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

[2020] AATA 779

Kulkarni and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 779 (9 April 2020)

Division:GENERAL DIVISION

File Number(s):      2019/5166

Re:Mahesh Sadashiv Kulkarni

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:9 April 2020

Place:Sydney

The decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs of 25 July 2019 to refuse Mr Mahesh Sadashiv Kulkarni’s application for Australian citizenship by conferral because he did not satisfy the requirement in subsection 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (Act) that he be of good character at the time the application was determined, is set aside.

In substitution, it is decided that Mahesh Sadashiv Kulkarni is of good character at the time his application is determined and his application for Australian citizenship is approved under section 24 of the Act.

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

Mr Rob Reitano, Member

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship – whether applicant is of good character at the time of decision – meaning of ‘good character’ – enduring moral qualities – whether the applicant satisfies the requirements under s 21(2) – domestic violence – citizenship policy – decision under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Secondary Materials

Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)

REASONS FOR DECISION

Mr Rob Reitano, Member

9 April 2020

1. Violence of any kind against women is completely contrary to the values that are fundamental to a civilised and free Australian society. It is to be eschewed in all its ugly forms, be they physical, mental or emotional.

2. Mahesh Sadashiv Kulkarni applied for Australian citizenship on 3 June 2018. On 25 July 2019 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs rejected Mr Kulkarni’s application for Australian citizenship solely on the basis that the delegate was not satisfied that Mr Kulkarni was ‘of good character at the time of the Minister's decision on the application’. The delegate decided ‘to refuse to approve [Mr Kulkarni’s] application to become an Australian citizen by conferral because’ Mr Kulkarni did not meet the criteria in ‘Paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Act) concerning good character.’[1] The ‘good character’ requirement is the last, but perhaps the most important, of the eight requirements that Mr Kulkarni was required to satisfy under ss. 21(2) of the Act for his application to be approved. Mr Kulkarni has asked the Tribunal to review the delegate’s decision.

   [1] Exhibit 1, Section 37 T-Documents at page 12-18.

3. I have decided to set aside the delegate’s decision and have instead decided to approve Mr Kulkarni’s application for citizenship. These are my reasons for the decision.

   FACTS

4. On 21 May 2010 Mr Kulkarni married his wife, Mugdha Mahesh Kulkarni. Together they had a daughter in October 2011. On 8 March 2014 Mr Kulkarni arrived in Australia on a SN-190 Visa. Mr Kulkarni is a skilled developer programmer.

5. On 17 June 2016 Mr and Mrs Kulkarni were in their bedroom. Mrs Kulkarni took Mr Kulkarni’s phone from him. Mrs Kulkarni was standing in front of the door to the bedroom. Mr Kulkarni tried to take the phone back from her as he left the room. There appears to have been a momentary ‘tug of war’ of sorts with the phone being the prize for the winner. In pushing past his wife whilst trying to take the phone Mr Kulkarni’s arm contacted her left arm and caused her to stumble backwards and fall over.

6. Mrs Kulkarni did not suffer any injuries and she says she felt no pain. Mrs Kulkarni regarded the matter as ‘just a couple fight’ and said she was not frightened.

7. Mr Kulkarni immediately regretted his actions. His sense of regret was reflected by the fact that he immediately contacted the police and to use the jargon to which police are accustomed he ‘made full admissions’. Mr Kulkarni said that he ‘called the police because I touched her without permission and that he thought this was not the correct way to behave’.

8. On 21 June 2016 the Local Court at Liverpool, following Mr Kulkarni entering a plea of guilty, found Mr Kulkarni guilty of common assault but without proceeding to conviction required him to enter into a bond to be of good behaviour for 12 months under s.10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. That bond expired on 21 June 2017. Mr Kulkarni was not called upon to appear before any Court during the period when the bond was in force. That is, in accordance with the order made by the Local Court, Mr Kulkarni fulfilled his obligation to be of good behaviour.

9. There is no suggestion that Mr Kulkarni sought to conceal his wrongdoing or any aspect of it when he made his application for citizenship.

10. Mr Kulkarni does not have a criminal record or any other kind of record (such as in his employment) that would adversely reflect upon his character. He said in his evidence before the Tribunal that he does not have any history of violence or of any other wrongdoing such as traffic offences. There is nothing before the Tribunal that would suggest that Mr Kulkarni is anything but an honest person. There is no suggestion that in his thirty-nine years before and after the few minutes that accompanied his wrongdoing on 17 June 2016 that Mr Kulkarni has done anything else that would call into question his moral compass or his character more generally.

11. Mrs Kulkarni said in her evidence that Mr Kulkarni had never ever done anything like ‘this’ before or since. Although Mr Kulkarni relied on some character evidence, I do not refer to it here as it has not figured greatly in my consideration of the matter.

    ISSUE

12. The issue is whether the Tribunal can be satisfied that Mr Kulkarni is ‘of good character when determining his application’.[2] If he is of good character his application for Australian citizenship should be approved.

    [2] Subsection 21(2)(h) of the Act.

    GOOD CHARACTER

13. The question as to what constitutes good character is often a difficult one especially where a person has committed something that might blemish what is otherwise their good character in circumstances that might simply exhibit a mistake which is the product of ordinary human frailty.

14. The Citizenship Policy provides some helpful guidance about what ‘good character means’ even though it does not descend to define the term. It says that to be of good character a person generally would be seen to exhibit ‘enduring moral qualities’ indicative of the likelihood that the person would uphold and abide by the laws of Australia. I accept that the Australian Government’s position is one of zero tolerance so far as violence against women is concerned.[3] That policy, perhaps, is best seen as reflecting the moral norms that go to what Australians consider it to mean to be of good character.

