Mendoza v Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 686
•27 March 2018
Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686 (27 March 2018)
Division:General Division
File Number(s): 2017/3520
Re: Mark Mendoza
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:27 March 2018
Place: Sydney
The decision under review is affirmed.
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Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – criminal offence – domestic violence – whether applicant of good character – meaning of good character – misleading Tribunal – lack of acceptance of personal responsibility for offence – applicant found not to be of good character at time of decision – decision under review affirmed
LEGISLATION
Citizenship Act 2007 (Cth) s 21
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (6 November 1985)
SECONDARY MATERIALS
Citizenship Policy, Department of Home Affairs (1 June 2016)
REASONS FOR DECISION
The question before the Tribunal is simple: “Is Mr Mark Mendoza a person of good character for the purposes of awarding citizenship by conferral?”
The answer is: no. The Tribunal finds that the applicant was not a person of good character at the time of the decision.
BACKGROUND
Material Facts
Mr Mark Anthony Dela Cruz Mendoza is a citizen of the Republic of the Philippines. He first arrived in Australia in 2010 and now holds a Permanent resident visa (Subclass 801). On 30 June 2016 he submitted an application for citizenship by conferral. This was rejected by the Minister’s delegate on 11 May 2017.
The ground for refusal was that Mr Mendoza was found not to be a person of good character as required under the Citizenship Act 2007 (Cth) (the Act).[1]
[1] Section 21(2)(h).
The basis for this assessment by the Delegate was that Mr Mendoza had been convicted of common assault in 2013 and had failed to disclose this on his citizenship application.[2]
[2] As per the Respondent’s Statement of Issues, Facts and Contentions.
Mr Mendoza appealed that decision to this Tribunal on 9 June 2017. The matter was heard on 16 March where Mr Mendoza represented himself and the respondent was represented by Ms Jennifer Strugnell (Minter Ellison).
The Offence
On 26 January 2013 Mr Mark Mendoza and his wife Kathrina Mendoza were at their home in Brookvale, NSW. Also present was Mr Mendoza’s son Luis, then aged 7 months.
Mr Mendoza was drinking and his wife asked him not to do so in front of the baby. He refused this request. As a result Mrs Mendoza took the bottle of beer and poured it down the sink, together with another bottle from the refrigerator.
This angered Mr Mendoza who grabbed his wife around the back of her neck; squeezed it really hard and pushed her face downwards. This caused her both pain and made her fearful. She alleges this assault continued for about two minutes after which he released her and she called the Police.[3]
[3] The Police Fact Sheet record is at Supplementary Document 2, p 3.
The Police attended at their home. Mr Mendoza was arrested and charged. A provisional Apprehended Violence Order was made by an Authorised Officer at 11.47 pm that evening to last for a period of 28 days until 23 February 2013.[4] It is unclear from the evidence, and the Respondent was unable to assist on this point as to what may have become of this AVO. The Final Order document provided in the Supplementary Documents (S23, at pages 50 and 51) is incomplete and it is not possible to determine what final orders, if any, were made or when the AVO might have been cancelled. However since there is no evidence that any AVO was ever breached, nothing turns on this.
[4] Supplementary Document S3, p 3.
The common assault case was heard in the Downing Centre Local Court on 17 April when Mr Mendoza was found guilty of the assault, but not convicted and was placed on a good behaviour bond for a period of 9 months[5]. Mr Mendoza told the Tribunal this matter was settled “by the lawyers” and he did not address the court at any stage. Thus there is no evidence that he sought, at any time, to refute formally the Police version of the events which took place on the night in question.
[5] Supplementary Documents S8, p 21.
The Application for Citizenship
When Mr Mendoza completed his citizenship application form on 12 May 2016 he had to complete (by ticking boxes) answers to a number of questions. One of these (Question 35(a)) was in the following terms:
“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 Mendoza ticked the “No” box.
As a result of this provision of inaccurate information, the Delegate wrote to Mr Mendoza on 7 September 2016 warning him that in relation to his citizenship application the Department was in possession of “adverse information” which had the potential to prejudice the outcome of their determination and inviting Mr Mendoza to comment on that. It was made clear that the “adverse information” related to his conviction in 2013.[6]
[6] Tribunal Documents T6, p 36.
In reply (by Statutory Declaration dated 18 September 2016) Mr Mendoza admitted the error and claimed that it was “an honest mistake”. He went on “I didn’t know that one will stay on my record because there’s no conviction and I’m not a bad person.” He made statements to the effect that this was a first offence; he apologised; he expressed regret and stated that he had learned his lesson.[7]
[7] Tribunal Documents T7, p 39.
At this point I must reflect upon the Statement of Issues, Facts and Contentions provided to the Tribunal by the Respondent. Paragraph 5 read:
“A Police history check obtained by the Department revealed that the applicant had been convicted of common assault in 2013; T documents, at 35. The conviction was recorded in the Downing Centre Local Court on 17 April 2013. The result of the conviction was a good behaviour bond.”
I could find no evidence in the material before me to corroborate the Respondent’s submission.
The document at T5 is a Crimtrac Report. Under the heading “Disclosable History” I find the following:
“Source: NSW
Court: Downing Centre Local Court
Date: 17/04/2013
Offence: Common assault (DV)-T2
Result: H 50809579. BOND S10: 9 MONTHS”
I do not see anywhere in that document a reference to a conviction, only the issue of a good behaviour bond and a finding made under s 10(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Similarly a page 21 of the Supplementary Documents there is a copy of a Court Order. It is dated 17 April 2013 and repeats the Charge Number H 50809579 (as above). It is signed by Magistrate J. Stevenson. In the space where one finds boxes marked “Plea Guilty”; “Convicted”, “Ex Parte” and “s 10A” none of the boxes are marked in any way. Again there is no evidence of any conviction. There is a mark against the box “Conditional Discharge Bond s 10(1)(b) or (c)” and there is a figure “9” written in on the line Term “_(9)___ Months/Years” with the latter (“Years”) crossed out.
At p 41 of the Supplementary Documents I find a Bond Notice dated 17 April 2013 issued at the Downing Centre. It states quite clearly:
“The offender is found guilty but without proceeding to conviction is directed to enter into a good behaviour bond for 9 months pursuant to Section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and accept the following conditions: The offender must be of good behaviour and appear before the court during the bond term if required. And accept the following conditions:”
No conditions are listed.
The bond has been accepted and signed by the Applicant.
I accept that the Applicant was “found guilty” of the offence but I could not see any basis for having to accept that he was ever “convicted”.
When this matter was raised with the Respondent they agreed with my assessment and formally withdrew paragraph 5 from their Statement of Issues, Facts and Contentions.
Of course the answer to Question 35(a) on the Citizenship Form would still have required a “yes” response under these circumstances (there is a “guilty” finding) but this degree of confusion on the part of the well-resourced and expert Respondent may shed some mitigating light on Mr Mendoza’s own response.
I would, had this been the total sum of things, have been inclined to grant Mr Mendoza’s appeal to this Tribunal, however it is, damagingly for him, not the end of the story.
The application to this Tribunal
In his statement attached to the application for review which brings him before me today Mr Mendoza gives an account of the incident leading to his arrest which is in marked contrast with the evidence which is before me from the Police and the courts.
In his statement to the Tribunal,[8] Mr Mendoza says in relation to the night in question: “I want to go out and she doesn’t want me to go out”.
[8] Tribunal Document T2, 8.
The Police/Court record[9] shows that Mr Mendoza insisted on staying at home to drink while his wife said “she would much prefer him to go out, than to drink in front of the baby.”
[9] NSW Police Fact Sheet tendered in association with proceedings in the Downing Centre Local Court on 17 April 2013. Supplementary Document S2 p. 2
In relation to the act of violence: “I just hold her hands to make her calm”.
The Police/Court record shows that he took his wife violently by the neck, squeezed it and pushed her face down. He also shouted at her violently “telling her that since she had stopped him doing things he likes to do, he would stop her doing things she likes.”
Of his wife: “[she] is sick that time when it happens she’s having a depression that time.”
Finally: “I’m still new hear (sic) in Australia that time and I’m not familiar with the law here.”
This is open to an interpretation that acts of domestic violence are condoned in the Philippines, or were condoned in Mr Mendoza’s mind and that Mr Mendoza thought nothing of what he was doing at the time, only realising later than domestic violence is unacceptable behaviour, at least in Australia. However in questioning before the Tribunal, Mr Mendoza refuted this and said that he had always accepted that domestic violence constituted unacceptable behaviour.
More generally, Mr Mendoza explained the discrepancies between his statement to the Tribunal and the Police/Court record by saying that he had difficulty remembering the precise details of the events on the night in question and that he has subsequently put things out of his mind. He said he was confused about events. However he repeated that at the time his wife was having problems with depression and was not well.
The COPS Report (Supplementary Documents S5, pages 12 and13) was brought to Mr Mendoza’s attention by the Respondent. Specifically his attention was drawn to two items which listed DV (domestic violence) offences as “repeat”. He had no explanation for this. Further in the COPS report (page 14) it is stated: “PRIOR HISTORY OF VIOLENCE INCLUDING STALKING & INTIMIDATION: There is a history of physical violence but there have been no prior events created.” Again when this was put to him Mr Mendoza gave a general denial and suggested that this might be “his wife’s version” of events but that it was not his understanding of the situation.
