Madziva and Minister for Immigration and Border Protection

[2013] AATA 713

[2013] AATA 713  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2452
Re	Thulani Ricky Madziva
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION  

Tribunal	Deputy President PE Hack SC
Date	18 September 2013
Place	Perth

The decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with a direction that the applicant is of good character.

..(Sgd) P E Hack.......

Deputy President PE Hack SC

CATCHWORDS

CITIZENSHIP – requirement to be of good character – conviction for minor assault – decision under review set aside and remitted

LEGISLATION

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

CASES

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

Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

REASONS FOR DECISION

Deputy President PE Hack SC

26 September 2013

1. The applicant, Mr Thulani Ricky Madziva, was born in Zimbabwe in 1980. He came to Australia to live in November 2008 and became a permanent resident the following year. In November 2012 Mr Madziva applied to the respondent, the Minister for Immigration and Citizenship, for a grant of Australian citizenship. On 21 May 2013 a delegate of the Minister refused that application on the basis that the delegate was not satisfied that Mr Madziva was of good character. That conclusion was reached because, in March 2010, Mr Madziva had been convicted in the Perth Magistrates Court of an offence of aggravated assault occasioning bodily harm.

2. Mr Madziva seeks a review of that decision.

3. I consider that the decision should be set aside. My reasons follow.

4. Acquisition of Australian citizenship is governed by the Australian Citizenship Act 2007 (Cth). Section 21 of that Act allows an application to be made to the Minister to become an Australian citizen and provides for eligibility to become an Australian citizen if the Minister is satisfied that the person meets the criteria set out in paragraphs (a) to (h) of s 21(2) of the Act. It is not in issue that Mr Madziva satisfied each of those criteria except that in paragraph (h). It required the Minister to be satisfied that the applicant for citizenship:

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

5. The Act does not define what is meant by the expression “good character”. In Irving v Minister for Immigration, Local Government and Ethnic Affairs[1], a case to which the Minister’s statement of facts and contentions drew attention, the Full Court was required to consider a similar expression in the Migration Regulations 1989 (Cth), although those Regulations nominated circumstances where a person was taken not to be of good character. Justice Davies, with whom RD Nicholson J agreed, said of the expression “good character”[2]

   It should also be observed that the term “good character” is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, “good character” refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

   To similar effect Lee J said[3]:

   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 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 omitted]

   [1](1996) 68 FCR 422.

   [2]At 425.

   [3]           At 431-432.

6. The Minister’s submissions made reference, as well, to Re Fenn and Minister for Immigration and Multicultural Affairs[4] where Deputy President Breen said:

   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 …  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 Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

   [4][2000] AATA 931.

7. The Minister relied on two aspects of the conviction to demonstrate that I could not be satisfied that Mr Madziva was of good character – the fact of the conviction and Mr Madziva’s failure to disclose it when asked about criminal convictions on his written application for citizenship.

8. It is necessary to consider the circumstances surrounding the conviction. It arose from an altercation between Mr Madziva and the complainant, a person with whom he had an affair, on the evening of 13 September 2009. Prior to the incident the two had agreed that the complainant would take a “morning after” tablet. They went to a pharmacy. The complainant would not get out of the car so Mr Madziva went into the pharmacy and returned with a document for the complainant to sign. Unexpectedly, so far as Mr Madziva was concerned, she refused to do so. The sequence of events is described in these terms in the Police Service, Statement of Material Facts, an account I assume to have been provided by the complainant:

   [Mr Madziva] sat in the driver’s side of the vehicle, whilst the complainant was already seated in the passenger side. A discussion took place, resulting in the complainant refusing to sign the form.

   A physical altercation then started between the accused and the complainant where the accused grabbed the complainant’s arm and twisted it towards her back.

   The accused had the pen in his hand and used it to strike the complainant to the right side of her face between her eyebrow and her temple. This caused a small cut and bleeding.

   The accused pulled the complainant by the hair towards him. The complainant bit the accused on his right hand to prevent him from pulling her any further.

   The complainant got out of the car and phoned a friend to pick her up.

   The complainant received a cut to her right side of her face, causing pain and bleeding.

   The accused attended the Mirrabooka Police Station and participated in an electronic Record of Interview where he admitted to being at the incident.

   Mr Madziva was recorded as having said:

   She kicked me first and lashed out at me, I held her hands to defend myself and when I was doing this, the pen struck her face.

9. Mr Madziva was convicted, after a trial, of an offence against s 317(1) of the Criminal Code (WA) of assault causing bodily harm with a circumstance of aggravation[5]. The Magistrate was obviously able to exclude Mr Madziva’s defences of accident and self-defence.   The Magistrate imposed a fine of $1200. Additionally, a spent conviction order was made, i.e. an order that had the effect that Mr Madziva’s conviction was a “spent conviction” for the purposes of the Spent Convictions Act 1988 (WA). By virtue of s 45(1) of the Sentencing Act 1995 (WA) the Magistrate was only permitted to make such an order if satisfied that Mr Madziva was unlikely to commit such an offence again and, having regard to either the triviality of the offence or Mr Madziva’s previous good character, it was considered that Mr Madziva should be relieved immediately of the adverse effect that the conviction might have on him.

