having had the benefit of hearing Ms Khaustova give evidence I am satisfied that she is genuinely remorseful and does accept responsibility for her conduct.
[7] Exhibit A1 para. 6.
Behaviour since the completion of obligations under the good behaviour bond
Since the completion of Ms Khaustova‘s obligations under the good behaviour bond in May 2014 she has not been involved in any behaviour which has brought her to the attention of the Police or other authorities. On the basis of the report of Ms Meylakh, Psychologist and the statement of Miss Khaustova, to which I shall refer later in these reasons, I am satisfied that there has been a significant and sustained improvement in her relationship with her daughter. I note that almost nine months has elapsed since Ms Khaustova’s application was refused by the delegate of the Minister.
Treatment received by Ms Khaustova
In September 2012 (approximately four months before the assault took place), Ms Khaustova sought psychological assessment and treatment from Ms Meylakh, Psychologist. Ms Khaustova consulted Ms Meylakh for approximately 12 months after the assault, on a monthly basis.
In a report dated 14 September 2015[8], Ms Meylakh stated:
[Ms Khaustova] initially presented with mixed anxiety and depression symptoms mostly triggered by her tumultuous relationship with her daughter … She had individual counselling as well as joint sessions with [her daughter] … throughout 2013 and 2014.
……
I support Ms Khaustova in the claim that she has been determined to change her character since committing her offence, and that she suffers great remorse about the incident and understands the seriousness of the matter.
……
I am completely satisfied with the outcome of her psychological intervention and I can witness that since then their relationship has significantly improved.
[8] Exhibit A2
Ms Khaustova’s age
Ms Khaustova was 39 years old at the time of the commission of the offence. Her age at the time is not a mitigating factor.
Extenuating circumstances
Ms Khaustova referred to disciplinary problems with her daughter, stress arising from her and her husband’s lack of employment and cultural differences between Australia and Russia.
I do not regard any of the above as extenuating circumstances in relation to the assault committed on her daughter.
Evidence of Miss Khaustova
Miss Khaustova provided a statutory declaration made 4 February 2015.[9] She did not give oral evidence and was not required to attend for cross-examination.
[9] Exhibit R1 p.49.
Miss Khaustova continues to live with her mother, step-father and maternal grandmother.
In part Miss Khaustova stated:
The relationship between my mother, step father and I is now a loving and amicable family relationship.
There have been no other incidents of disharmony in the family and my mother and step father have encouraged me to pursue my further studies ….
References as to character
Ms Naar
Ms Naar is the director of an agency by which Ms Khaustova is employed to provide home care assistance for aged and incapacitated persons.
In a Statutory Declaration made 8 September 2015[10] Ms Naar stated:
I regard Tatiana as a person of good character, non-violent and I believe that the charge bought against her for this isolated offence is totally out [of] character and a “one-off” isolated matter. Tatiana has never been reported to have exercised any violent or inappropriate behaviour towards any of my agency’s clients
[10] Exhibit A3.
Ms Sattarov
Ms Sattarov is a friend of Ms Khaustova. She provided a statutory declaration made on 3 February 2015[11] in which she stated that she believed Ms Khaustova to be of good character “from witnessing her actions and kind words to others and her relationship with her daughter.”
[11] Exhibit R1 p.51.
Consideration of the character evidence
In reaching a conclusion I must decide whether I am satisfied that Ms Khaustova is of good character at the time of this decision. In doing so, I must be informed by the policy set out in the Instructions. I do not have to make a finding that Ms Khaustova is a person of bad character.
The decision whether Ms Khaustova is of good character is not made by applying the various factors to which I have referred as a checklist. The evidence has to be looked at as a whole.[12] Paragraph 10.5.4 of the Instructions provides, in part:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities.…
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time.
[12] See paragraph 10.1.1 of the Australian Citizenship Instructions.
The statements of Ms Naar and Ms Sattarov indicate that Ms Khaustova is well-regarded by her friends and acquaintances – matters going to her standing in the community – however they provide very limited assistance in assessing her enduring moral qualities. Statements that a person is of good character without providing the basis on which these opinions are based will usually be given little, if any, weight. In this matter the statements as to character do not assist me.
In assessing the references I have considered the provisions of Paragraph 10.6.5:
Referee reports can shed light upon an applicant's character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of "good character". However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, and who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. ...
It is preferable that references are not submitted from family members. However, if they are, less weight should be given to them because of the societal expectation that family members would tend to support one another and play down unacceptable conduct. Decision makers should take particular care with references from victims of domestic violence. There is a risk that such statements have been coerced either directly or indirectly.
DISCUSSION
Taking into account all of the evidence and considering the time which has elapsed since the commission of the offence and since Ms Khaustova became free of the obligations under the good behaviour bond, I am satisfied that she is of good character.
My conclusion must not be seen as in any way excusing or minimising the offence committed by Ms Khaustova. In my view domestic violence against a child is a very serious offence. In this case it was made even more so in that it was committed with the physical assistance of Miss Khaustova’s step-father, causing her physical injury.
However, I have had the benefit of Ms Khaustova giving evidence before me. This was an important factor in reaching the conclusion I have. In addition I was impressed by the fact that Ms Khaustova sought professional help and that her psychologist is of the opinion that she is genuinely remorseful for her conduct.
DECISION
The decision under review, being the decision of the delegate of the Minister for Immigration and Border Protection made 27 May 2015 refusing Ms Khaustova's application for Australian citizenship, will be set aside.
The matter will be remitted to the Minister for Immigration and Border Protection for reconsideration in accordance with the direction that as at 17 February 2016 Ms Khaustova is of “good character” within the meaning of subsection 21(2) of the Australian Citizenship Act 2007 (Cth).
I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
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Associate
Dated 25 February 2016
Date of hearing 17 February 2016 Date final submissions received 17 February 2016 Counsel for the Applicant C Jackson Solicitors for the Applicant City of Sydney Lawyers Solicitors for the Respondent F Taah; Australian Government Solicitor
[6] (1996) 68 FCR 422 at 431-432.
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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