Odesho and Minister for Home Affairs (Citizenship)
[2019] AATA 3946
•27 September 2019
Odesho and Minister for Home Affairs (Citizenship) [2019] AATA 3946 (27 September 2019)
Division:GENERAL DIVISION
File Number(s): 2019/2522
Re:Gorgees Odesho
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:27 September 2019
Place:Sydney
The decision under review is set aside and the matter remitted to the Respondent with a direction to the effect that the Applicant meets the good character requirements of section 21(2)(h) of the Australian Citizenship Act 2007.
.........................[sgd]...............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – refusal – whether applicant of good character – common assault – apprehended domestic violence order issued – traffic offences – consideration of applicant’s character – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Crimes Act 1900 (NSW)
Migration Act 1958 (Cth)
CASES
Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
Chen v Minister for Immigration [2007] AATA 1815
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198
Commonwealth v Twyman (1985) 8 ALD 554
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister from Home Affairs v G [2019] FCAFC 79
Prasad and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1506
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs(No.2) (1979) 2 ALD 634
Re KLGL and Australian Prudential Regulation Authority [2008] AATA 542
Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608
Shi v Migration Agents Registration Authority [2008] HCA 31
Sui and Minister for Immigration and Citizenship [2008] AATA 1062
Umer and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1630
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Instructions, 1 July 2014
Citizenship Policy, effective 1 June 2016
Citizenship Procedural Instructions
Dennis Pearce: Administrative Appeals Tribunal (LexisNexis, Butterworth, 4th edition, 2015)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
27 September 2019
Mr Odesho (the Applicant) seeks a review of a decision by a Delegate of the Minister (the Respondent) to refuse his application for a grant of Australian citizenship by conferral.
The initial application for citizenship was lodged on 28 June 2017; the refusal decision was made on 17 April 2019; the application for review was received by the Tribunal on 6 May 2019 and the matter was heard by the Tribunal on 26 September 2019.
The Applicant is citizen of the Republic of Iraq. He arrived in Australia in July 2009 and was granted a Humanitarian (subclass XB200) visa in April 2009. He is now 31 years of age.
The basis for the Delegate’s decision was their assessment that the Applicant was not a person of good character as required under section 21(2)(h) of the Australian Citizenship Act 2007 (the Act).
THE LEGISLATIVE REGIME
Grants of citizenship by conferral are made under section 21 of the Act.
Under that section a person is eligible to seek citizenship by conferral provided that they meet certain requirements as specified in that section. These are enumerated in section 21(2) from (a) to (h) and all of the requirements must be satisfied. In the event that they are, then the applicant may be considered for citizenship. The Minister is obliged to make a decision to grant or to refuse a citizenship application (section 24(1)) but has discretion in reaching that decision. In other words, the Minister must make a decision on the application but he may make that decision favourably or unfavourably to the applicant. Finally, citizenship only becomes enlivened once the approved individual has taken the mandated pledge of commitment (section 26).
One of the section 21(2) requirements which must be met is that the person:
(h) is of good character at the time of the Minister’s decision on the application.
This requires the Minister to be satisfied that the applicant is of good character at a specific time, namely when the decision on the application is made. The Minister’s authorised Delegate made that decision on 17 April 2019, believing that, at that date, the Applicant had not established that he was a person of good character.
The Tribunal must now make its own decision on that point as of 26 September 2019 and do so on the basis of the material which it has before it. The decision is de novo and the facts are those most contemporary. The judicial authority for this proposition is as stated below.
The Tribunal is established as a merits-review body and its responsibility is to review administrative decisions (made under legislation conferring such powers upon it) taking into account the merits of the case in question, the need to reach the correct and preferable decision in each individual case and to promote the objectives of good government.[1]
[1] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307.
It is important to state the general principles upon which the Tribunal must proceed in its own independent decision making. These may be summarised as including:
“The Tribunal’s duty is to make the correct and preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[2]
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[3]
“The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed for the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion.”[4]
“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[5]
[2] Re Drake and Minister for Immigration and Ethnic Affairs(No.2) (1979) 2 ALD 634 at [640].
[3] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [page 11].
[4] Dennis Pearce: Administrative Appeals Tribunal (LexisNexis, Butterworth, 4th edition, 2015) at page 301 citing Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198; Commonwealth v Twyman (1985) 8 ALD 554 and Re KLGL and Australian Prudential Regulation Authority [2008] AATA 542.
[5] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
In making a decision on the material before it at the time of hearing, the Tribunal must have regard to both the Policy which complements the Act and any judicial guidance on its interpretation. The Policy in question is the Citizenship Policy (the Policy) which came into effect on 1 June 2016.
