Mishra and Minister for Immigration and Border Protection (Citizenship)

Mishra and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2567 (30 July 2018)
Division:GENERAL DIVISION
File Number(s): 2017/0780
Re:Manishkumar Mishra
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:30 July 2018
Place:Brisbane

I affirm the decision under review.
...........................[SGD].....................................
Deputy President Dr P McDermott RFD
Catchwords
CITIZENSHIP – permanent resident – application for Australian Citizenship – application for citizenship refused on character grounds – whether the applicant was of good character – previous convictions – conduct since convictions – Australian’s observance of laws and openness in dealings
Legislation
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
Cases
Al Hashimi and Minister for Immigration and Citizenship [2012] AATA 534
Da Wei Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Saeidi Shoeili and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 182
Secondary Materials
Australian Citizenship Policy
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
30 July 2018
INTRODUCTION

The applicant first entered Australia on 27 August 2007 on a student visa (subclass 573) and was granted permanent residency on 31 January 2015.[1] The applicant is still the holder of a skilled regional permanent visa (subclass 887).
[1] Exhibit A, T-Documents, T8, p.56.
On 14 February 2016, the applicant lodged an application for Australian citizenship.[2]
[2] Exhibit A, T-Documents, T6.
On 11 May 2016 the Department of Immigration and Border Protection invited the applicant to comment on the findings of adverse information.[3]
[3] Exhibit A, T-Documents, T7.
On 5 July 2016 a delegate for the Minister for Immigration and Border Protection made a decision to refuse the applicant’s application for Australian citizenship under the Australian Citizenship Act 2007 (Cth).[4]
[4] Exhibit A, T-Documents, T8.
On 16 January 2017, the Department re-sent the decision of 5 July 2016 to the applicant after they became aware that the original decision had not been received by the applicant.
On 13 February 2017 the applicant made an application to this Tribunal to review the decision of the delegate.[5]
[5] Exhibit A, T-Documents, T2.
CRIMINAL HISTORY
In evidence is the National Police Check History report dated 12 May 2016 which contains the applicant’s disclosable criminal history.
On 20 May 2013 the applicant appeared before the Queanbeyan Local Court where he was fined $200.00 for common assault (DV) and $500.00 for assault occasioning actual bodily harm (DV).[6]
[6] Exhibit A, T-Documents, T7, p.51.
LEGISLATIVE FRAMEWORK
Section 20 of the Australian Citizenship Act 2007 (Cth) (“the Act”) outlines the requirements for becoming a citizen:
Requirements for becoming a citizen
A person becomes an Australian citizen under this Subdivision if:
(a) the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and
(b) if the person is required to make a pledge of commitment to become an Australian citizen -- the person makes that pledge.
Note: Sections 21 to 25 deal with the Minister approving the person becoming an Australian citizen. Sections 26 and 27 deal with the making of a pledge of commitment.
Section 21 of the Act provides for the application and eligibility requirements for citizenship:
Application and eligibility for citizenship
A person may make an application to the Minister to become an Australian citizen.
Note 1: Subsections (2) to (8) deal with eligibility.
Note 2: Section 46 sets out application requirements (which may include the payment of a fee).
General eligibility
(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.
(2A) Paragraphs (2)(d), (e) and (f) are taken to be satisfied if and only if the Minister is satisfied that the following apply:
(a) the person has sat a test approved in a determination under section 23A;
(b) the person was eligible to sit that test (worked out in accordance with that determination);
(c) the person started that test within the period worked out in accordance with that determination and completed that test within the period (the relevant test period) worked out in accordance with that determination;
(d) the person successfully completed that test (worked out in accordance with that determination) within the relevant test period.
Section 24 of the Act provides:
Minister’s decision
(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.
Note: The Minister may cancel an approval: see section 25.
(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).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
(2A) If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in relation to the person, the decision under subsection (1) of this section must be made by the Minister personally.
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions.