    [3] Exhibit 6, Funding to Support Women and Children Escaping Domestic Violence, Media Release, 11 February 2019.

15. It goes without saying that acts of violence against women whether in the context of a domestic relationship or not are serious matter and call for careful consideration. The question is not so much one of degree because violence of any kind in those circumstances is, as I have emphasised, serious. Rather the question is one of whether it can be said that one instance of such violence can be said to be fundamental to character. It is not useful or instructive to analyse and compare one case to another as each case will require consideration of its own peculiar circumstances with a view to unravelling the complexities of character. Nor is at all possible to generalise given the myriad of circumstances that might arise. But one thing is clear: people make mistakes and people do things at time that are very much out of character.

16. The circumstances here strongly point against what happened on 17 June 2016 as being reflective of Mr Kulkarni not having enduring moral qualities. There are five matters that are relevant to the actual circumstances none of which should be taken, to trivialise the offence, which was serious, that weigh against the matters being treated as being adverse to Mr Kulkarni’s character.

17. First, the objectively viewed nature and seriousness of the offending was not at the highest end of the scale of wrongdoing; it did not involve any injury, temporary or permanent. Second, although objectively capable of instilling fear in someone else, Mrs Kulkarni said she was not frightened. Third, the event was one single event and that occurred over a matter of seconds. It was not something that had happened before and was not repeated afterwards. Fourth, it was Mr Kulkarni himself who brought the matter to the attention of the police. Rather than count against him this speaks volumes for his character in owning up to his wrongdoing almost immediately by ‘turning himself in’. Fifth, within days Mr Kulkarni made ‘full admissions’ about what he had done. He was obviously remorseful and contrite for what he did: his recognition and acceptance of responsibility for what he has done came almost as quickly as the events that constituted his wrongdoing. In the view I take his subsequent conduct as I have said speaks volumes for his character. I reject completely the suggestion that Mr Kulkarni was and is not remorseful for his conduct. Sixth, the fact that Mr Kulkarni sought counselling of some kind says something about his acceptance of responsibility and his determination for nothing of the same kind to happen again.

18. There are other matters that are also relevant to the enduring nature of Mr Kulkarni’s moral qualities. In particular, the fact that he has never come to the attention of law enforcement authorities before or after the incident itself suggests that what occurred on the evening of 17 June 2016 was an uncharacteristic mistake. Secondly, the character testimony is another matter that needs to be considered: none of it counts against Mr Kulkarni although on its own that would not be a significant matter in my reckoning. Thirdly there is the fact that Mr Kulkarni has clearly himself moved on from what happened which is now almost four years ago. I also have a small advantage over the delegate in that nine months that have elapsed since the original decision during which nothing has happened to cast any shadow over Mr Kulkarni’s character. In some cases, it might be necessary to see significant periods of time pass before it can be said that someone has shown their true character, that too will depend upon all the circumstances. In this case nearly four years have elapsed, and nothing has happened in that time to cause anyone to doubt Mr Kulkarni’s good character.

19. I reject the suggestion that Mr Kulkarni’s claim that he is not an abusive spouse or that he thought of getting external help in some way counts against him admitting guilt for his offence. His references to these things are fairly to be seen in the context of him asserting that he is generally not an abusive spouse, that is, that he does not have the character of what generally might be regarded as an ‘abusive spouse’ or as someone who regularly engages in conduct involving abuse of their spouse. His own testimony and that of his wife demonstrated that he is not that kind of person. His reference to seeking external help is a mere acknowledgment that he was looking for a means of resolving, and making sure, that the same things did not happen again. I do not accept that in his evidence he attempted to downplay the incident. He was clearly ashamed of what he did and remorseful for his actions in the evidence he gave before the Tribunal.

20. I am satisfied that Mr Kulkarni is of good character at the time that the Tribunal is deciding his application.

    CONCLUSION

21. There was an issue at the conclusion of the hearing as to the formal order I should make in the event that I determined that Mr Kulkarni was of good character; namely whether I should approve his application for citizenship as he has satisfied all the requirements of ss. 21(2) of the Act or whether I should remit the matter to the delegate with a direction that Mr Kulkarni satisfies the requirement in ss. 21(2)(h) of the Act.

22. The only relevant time for determining the question of Mr Kulkarni’s good character is at the time of determining his application for citizenship; ss.21(2)(h) says so much. If I were to remit the matter to the delegate, the delegate would need to determine the question of Mr Kulkarni’s character again because my determination will, by then, have been made at a time that was different to the  time at which the delegate will be determining the application. The delegate would need to consider that question again at the time, she or he determines the application. The delegate could, perhaps quite improbably, but nonetheless possibly, come to a different conclusion at that time. That analysis suggests I should determine the whole application rather than remitting the matter with a direction that will be inutile.

23. In any event, I see no need to adopt the second course involving remitting the matter with a direction given that on the material before me Mr Kulkarni satisfies all the requirement in ss. 21(2) of the Act and given that the decision, I am reviewing is the decision to reject Mr Kulkarni’s citizenship application. I am required to make the correct or preferable decision about that application. I have all the powers and discretions that were available to the decision maker.[4] I stand in the decision maker’s shoes in making the decision.

    [4] Administrative Appeals Tribunal Act 1975 (Cth) ss 43(1).

24. As Mr Kulkarni satisfies ss. 21(2)(h) of the Act, his application for Australian citizenship should be approved. I set aside the decision under review and instead decide that Mr Kulkarni is of good character and his application for citizenship is approved.

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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

Associate

Dated: 9 April 2020

Date(s) of hearing:	2 April 2020
Advocate for the Applicant:	Mr A Garg- Auslead International Pty Ltd
Solicitors for the Respondent:	Mr N Cuthbert- Clayton Utz