It is important to establish what constitutes “good character”. As this term is not defined in the legislation itself, the Tribunal takes its guidance from decisions of the Court.
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.”[6]
[6] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432.
It is further accepted that there should also be some evidence that what a person says, does or what they are heard to say or seen to do should be taken as evidence of their acceptance of the values and norms to which they are expected to adhere and be loyal.[7]
[7] Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
The Citizenship Policy (at p. 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.”
An applicant’s behaviour is considered to be a “manifestation of their essential characteristics” in this regard. An applicant may be found to be of good character if they have demonstrated good enduring or lasting moral qualities that are evident before their visa application and throughout their migration and citizenship process (page 156) and indeed by assessing the totality of their life and participation in the Australian community.
THE CITIZENSHIP POLICY
It is necessary to give some consideration to the nature and status of the Policy.
The Minister promulgated the Citizenship Policy (effective 1 June 2016) the role of which is
“to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.”[8]
[8] Citizenship Policy (1 June 2016) at [1].
The Tribunal notes that prior to the introduction of the Policy, before 1 June 2016, decision-makers were required to have regard to what were then the Australian Citizenship Instructions (ACIs). That document had a similar opening paragraph as the Policy but included an additional penultimate sentence which read: “Decision makers should be mindful that policy must not be applied inflexibly.”
In Minister for Home Affairs v G the Full Federal Court, in reference to a case initiated before the Citizenship Policy had superseded the ACIs, stated:
“There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.”[9]
[9] Minister from Home Affairs v G [2019] FCAFC 79 at [18].
The same caveat applies to the Citizenship Policy.
This contrasts, for example, with the power of the Minister under section 499 of the Migration Act 1958 where legislative authority is given to the Minister to issue “directions” to decision-makers about the exercise of their functions or powers which are biding upon such decision-makers.
Nevertheless, decision-makers (including this Tribunal) must be guided by the principles set out clearly in the decision in Drake and Minister for Immigration and Ethnic Affairs (No 2) by the then AAT President Brennan J:
Not only is it lawful for the Minister to form a guiding policy; its promulgation is desirable, for reasons stated above. Its promulgation is consistent with the view of the distinguished American writer on administrative law, Professor K C Davis, a view which has received judicial approval in the United States:
When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules.
(See Administrative Law Treatise, 2nd ed vol 2 para 8.8.)
That is a commendable approach. It is not a rule of law, but it is none the less valuable as a principle of discretionary decision-making.
In Drake's case, supra, at 601, Smithers J expressed the opinion that “no substantial fault can be found” with the Minister's policy and as that is so there is no reason why the Minister should not apply it in deciding the cases before him. Application of a policy of this kind does not mean an unquestioning adoption of its standards and values, but rather an assumption that, in the absence of any reason to the contrary, its standards and values are appropriate to guide the decision in cases falling within its terms. It is in this sense that I use the term “apply” hereafter with reference to the Minister's stated policy.
It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal's duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function. (1979) 2 ALD 634 at 643
In fulfilling its function, the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which led to the making of the decision under review. But it is not bound to do so. Of course, the Tribunal would be in error to apply an unlawful ministerial policy to cases it decides, for an application of unlawful policy vitiates the consequential decision. That problem does not arise in the present case.
His Honour also stated:
The Minister must decide each of the cases under ss 12 and 13 on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.
Policy indeed 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.”[10]
[10] Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at [376].
Similarly the Tribunal has made a number of observations on this point.
In relation to both the Policy and the Instructions, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
“I do not accept the Australian Citizenship Instructions[11] are useful aids to the interpretation of the statute. At best they represent the respondent’s opinion as to the correct interpretation of the legislation. My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.”[12]
The Policy itself states clearly: “Policy cannot constrain the exercise of delegated powers under the Act or the Regulations”[13] and this indicates that a tribunal should be prepared to be flexible in its interpretation of the Policy to ensure that it reflects properly the facts pertinent to each individual case.
[11] These “Instructions” (last made on 26 February 2015) have since been replaced by the Citizenship Policy (1 June 2016) in the same terms. See Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) at 1. The current set of Instructions are a different form of advice to decision-makers.
[12] Kumar and Minister for Immigration and Border Protection [2014] AATA 944 at [7].
[13] Citizenship Policy (1 June 2016) at page [1].
CITIZENSHIP PROCEDURAL INSTRUCTIONS
In addition to the legislation and the Policy there are yet further sets of guidelines to which a decision-maker is required to have regard. These are the (Revised) Citizenship Procedural Instructions (CPIs). Their stated purpose is
“to identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship under the Australian Citizenship Act 2007.”