   [5]I assume that the circumstance of aggravation was that he was in a family and domestic relationship with the complainant: see s 221(1), Criminal Code (WA).

10. When Mr Madziva made his application for citizenship he was asked about previous convictions. The question posed was:

    Have you been convicted of, or found guilty of, ANY offences overseas or in Australia? (include all traffic offences which went to court including offences declared in your permanent residence application and any ‘spent’ convictions)? 

    Mr Madziva answered “no”.

11. The Minister submits that Mr Madziva made a conscious choice to not disclose his offence. Mr Madziva says that he did not make a conscious decision not to do so, he was relying on advice given to him by his solicitor at the time of the criminal proceedings that the effect of the spent conviction order was that he was not obliged to disclose the fact of the offence. The non-disclosure was the result of confusion not deliberate choice. I accept that to be so. Whilst Mr Madziva has good English it is not his first language. I accept that the advice given to him by his solicitor was such as to cause him to be confused about the need to disclose. His letter to the Department at page 116 of the s 37 documents demonstrates further confusion on his part. I am satisfied that Mr Madziva did not attempt to keep knowledge of his offending from the Department. His failure to disclose does not adversely affect an assessment of his character.

12. It is then necessary to make a judgement about the severity of the assault of which Mr Madziva was found guilty.  There are competing versions – that of the complainant which has already been recounted and that of Mr Madziva which was that the cut occasioned to the complainant was not the result of a willed act but was rather the result of an accident.   It is obvious that the Magistrate determined that the assault was a willed act but in circumstances where I have not heard from the complainant it is difficult for me to conclude that the assault was of the force recorded in the Police Service Statement of Material Facts.

13. On the material before me it seems to me to be open to conclude that the assault for which Mr Madziva was convicted was constituted by his physical dealing the complainant after she refused to sign the form.  On his case he assaulted the complainant albeit not in the circumstances of which she complains.  I can readily reject the notion that Mr Madziva struck at the complainant using the pen as a weapon.   I think it is more likely that was simply the consequence of him grappling with the complainant with the pen in his hand.  The fact that the Magistrate imposed a fine of $1200 suggests to me that the matter was not viewed as being particularly severe.  I am satisfied that Mr Madziva did assault the complainant but not as violently as her account of events would suggest. 

14. The Minister’s submissions emphasise that the assault was serious and compounded by two matters – that Mr Madziva was attempting to coerce the complainant to change her mind again having already changed it once and that Mr Madziva was attempting to interfere with her right to make choices about pregnancy.  I am unable to conclude that there was any violent attempt on the part of Mr Madziva to coerce the complainant.  I accept his evidence that he was responding to the circumstances of her refusal rather than attempting to persuade her to change her mind.  That seems to me to be consistent with the reaction of someone in the circumstance in which he found himself when the complainant changed her mind.  

15. Equally I do not accept that the assault is made any worse because of some notion of interfering with the complainant’s fundamental rights in relation to her fertility.  The assault takes its character from its facts rather than reference to fundamental rights.  The fundamental right of the complainant was not to be assaulted.  It is that right that Mr Madziva interfered with. 

16. The Minister submits as well that Mr Madziva, having lost control on that occasion, has not demonstrated objectively that he has undertaken any anger management courses.  I am not sure that that is right nor that it is necessary.  It is I think not correct because the evidence of Mr Madziva and his pastor Mr Gwakuba was that Mr Madziva had undertaken counselling in connection with his religious conversion but in any event I do not think that it is necessary for Mr Madziva to undertake any course in anger management to demonstrate that he is of good character.  A Magistrate, having heard all of the evidence, did not reach the conclusion that any such course was necessary.   That seems to me to be of some significance.  Equally of significance is that the same Magistrate concluded by reference to the statutory criteria that Mr Madziva was unlikely to commit such an offence again. 

17. It is now just on four years since the offence was committed and neither before nor since then has Mr Madziva been in trouble with the criminal law.  Mr Gwakuba spoke most impressively of Mr Madziva’s involvement in the church community and his involvement with family.  He is in a stable relationship albeit there was an aberrant period which led to the events of September 2009. He is in stable employment having undertaken courses to improve his capacity to be employed.  There are other testimonials to his character in the material on which I place lesser weight but, as I say, I was particularly impressed by Mr Gwakuba’s endorsement of Mr Madziva’s character.  Despite Mr Madziva having committed the offence in September 2009, I am satisfied that he is of good character.

18. In those circumstances I propose to set aside the decision under review and to remit the matter to the Minister for reconsideration in accordance with a direction that Mr Madziva is of good character.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

..(Sgd) T Freeman................

Associate

Dated      26 September 2013

Date of hearing	18 September 2013
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor