Kumar and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 337

Kumar and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 337 (26 May 2016)

Division	GENERAL DIVISION
File Number(s)	2015/1321
Re	Anil Kumar
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Professor R McCallum AO, Member
Date	26 May 2016
Place	Sydney

The decision under review is affirmed.

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

Professor R McCallum AO, Member

CATCHWORDS

CITIZENSHIP - eligibility - whether applicant of good character - assault occasioning actual bodily harm - fishing offence - domestic violence incidents - applicant found not to have satisfied good character requirements - decision affirmed

LEGISLATION

Australian Citizenship Act 2007 s 21(2)(h)

Crimes (Sentencing Procedure) Act 1999 (NSW) s 9

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

Professor R McCallum AO, Member

26 May 2016

INTRODUCTION

1. The Applicant, Mr Anil Kumar was born in Fiji. In 1999, when he was a teenager, Mr Kumar and his Mother immigrated to Australia.

2. On 2 January 2015, Mr Kumar applied for Australian citizenship by conferral, however, on 27 February 2015, a delegate of the Minister for Immigration and Border Protection held that the delegate was not satisfied that Mr Kumar was of good character within the meaning of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”).

3. On 20 March 2015, Mr Kumar appealed to the Administrative Appeals Tribunal (“AAT”). By virtue of s 52(1)(b) of the Citizenship Act, the AAT has jurisdiction to hear this appeal.

   THE LEGISLATION

4. The relevant provision on which the Minister's delegate relied is subsection 21(2) paragraph (h) of the Citizenship Act. It provides as follows.

   (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   ...

   (h) is of good character at the time of the Minister's decision on the application.

   The meaning of "good character"

5. The Citizenship Act does not define "good character". Guidance is found in Chapter 10 of the Australian Citizenship Instructions (the ACIs) which offer guidance on policy in relation to the interpretation of, and exercise of powers under the Citizenship Act and the Australian Citizenship Regulations 2007 (Cth). They are government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

6. The ACIs state that "'[g]ood character' ... 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" (section 10.1.2).

7. As to the meaning of "good character", the ACIs cite Lee J in the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, where his Honour said at 431-432:

   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.

8. The ACIs state that the phrase "enduring moral qualities" encompasses characteristics which have been demonstrated over a very long period of time, including: distinguishing right from wrong; behaving in an ethical manner; and conforming to the rules and values of Australian society. 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 processes" (section 10.3.1).

9. The ACIs provide a non-exhaustive list of the qualities expected of persons of good character: they will respect and abide by the law in Australia and other countries; be honest and financially responsible; be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations (for example, they will not engage in material deception during visa and citizenship applications) (section 10.3.4).

10. The ACIs set out at length relevant factors when considering the implications of a person's criminal record for their character. They include the following matters.

11. If the Applicant has committed an offence, whether it was serious or minor. Serious offences include, but are not limited to: crimes of violence, including domestic violence; reckless driving occasioning injury or death; and other offences incurring prison sentences of 12 months or more. 

12. Minor offences include: traffic offences which have been included in a criminal record; and offences which do not lead to a conviction or sentence (10.5.2.).

13. Whether the applicant has disclosed in their citizenship application that they had committed any offence; whether the offence was pre-meditated, whether it was a "one-off" offence or whether there was a "pattern of criminal behaviour", and the length of sentence. It is noted that decisions of courts, particularly sentencing remarks, may provide insight into the character of the applicant (section 10.5.2).

14. Mitigating factors may mean that, despite serious offending, a person may be found to be of good character.

15. Factors to be taken into account include: the time that has elapsed since offending, whether the person has accepted responsibility and shown remorse for their conduct, their age at the time of offending, and any extenuating circumstances relating to the offences. Evidence of length of employment, stable family life and community involvement may be indicators of good character and references from independent people such as employers may be helpful (section 10.5.2).

    THE ISSUE BEFORE THIS TRIBUNAL

16. The sole issue which I am required to decide, is whether Mr Kumar is of good character. As I stand in the shoes of the Minister, pursuant to s 21(2)(h) of the Citizenship Act I am required to decide whether Mr Kumar is of good character at the time when this decision is made.