National security
(4) If the person is not covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen at a time when an adverse security assessment, or a qualified security assessment, in respect of the person is in force under the Australian Security Intelligence Organisation Act 1979 that the person is directly or indirectly a risk to security (within the meaning of section of that Act).
(4A) If the person is covered by subsection (4B), the Minister must not approve the person becoming an Australian citizen if the person:
(a) if subparagraph (4B)(b)(i) applies to the person:
(i) has been convicted of a national security offence; or
(ii) subject to subsection (4C), has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to a period of imprisonment of at least 5 years; or
(b) if subparagraph (4B)(b)(ii) applies to the person--has been convicted of a national security offence.
(4B) A person is covered by this subsection if:
(a) at the time the person made the application under section 21, the person:
(i) is not a national of any country; and
(ii) is not a citizen of any country; and
(b) either:
(i) the person was born in Australia; or
(ii) the person was born outside Australia and, at the time of the person's birth, the person had a parent who was an Australian citizen.
(4C) The Minister may decide that subparagraph (4A)(a)(ii) does not apply in relation to a person if, taking into account the circumstances that resulted in the person's conviction, the Minister is satisfied that it would be unreasonable for that subparagraph to apply in relation to the person.
(4D) To avoid doubt, subsection (4A) applies to a person who is eligible to become an Australian citizen under subsection 21(8).
Person not present in Australia
(5) If:
(a) the person is covered by subsection 21(2), (3) or (4); and
(aa) the Minister is satisfied that the person did not satisfy the special residence requirement referred to in section 22A or 22B; and
(b) the Minister did not apply subsection 22(9) in relation to the person; and
(c) the Minister did not apply subsection 22(11) in relation to the person;
the Minister must not approve the person becoming an Australian citizen at a time when the person is not present in Australia.
Offences
(6) The Minister must not approve the person becoming an Australian citizen at a time:
(a) when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person; or
(b) when the person is confined to a prison in Australia; or
(c) during the period of 2 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition on the person of a serious prison sentence; or
(d) if the person is a serious repeat offender in relation to a serious prison sentence -- during the period of 10 years after the end of any period during which the person has been confined to a prison in Australia because of the imposition of that sentence; or
(e) if the person has been released from serving the whole or a part of a sentence of imprisonment on parole or licence--during any period during which action can be taken under an Australian law to require the person to serve the whole or a part of that sentence; or
(f) if the person:
(i) has been released by a court from serving the whole or a part of a sentence of imprisonment; and
(ii) has been so released because the person gave a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person's behaviour;
during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or
(g) if, in respect of proceedings for an offence against an Australian law in relation to the person:
(i) a court does not impose a sentence of imprisonment on the person; and
(ii) the court releases the person because the person gives a security, with or without sureties, by recognizance or otherwise, that the person will comply with conditions relating to the person's behaviour;
during any period during which action can be taken against the person under an Australian law because of a breach of a condition of that security; or
(h) during any period during which the person is confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.
Cessation of citizenship
(7) If the person has at any time ceased to be an Australian citizen, the Minister must not approve the person becoming an Australian citizen during the period of 12 months starting on the day on which the person ceased, or last ceased, to be an Australian citizen.
Statelessness
(8) However, subsections (6) and (7) do not apply to a person covered by subsection 21(8) (about statelessness).
EVIDENCE
On 20 May 2013, the applicant attended upon the Queanbeyan Local Court. The applicant was charged with “assault occasioning actual bodily harm domestic violence related” (1 May 2013) and “common assault domestic violence related” (2 May 2013). Particulars of these offences are disclosed in the court attendance notice. The applicant did not dispute the facts outlined in the court attendance notice. An extract appears below:
Court Attendance Notice
“About 9:30pm on 1^st May 2013 both the accused and victim were at their residence of [sensitive information] for the past year. The victim was in bed attempting to go to sleep when the accused approached her asking to have sex. To which the victim replied she was to (sic) tired and just wanted to go to sleep. The accused became angry after this reply and slapped the victim multiple times to face and pulled her hair outwards. This resulted in the victim to endure immediate pain to her face, top part of her head and causing the left side of her lip to swell up leaving a cut on the inside of her lip. Straight after this the accused retrieved a 50 centimetre long by 10 centimetre wide plank of wood from a corner in the couples bedroom. Seeing this the victim pulled the blankets from the bed over herself in an attempt to protect herself from the accused. The accused approached the bed with the peace of wood and struck the victim while under the blankets 2-3 times. As a result of this the victim has soreness at the back of her neck and the back of her left leg below her buttocks.