CONSIDERATION
The Matter of Good Character
The Act at section 21 sets out the grounds upon which a person’s eligibility for citizenship is to be assessed. As noted above, the Respondent concedes that Mr Mendoza’s application has been rejected because he allegedly fails one of the eight criteria, although meeting the other seven (Tribunal Documents, page 17). The criteria “failed” is that of being “of good character at the time of the Minister’s decision on the application”: section 21(2)(h).
The Act contains no definition of what constitutes “good character” but in making its determination the Tribunal is guided by judicial interpretation and by the Citizenship Policy published by the Department dated 1 June 2016.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs, the Full Federal Court stated:
“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.”[10]
[10] (1996) 68 FCR 422 at 431-432.
The Citizenship Policy (at page 145) elaborates this by attaching to the phrase “enduring moral qualities” the further qualifications, namely:
·“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.”
Policy however is not the same as law. As this Tribunal said in Aston:
“Policy is not law. A statement of policy is not a prescription of binding criteria.”[11]
[11] Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (6 November 1985) at [21].
Nevertheless I must give due and proper consideration and weight to the statement of government policy which has been issued to assist and guide in the determination of questions of good character.[12]
[12] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
Page 147 of the Citizenship Policy lists 10 “characteristics of good character” which are to be expected in an applicant for citizenship. Critically in this case, one of those is:
·“be truthful and not practice deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
oproviding false personal information ….. during visa and citizenship applications
o……..
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
o…………..
ogiving false names and/or addresses to police.”
Mr Mendoza’s failure to meet this test in his Citizenship Application is, in my view, compounded by his failure to be open, honest and truthful in his application to this Tribunal.
On the other hand I must give some favourable consideration to the lack of any other negative dealings with the law enforcement authorities on the part of Mr Mendoza. There is no evidence that he has any other convictions or even driving offences.
Mr Mendoza has supplied a number of references from friends and work colleagues. Two of these are of very generalised character,[13] while one does reflect a knowledge of the common assault and reports Mr Mendoza’s remorsefulness about the event[14] and his subsequent improved behaviour towards his wife. Mr Mendoza admitted that the first two referees are or were employers of his and that they were unaware of his matter of common assault/domestic violence and to this extent I must give relatively little weight to them.
[13] Stephen Joseph (Applicant’s Document 1) and Grant Scorr (Applicant’s Document 3).
[14] Alfred De Jesus (Applicant’s Document 2).
I note the caveats drawn to my attention in relation to references which are contained in the Citizen Policy (page 155) and I bear this in mind in assessing these submissions.
A matter of balance
In seeking to obtain a grant of citizenship by conferral, several tests are imposed under the Citizenship Act. Mr Mendoza has been found by the Delegate to satisfy 7 of the 8 prescribed but to fall at the last hurdle of “good character”.[15]
[15] Tribunal Document T3, page 17.
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.
I am inclined to believe that Mr Mendoza now understands this and I recognise that it appears that he and Kathrina have a more settled domestic relationship between themselves and with their two children.
In the circumstances I would have given Mr Mendoza the benefit of the doubt on the issue of his being found guilty of common assault (domestic violence) as a one-off incident committed at a level which only attracted a relatively short-term good behaviour bond and with no reported incidents since that date.
However one of the significant manifestations of being of good character is not seeking to mislead or deceive government authorities, agencies or tribunals.
Mr Mendoza has sought, in my opinion, to mislead this Tribunal. His statement, made as recently as May 2017 seeks to cast his offence in an entirely misleading light. It significantly minimises the gravity of his actions and his degree of responsibility. It seeks to shift blame to his wife and call her mental health status into question.
In doing so, it leaves me with the impression that Mr Mendoza is still not fully appreciative of the gravity of his offence, nor has accepted a sufficient degree of ownership and responsibility for it.
None of these things speak well to Mr Mendoza’s character. In fact, taken together they are sufficient for me to conclude that he is not a person of good character at this time.
It is to be hoped that with the passage of time and a greater degree of insight Mr Mendoza may be able to demonstrate a change in his situation which could establish the basis for a renewed application for grant of citizenship by conferral which he has the right to make.
DECISION
For these reasons Mr Mendoza’s appeal to this Tribunal fails and the decision of the Delegate is affirmed.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of
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Associate
Dated: 27 March 2018
Date(s) of hearing: 16 March 2018 Applicant: In person Advocate for the Respondent: Jennifer Strugnell Solicitors for the Respondent: Minter Ellison
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