    THE OFFENCES OF MR KUMAR

17. In 2003, when he was very young, Mr Kumar commenced a de facto relationship with a woman whom I shall call Ms X. Mr Kumar and Ms X lived together for approximately 10 years from 2003 to 2013.

18. A CRIMTRAC Check Results Report, dated 19 January 2015, which is before this Tribunal, discloses the following conviction. On 21 November 2006, Mr Kumar pleaded guilty in the Liverpool Local Court to "assault occasioning actual bodily harm" to Ms X. Mr Kumar was fined $400, and ordered to enter a two year good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

19. Documents produced by the Liverpool Local Court under summons show the following comments concerning the 2006 incident which gave rise to the conviction. It does appear that on 18 November 2006, Mr Kumar and Ms X had an argument about the way Ms X showed herself when Mr Kumar's friends came to their home. It further appears that Ms Kumar hit Ms X in the face with his open hand. Mr Kumar then punched Ms X in her upper arms on a number of occasions. On their arrival, the police noticed bruises on the upper arms of Ms X.

20. On 15 April 2010, Mr Kumar committed the offence of possessing undersize fish while not holding a fishing licence. Mr Kumar was given a verbal warning. On 2 February 2013, Mr Kumar was issued with a traffic infringement notice for the offences of using an unregistered and uninsured vehicle.

    TWO DOMESTIC INCIDENTS

21. Documents produced by the New South Wales Police Services under summons consist of several incident reports.  Two domestic incidents occurred in 2014 after Mr Kumar and Ms X had broken up.

22. First, on 2 January 2014, an incident took place involving Mr Kumar and Ms X. It appears that they were both intoxicated and had an argument, during which Mr Kumar called Ms X a slut and Ms X "went hysterical" until she was restrained by Mr Kumar. When the Police arrived, the police found Mr Kumar holding Ms X down, who was "still hysterical and hyperventilating". The police believed that Mr Kumar used reasonable force to restrain Ms X, so as not to be assaulted. No offence was detected.

23. Second, On 10 May 2014, Mr Kumar and Ms X were involved in a verbal argument, during which Ms X asked Mr Kumar to leave, But Mr Kumar refused to depart. Subsequently, Mr Kumar alleged that Ms X and her new boyfriend forcibly removed him, but confirmed that he was not assaulted. The Police were called but no offence was detected. 

    THE EVIDENCE OF MR KUMAR

24. Mr Kumar attended the hearing accompanied by his Mother. Mr Kumar gave sworn evidence and I found him to be a cooperative witness.

25. Mr Kumar gave evidence about his conviction on 21 November 2006 of assault causing grievous bodily harm. He explained that he was very young in 2006. He and Ms X moved in together when they were 17 years of age. Mr Kumar said that at the time of the offence he was stressed about their lack of finances. He agreed that he had hit Ms X. He said that he had pleaded guilty to the offence. Mr Kumar said that he was very sorry and that he had remorse for committing this offence.

26. In cross-examination, it was put to Mr Kumar that his assault of Ms X was not related to his financial stress. Rather, the assault occurred because Mr Kumar was annoyed about how Ms X showed herself when friends came over. Mr Kumar said that quarrels began because of financial stress and then snowballed into other matters.

27. Mr Kumar agreed that after the assault Ms X had bruises on her arm.

28. In cross-examination, Mr Kumar was asked about the first domestic incident which occurred on 2 January 2014. Mr Kumar said that he and Ms X had been drinking and that they quarrelled. He agreed that he did call Ms X a slut. In cross-examination, Mr Kumar was asked about the second domestic incident on 10 May 2014. He said that he and Ms X quarrelled about who owned the car. Mr Kumar said that he owned the vehicle.

29. Mr Kumar said that it was not true that when Ms X asked him to leave that he refused to do so. He said that he did leave, but that as he was leaving Ms X snatched the car keys from his hand and said that he could not take the car. Mr Kumar said that he had the documents to show that he owned the car and therefore he called the police.

30. Mr Kumar was asked about the 15 April 2010 verbal warning of catching undersized fish without a licence. Mr Kumar said that at that time he did not know about the requirement for a fishing licence. He said that he has a licence and that he is now a volunteer with the New South Wales Department of Primary Industries.

31. Mr Kumar was asked about the 2 February 2013 offence of driving an unregistered and uninsured car. Mr Kumar explained that he was homeless at the time and that his car was repossessed. 

32. Mr Kumar gave evidence about his written character references. None of the independent referees mentioned the 2006 conviction. Mr Kumar explained that he was ashamed of the conviction, and that in the Indian community it was hard to tell people about this conviction. 

33. Mr Kumar said that he left high school in 2003. He had been employed in a business which his Mother owned. He said he had some computer skills and he had done some part-time work for Toshiba International. He had been employed as a storeman at Dan Murphy's for six to eight months until he injured his back in 2010. Since then, he said it has been difficult for him to find work as he has to disclose to potential employers his back injury.

34. Mr Kumar said that he has a Certificate 3 in Pathology and hoped to find work in that field.

    CONSIDERATION

35. I am required to decide pursuant to s 21(2)(h) of the Citizenship Act, whether I am satisfied that Mr Kumar is a person of good character.

    Matters tending to show that Mr Kumar is not of good character

36. Mr Kumar pleaded guilty in 2006 to the offence of assault occasioning actual bodily harm. This domestic violence offence is clearly a very serious offence. In evidence before me, Mr Kumar put its commission largely down to the financial stress which he was under at that time. Mr Kumar did say he had remorse for his conduct, however, I find that he did not take full responsibility for his violent acts. I give this offence and the evidence of Mr Kumar at this hearing a great deal of weight.

37. I regard that the 15 April 2010 fishing incident for which Mr Kumar was given a verbal warning to be a minor offence. I give this little weight.

38. I regard the 2 February motor vehicle offence as a minor offence. I give this offence little weight.

39. I am troubled by the first domestic incident which occurred on 2 January 2014. In evidence before me, Mr Kumar admitted that there was intoxication and he did call Ms X a slut. 

40. I find that this incident does show a lack of control by Mr Kumar and I give this incident some weight.

    Matters tending to show Mr Kumar is of good character

41. Mr Kumar's Mother wrote an undated declaration which was received by this Tribunal on 17 November 2015. She is of course aware of Mr Kumar's 2006 conviction and she attests that her son is now a changed person. I do not doubt her belief, but she is not an independent referee, and accordingly I give this declaration little weight.

42. Three statutory declarations by Ms Donna Porcella, Mr Wolfgang Brodesser and Mr Leonard Brown which are all dated 10 February 2015 are before this Tribunal. The declarants attest to Mr Kumar's good character. However, the declarants do not mention Mr Kumar's 2006 offence and there is no evidence that any of the declarants were aware of its commission by Mr Kumar. These testimonials on character are limited because they do not attest to Mr Kumar's changed character after the commission of the offence. I give these declarations little weight. 

43. Mr Kumar did not call witnesses to give evidence who could attest to his good character.

44. I accept that his volunteering for the New South Wales Department of Primary Industries tends to show that Mr Kumar is of good character. I do not give this volunteering much weight.

45. It is true that 10 years have elapsed since the commission of the 2006 offence and that more than seven years have passed since Mr Kumar's two year good behaviour bond has run its course. I give this some weight.

    Conclusion as to character

46. I find that the matters tending to show that Mr Kumar is of good character are outweighed by those matters which tend to show that at the present time Mr Kumar is not a person of good character. The 2006 domestic violence offence is a serious offence. As I have written above, Mr Kumar did not take full responsibility for the commission of this offence.

47. On the other side of the ledger, there is little evidence that Mr Kumar is a changed person since 2006. There was no written or oral evidence from independent referees who could attest that since the commission of the 2006 offence, Mr Kumar is now a changed man and is a person of good character.

48. From all of the evidence before me, I am not satisfied that at this point in time, Mr Kumar is a person of good character within the meaning of s 21(2)(h) of the Citizenship Act.

    DECISION

49. The decision under review is affirmed.

I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

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

Associate

Dated 26 May 2016

Date(s) of hearing	3 May 2016
Advocate for the Applicant	Seven Seas Immigration
Solicitors for the Respondent	Sparke Helmore