The accused demanded the victim to say sorry before she went to sleep. The accused stayed up playing video games and soon after also went to sleep without further incidents.
About 4pm on 2^nd May 2013 the accused and the victim became engaged in an argument about money. The victim told the accused she had taken some money out of their joint bank account and was going to pack her bags and move out of the residence. The accused again became angry at the victim and grabbed her around the throat saying “why are you doing this? Why did you take the money?” As a result of this the victim has soreness to the front section of her throat.
About 4:10pm on 2^nd May 2013 police arrived at [sensitive information]. Here the accused made admissions to police about assaulting the victim the previous night by saying “I had an argument with my wife last night and I hit her”. The accused was placed under arrest and conveyed to Queanbeyan Police Station where all requirements were complied with under the Law Enforcement Powers and Responsibility Act 2002.”
Report of Dr Matthew Worthington, clinical psychologist dated 26 July 2017
The applicant attended Dr Worthington’s rooms on 16 July 2017 and 19 July 2017. He reported that he had a caring and nurturing upbringing and a good relationship with his family. He did not experience any trauma throughout his upbringing and was not exposed to violence.
The applicant reported that his marriage to his then wife was arranged and he had only met her twice before getting married. They met in January 2004 and were married in May 2004. In 2006, they had their first son.
In January 2007 the applicant moved to Australia with his then wife but their son stayed in India with his family. The applicant reported that this left a huge void inside him.
The applicant reported the history of the domestic violence incident as follows:
(a)The applicant and his then wife had a dinner with a friend from Melbourne. This friend’s partner behaved strangely at the dinner making comments to the applicant’s then wife that he wanted to be her sister in his next life. The friend’s partner had a reputation for being “dodgy” and would manipulate people for money. The partner also commented that he did not know how the applicant and his then wife dealt with being away from their son for so long. This made them upset as one of the reasons why they could not bring their son to Australia was because they could not afford the medical expenses.
(b)After the friends left, the applicant and his then wife started arguing. She thought the applicant was being dismissive and grabbed him by the neck. Her nails accidentally went into the applicant’s neck causing his elbow to jerk backwards. His elbow collided with her mouth catching her lip. After hours of arguing the applicant went to the door and picked up a piece of wood and hit the bed with it. The applicant reported that he asked his then wife whether he had hit her and that if he did, he did not mean to. She did not respond.
(c)The applicant did not report any violence on the following day but did report that his then wife had informed him that she had withdrawn all of the money from their joint bank account and that she was leaving. She had emptied most of the house and was staying with the friends who were at the dinner the previous night. He begged her not to leave but as soon as she had left the police arrived at his door.
(d)The applicant reported that he was devastated that his then wife wanted a divorce and in an effort to reunite, engaged with a mediator in 2014 but this was unsuccessful. Six months later the applicant’s son came over and he applied for full custody. The applicant reported that countless attempts were made to contact his then wife to allow her to reconnect with her son but she never engaged or responded. The courts in India granted the applicant full custody of his son and deemed the applicant’s then wife to have given up all responsibility for their son.
(e)The applicant has had a second marriage but this was brief and unsuccessful as she abused drugs and pain killers.
Dr Worthington considers that the applicant’s reaction in 2013 was a “manifestation of a fear of being abandoned and the intensity of this fear stems from his childhood”. At the time the applicant was under extreme duress because he was missing his son, had witnessed someone who he described as untrustworthy talking intimately to his then wife about his life, was living in a confined space, was experiencing financial hardship and was in the process of starting a business. Dr Worthington considers that the applicant’s acts in 2013 were a result of his highly distressed state causing a lack of any rational intentionality – he experienced a “temporary lapse from reality … due to immense strain”. Dr Worthington also noted that the applicant was immensely remorseful and so there is a very low chance of recidivism.
Statutory Declaration of Nayak Dhawal dated 28 February 2017
Mr Dhawal is a very good friend of the applicant. He has known the applicant for approximately six years, and also knew the applicant’s then wife. Mr Dhawal considers it shocking that there was domestic violence between the couple as he had known them as “the happy couple” for many years. Mr Dhawal noted that both he and his parents had made attempts to contact the applicant’s then wife at the time to “patch up the rocky relationship” but these attempts were unsuccessful. Mr Dhawal considers that the applicant is remorseful for what happened and has made positive progress since this incident.
Statutory Declaration of Gail Skinner dated 7 March 2017
Ms Skinner is the owner of White Knight Dry Cleaners and has known the applicant for two years, which includes one year where the applicant was a part-time driver for the company. Ms Skinner outlined that as part of the pre-employment process, the applicant was required to provide an Australian Federal Police check. Ms Skinner outlined that the applicant was completely honest with her about his convictions and after making their own enquiries (and reference checks) they were completely satisfied that the applicant was a suitable candidate for the role.
Ms Skinner considers that the applicant has shown throughout his employment “the right aptitude, honesty, politeness, commitment, respect, affection and care for other team members”.
Statutory Declaration of Patel Hirenkumar dated 8 March 2017
Mr Hirenkumar has known the applicant for over six years and considers him a close family friend. Mr Hirenkumar also knows the applicant’s family. Mr Hirenkumar wrote that he was aware of the “alleged” domestic violence incident which caused the divorce and when he went to visit the applicant at the time he was “remorseful and down”. Mr Hirenkumar noted that despite the applicant’s efforts to resurrect the relationship they turned out to be “fruitless”. Mr Hirenkumar considers the applicant “a good soul who has learnt from his mistake”.
The applicant’s statutory declaration dated 9 March 2017

The applicant outlines that he and his ex-wife had a “very smooth and healthy relationship” however they would argue over their son being overseas as they both missed him dearly. On the night of the domestic violence incident, they had friends over for dinner and discussions started about their child being overseas. The friend’s husband made comments about how he appreciated the sacrifice the applicant’s ex-wife was making for their son by being away and “other unhelpful philosophical things”.
The applicant reports that once the guests left, the applicant and his ex-wife brought up the issue of their only child being overseas which started an argument between them. The applicant decided to walk away from the argument in order to not further escalate the matter but as he was leaving, his ex-wife “held me from the collar and dig[ged] her nails into my neck”. The applicant writes that he then shrugged his shoulders to get her off his neck and by accident, his elbow or hand hit her face. The argument then escalated and the applicant picked up a wooden plank to threaten her to get away from him and this is what has been said to be the episode of domestic violence. That night they went to bed but did not speak to each other. The next morning the applicant’s ex-wife left the home early and he was later told by her that she had withdrawn all of the money from their joint bank account, had packed her bags and was moving out.
The applicant writes that the incident happened unintentionally which he regrets and continues to regret. It happened at a time when the joint partnership of the Indian grocery store had been established and he was also working part-time for Woolworths to be able to provide for his family. He also outlines that he would call her parents and his parents every day to try and find a solution for the issue but while her parents were supportive, his ex-wife “threatened to take her own life if they tried to convince her any further”. The applicant accepted the allegations made against him on the basis he wanted to calm things down and mutually resolve the issue. The applicant engaged a mediator to try and resolve the matter but the applicant’s ex-wife made unreasonable demands throughout the process including that he paid for all of their son’s visits instead of being shared equally as initially agreed.
The applicant considers he is lucky to be in Australia and indebted for every moment of his life here and he cannot stress enough how much he values Australian citizenship.
The applicant asserts that he never received the correspondence from the Department inviting him to comment on the conviction information and as such he never made any comments. He claimed that he only found out about this when he contacted the Department about the status of his application and the officer mentioned it.
Support letter of Chudamani Sapkota dated 6 April 2017
Mr Sapkota has known the applicant for approximately four years and considers him of “good moral conduct, compassionate, helpful, friendly, approachable and family orientated”. Mr Sapkota wrote that he is aware of the applicant’s divorce but the applicant has repented about this and moved on with his life.
Statutory Declaration of Davinder Singh Kanda and Amandeep Kaur dated 11 October 2017
Mr Kanda and Ms Kaur have been friends with the applicant since 2007 when they were classmates at the same college in Melbourne. They consider that the applicant always had positive views and feelings of love for his family and he was a “caring and loving partner and a much focused father and son who respected his parents very much”. They outline that the applicant would become very emotional thinking about being away from his only child and that he wanted the best for his child.
Mr Kanda and the applicant also opened an Indian grocery store together. They also lived next door to each other but would also have dinner together at least a couple of times a week. Mr Kanda and Ms Kaur outline that he had never heard the applicant and his ex-wife argue except for when his ex-wife would blame the applicant for not getting their son to Australia. Mr Kanda was aware of the “alleged” domestic violence and considers the applicant accepted the allegations in order to “not make matters worse”. Mr Kanda considers that the applicant left “no stone unturned” with regards to trying to resolve the issues with his ex-wife including engaging a mediator.
During this time, Mr Kanda noted that the applicant not only worked in their joint business but also an additional 35 hours per week at Woolworths to avoid further stress and reduce his dire situation.
CONSIDERATION
I have already mentioned that the applicant has permanent residency in Australia. My decision has no bearing on his entitlement to remain in Australia. His son also has permanent residency.
I am required to consider whether the applicant was of good character at the time of the Minister’s decision. Section 21(2) of the Act provides that:
(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.
It was decided in Da Wei Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94 (at 103) that the standard of proof is on the balance of probabilities.
The Act does not define the expression “good character” however this expression was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 when reviewing a decision made under the former section 180A of the Migration Act 1958 (Cth). At 154-155, Deputy President McMahon stated:
“Good character” cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as:
1. The aggregate of qualities that distinguishes one person or thing from others;
2. Moral constitution, as of a person or people;
3. Good moral constitution or status;
4. Reputation;
5. Good repute; and
6. An account of the qualities or peculiarities of a person or thing.
In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, Lee J remarked (at 431) :
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 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 while 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…
Davies J remarked (at 427-428):
The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision…
In Da Wei Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94, Deputy President Forgie explained (at 133):
It would seem, then, that the authorities are drawing attention to a person’s ability to know what society considers good, right and proper and to conduct him or herself in a manner that accords with society’s values.
I am required to essentially to make a “value judgment” of whether the applicant was of good character at the time of the decision of the delegate.
Employment
I am certainly able to consider the applicant’s contribution to society through his employment in determining whether he is of good character. In Al Hashimi and Minister for Immigration and Citizenship [2012] AATA 534 the Tribunal remarked (at 53) that “stable, gainful employment” would reflect favourably on an applicant’s character. There is a positive reference from the owner of a dry cleaning business about the applicant which verifies that he had employment as a part-time driver as declared in his statutory declaration dated 14 March 2016. I give some weight to this reference as the owner is aware of his criminal history.
The offence
The Australian Citizenship Policy (“the Policy”) provides some guidance as to the matters that I should consider in determining whether the applicant was of good character. The guidelines are not exhaustive. It is important to have regard to the criminal history of the applicant when determining whether he is of good character.
Chapter 11 of the Policy states that an indication of whether an applicant is of good character is someone who respects and abides by the laws of Australia.
I have already mentioned the circumstances in relation to the convictions relating to common assault and assault occasioning bodily harm that were committed on 1 May 2013 and 2 May 2013 respectively. These offences are certainly serious offences. This is because they involved a crime of violence whereby the applicant struck his wife with a plank of wood after she declined to have sex with him; she suffered pain to her face, head, left side of her lip, back of her neck and back of her left leg. This was a crime of domestic violence. On the next day after the incident the applicant in another incident grabbed his wife by the throat; she had then moved out of the residence.
The applicant has disputed the facts that were put forward by the victim of the assault. The version of facts that was placed before the court was that the applicant wanted to have sex with his wife who was attempting to go to sleep:
“The victim was in bed attempting to go to sleep when the accused approached her asking to have sex. To which the victim replied she was to (sic) tired and just wanted to go to sleep. The accused became angry after this reply and slapped the victim multiple times to face and pulled her hair outwards. This resulted in the victim to endure immediate pain to her face, top part of her head and causing the left side of her lip to swell up leaving a cut on the inside of her lip. Straight after this the accused retrieved a 50 centimetre long by 10 centimetre wide plank of wood from a corner in the couples bedroom. Seeing this the victim pulled the blankets from the bed over herself in an attempt to protect herself from the accused. The accused approached the bed with the peace of wood and struck the victim while under the blankets 2-3 times. As a result of this the victim has soreness at the back of her neck and the back of her left leg below her buttocks.”
The various accounts of the initial assault that have been provided by the applicant are quite different from the facts that were provided to the court. In the account of the incident that was provided to Dr Worthington, as recorded in his report of 26 July 2017, the applicant asserts that his wife had grabbed his neck and that the applicant’s elbow had jerked backwards and collided with her mouth. The applicant then told Dr Worthington that after 4 hours of arguing, he picked up a piece of wood and hit the bed where his wife was under the covers but he did not intend to hit her. He does not appear to have informed Dr Worthington that he had become angry after his wife had refused to have sex with him. The applicant has provided another different account of the first assault in his statutory declaration dated 9 March 2017. In that statutory declaration he asserts that he “picked up a wooden plank or something as such to threaten her to get away from me”. He added “this episode is what was domestic violence or something in between those lines”.
The different accounts of the initial assault that have been provided by the applicant markedly differ from the facts that were provided to the court. In those different accounts the applicant made no mention of the fact that he had assaulted his wife after he had become angry after she had declined his invitation for sex. The court was informed that the applicant had hit his wife when she was lying in her bed. In one account the applicant had admitted that he had hit the bed with a plank of wood while his wife was in bed. In another account he asserted that he used the plank essentially as a defensive measure to “threaten her to get away from me”.
The applicant in cross-examination gave an explanation for why he used the plank, he asserted that he wanted to scare his wife:
“They just came and knock my door that, “One of your friends or one of your - sorry, neighbours - has called us, that you guys are in argument” and that’s pretty much, sir and that is when actually, that’s what I’m mentioning, that is the time when she showed the marks to the police that, “This is where he hit me last night”.‑ ‑ ‑ I just - I remember only thing that I admitted to everything. I said, “Yes, there was an incident”. Plus, the police person who was speaking to my ex-wife came over to me and he said that, “She mentioned that you hit her with a plank” and I said, “Yes, I hit her, but that was by mistake, I was just trying to scare her”.”
The applicant gave another account for using the plank of wood under cross-examination. He remarked:
“I had bought some wooden planks for my bed so there was a piece of it sitting aside by the door and I just picked it up and in order to scare her I hit on the blanket side and in which I ended up hitting her foot or toe or something, I don’t know what did I hit. But next day, I just remember vaguely that next day when the police came over she tried showing some mark on her leg and that is - I believe I would have hit her and - yes, next day this thing kept on continuing”.
His different accounts for why he used the plank of wood are quite inconsistent and lack creditability.
At the hearing the applicant asserted that the striking of his wife with the plank of wood was an “accident” and that he was just trying to shut her up. He also claimed that it was a “mistake”. I do not accept his explanation for this serious assault. The applicant also gave evidence that he denied approaching his wife for sex and instead claimed that he had tried to comfort her.
The various accounts of the second assault that have been provided by the applicant are different from the account that was provided to the court. The events of the second assault as relayed to Dr Worthington contain no reference to the applicant having grabbed his wife’s throat and hurting her. Instead, he asserts that he touched her feet as a mark of respect. The applicant has provided another different account of the second assault in his statutory declaration dated 9 March 2017, whereby in that declaration he does not mention any such mark of respect and does not mention grabbing the throat of the victim. At the hearing the applicant claimed that he did not remember grabbing his wife’s throat.
The applicant has certainly disputed the facts that were put forward by the victim of the assault. However, as explained by Deputy President Forgie in Da Wei Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94 (at 134):
It is not my task to ascertain the precise facts of the offence. I cannot go behind the convictions themselves and question whether they were properly reached. I cannot question whether the essential elements of each offence were made out and must accept that they were.
Therefore, I accept that the applicant has committed the offences for which he was convicted when assessing whether he is of good character. In this matter I have given some weight to the circumstances of the offence put forward by the victim of the assault.
A prior conviction is certainly not fatal to a determination of good character. The applicant in his final submissions relied on the decision of the Tribunal in Saeidi Shoeili and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 182 in support of his submission.
The applicant in the current matter has committed serious offences involving domestic violence over a period of two days.
There are character references which essentially indicate that the offence was out of character. However, I do not give great weight to these references which do not set out the circumstances of the offences.
Lack of proper disclosure
Honesty in making statements is certainly an indication of good character. In Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon stated (at 155-156):
These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.
On 14 February 2016, in the applicant’s application for citizenship by conferral, he responded to the question about whether the applicant had ever been convicted of an offence. The applicant provided the following answer:
“Yes
DV – QUEANBEYAN COURT – 20/05/2013”
The Policy refers to the need for an applicant to be “truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations”. In my opinion the applicant failed to disclose that he had been convicted of two assault offences which are serious offences, one of which involved the occasioning of bodily harm. His failure to disclose both of these serious offences when making his application for citizenship by conferral is certainly a matter of deception. The applicant would have certainly understood the question as he has been a student in Australia. I am unable to find that the applicant is of good character when he has failed to disclose both serious assault offences.
Acceptance of responsibility
It is appropriate to have regard to whether the applicant has accepted responsibility and shown remorse.
In the applicant’s statutory declaration dated 9 March 2017 he did not disclose that in the commission of the offence of assault occasioning bodily harm, that he had used a plank of wood to hit his wife who refused to have sex with him. He also did not disclose that he was angry on that occasion. In his statutory declaration the applicant essentially asserted that he used the plank as a defensive measure as he stated that he “picked up a wooden plank or something as such to threaten her to get away from me”. Further, the applicant did not disclose the circumstances of his offence of common assault when he grabbed his wife by the throat.
I do not consider that the applicant accepts responsibility for his actions by failing to make proper disclosure of his offences and the nature of the injuries he inflicted on his ex-wife. I do not accept his explanation that these injuries were an accident. He has failed to disclose to Dr Worthington the full circumstances of his offences involving issues of anger. While Dr Worthington considers that the applicant takes full responsibility for his actions: it is difficult for me to accept this conclusion where the full circumstances of his offending do not appear to be disclosed to Dr Worthington. Dr Worthington confirmed that it was his understanding of the history that there was one incident and he was arrested by the police on the night of that one incident. Dr Worthington also confirmed that in terms of the applicant’s mental state, there was no diagnosis of a psychiatric condition and that the applicant was not on any medication and he did not appear anxious or depressed. Dr Worthington gave his opinion that the applicant’s reaction on the night he was arrested in 2013 was a manifestation of a fear of being abandoned and the intensity of this fear stems from his childhood. In cross-examination, Dr Worthington conceded that from the history in the report, the applicant told him that it was pleasing to remember these times of his childhood. In evidence he explained the basis of his opinion.
“when any child is removed from their parents, that’s going to be a trauma. The issue is, there’s a number of other factors involved. For example, there could be genetic factors which bring about resilience. There could be any other number of other factors which will supplement and support for the person. For example, it might be a part of the culture that you move away from the parents and it’s like a norm and if you have a strong support network that supplement not having a family, then that can definitely supplement to some degree but, nevertheless, there’s still a trauma there. But that doesn’t mean that a person is going to be violent because the trauma there. You know, everybody is different, to be honest with you. It depends on the innate resilience that they have. I see some people with tremendous trauma - tremendous trauma, off the charts trauma, and yet they have coped with some severe adversity but if you were put them in a situation like this, they may not be able to. But, then again, if you put anyone in a situation like this, they may not be able”.

The opinion of Dr Worthington appears to be presented as a hypothesis as he has commented that “there could be any other number of other factors”. While the hypothesis itself may have validity I would not give great weight to an opinion unless that opinion is based on facts which are more probable than not.
Furthermore, at the hearing the report of Dr Worthington required amendment. The reference that the applicant “does blame others” was verbally amended to “does not blame others” and three references to “Mr Kumar” were verbally amended to refer to “Mr Mishra” instead. I do not give great weight to the report which when filed was not corrected and which does not contain the correct name of the applicant.
I do not consider that the applicant accepts responsibility for his actions in putting forward references which treat the assaults as allegations. In one statutory declaration the declarant referred to “alleged domestic violence”.[7] In other references the declarants have referred to “Mr Mishra’s ex alleging him of domestic violence”.[8]
[7] Statutory Declaration of Nayak Dhawal dated 28 February 2017.
[8] Statutory Declaration of Davinder Singh Kanda and Amandeep Kaur dated 11 October 2017.
I also do not consider that the applicant accepts responsibility for his actions by putting forward a reference which purports to absolve the applicant of any blame. In one statutory declaration the declarants are being critical of the company of the victim as well as remarking “we felt like Mr Mishra was not the one to blame”. [9]
[9] Statutory Declaration of Davinder Singh Kanda and Amandeep Kaur dated 11 October 2017.
In these circumstances where the applicant has provided references which refer to the assault offences as allegations and which effectively attribute blame to the victim of the assault, the applicant has not accepted responsibility for his actions in committing domestic violence.
Dr Worthington in giving evidence remarked that the applicant was in a highly distressed state at the time of the offences. Dr Worthington was asked if it was possible for an incident to happen again if certain factors are present such as severe financial distress and living in a “shoe box”. Dr Worthington stated that anything is possible but the likelihood would be decreased if a person engages in therapy or some kind of intervention. The failure of the applicant to engage in therapy or some intervention makes me conclude that the applicant has still not fully accepted responsibility for his actions.
CONCLUSION
I affirm the decision of the Minister’s delegate dated 5 July 2016. I am not satisfied that the applicant was of good character at the time of the decision of the Minister’s delegate.[10] In terms of the analysis in Da Wei Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94, the applicant has not conducted himself in a manner that accords with society’s values. Domestic violence is certainly quite contrary to the values of our society.
[10] Australian Citizenship Act 2007 (Cth) section 21(2)(h).
In Ahori v Minister for Immigration and Border Protection [2017] AATA 2158 at 53, Senior Member Sosso (as he then was) remarked: “Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting”. Senior Member Sosso added: “there would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character and not a person who deserves the conferral of Australian citizenship”. I respectfully adopt these remarks.
There is no cogent evidence before me that the applicant, who has committed domestic violence, is a person of good character. There are a number of other reasons for why I have come to this conclusion: he has still not accepted responsibility for his actions, he has given inconsistent explanations of the circumstances of his assault convictions, he has given references which treat those circumstances as allegations and absolve him of any blame for his convictions, and in his application for citizenship by conferral he did not fully disclose both serious assault convictions.
In the circumstances I do not consider it appropriate to grant the applicant Australian citizenship.
DECISION
I affirm the decision of the Minister’s delegate dated 5 July 2016.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.....................[SGD]...........................
Associate
Dated:            30 July 2018
Date of Hearing:  16 January 2018
The Applicant’s Representative:        Mr Christian Dawson
Solicitor for the Respondent:             Sparke Helmore Lawyers

[2018] AATA 2567

30 July 2018

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