As with the Policy, the CPIs are a guide to decision-makers, they must be considered in the decision-making process but they cannot be taken as binding.
Part 4.7 of these CPIs outlines a variety of factors which decision makers may consider in assessing whether an applicant is of good character. These factors include whether the applicant has committed an offence and whether it was serious or minor. Examples of what the Instructions regard as “Serious” offences include crimes of violence, in which is included acts of domestic violence. Minor offences include shoplifting, traffic offences which have been included in a criminal record and offences which do not lead to a conviction or a sentence.
The length of the sentence, if one has been imposed, may be a factor for decision makers to take into account. The decision-maker must also take into account any ongoing obligations in relation to the sentence received, such as good behaviour bonds. When weighing information, the CPIs provide that a decision-maker should take into account the length of time since the offending was committed and, in relation to serious offences, a significant amount of time may have to have passed before a decision-maker can be satisfied that a person is of good character.
THE BASIS OF THE REFUSAL DECISION
The basis for the Delegate’s refusal of the citizenship application is set out in the Respondent’s Statement of Facts, Issues and Contentions as follows (footnotes omitted):
(23) The applicant was convicted on 12 September 2013, and was sentenced to a good behaviour bond for 9 months. The NSW Police facts sheet for this offence indicates that the applicant and his girlfriend argued after they had ended their relationship earlier that day. The applicant “grabbed the victim by the top of her hair and pushed her head down” to the same level as his stomach and did not let go for about two minutes. The applicant then slapped the victim with his open hand on her face/ear area. The victim left the residence in fear and called the Police after the applicant said “I’m going to come to your house”.
(24) The applicant pleaded guilty to the common assault. He was convicted and directed to enter into a good behaviour bond for 9 months. A final Apprehended Domestic Violence Order was also issued against the applicant.
The Statement goes on (footnotes omitted):
(25) While the Minister accepts that this is the applicant’s only offence and the offending took place in 2013, the police facts sheet indicates that the applicant had been violent to the victim in the past, but she had never reported any of the incidents to the Police. Further, the police records reveal that the applicant was also involved in aggressive altercations in August 2013 and November 2012.
There are a number of resultant observations to be made arising from the above. The first is that the Applicant was charged and convicted of the offence of Common assault (dv) T2 under the provisions of section 61 of the Crimes Act 1900 (NSW) which provides:
“Whoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”
It follows that the Police did not prefer a charge which alleged that the victim suffered actual bodily harm and the Magistrate, with the option of imposing a custodial sentence of up to two years imprisonment, chose instead to impose a sentence of a 9 month good behaviour bond.
The Applicant’s partner, who was the victim in this instance, told the Tribunal in her oral evidence that while she had applied for an AVO immediately after the incident (August 2013) she had asked for it to be lifted after the Court case (September 2013) but that the Police had refused this request and another AVO was issued on that date on their initiative. There is no evidence before the Tribunal as to the length of time of the AVO,[14] but the Applicant’s partner believes it was in the order of 12 months.
[14] Section 37 Supplementary Tribunal Documents at [10].
EVIDENCE OF THE APPLICANT
Mr Odesho gave evidence to the Tribunal in which he admitted freely that he had slapped his partner, pulled her hair and otherwise assaulted and detained her following an incident which had taken place on 20 August 2013. He agreed that the Facts Sheet[15] created by the Police Force was correct in its description of the incident and the extent of confrontation leading to the assault.
[15] Section 37 Further Supplementary Tribunal Documents at [26]-[29].
In essence what occurred was: The Applicant and Ms Tufonic had been in a relationship since 2011 but in August 2013 Ms Tufonic found out that the Applicant had been “cheating on her” by talking to another woman on Facebook and receiving intimate messages from her. Ms Tufonic decided to end their relationship and to that end went to the Applicant’s unit (where he was living with his mother and sister) in order to retrieve her laptop computer.
While there, a verbal screaming/shouting match arose between the parties with the Applicant insisting that before Ms Tufonic left the unit she should delete certain images from the laptop. She refused and attempted to leave. The Applicant sought to restrain her by grabbing her by the hair and pulling her back into the living room. She demanded that he free her. He did not. She confronted him. He slapped her in the face. She then left the unit, went downstairs and called the Police. She waited for the arrival of the Police and then accompanied them back to the unit where they questioned the Applicant and arrested him.
Under questioning from the Respondent’s representative he was unable to recall whether the slap in question was “hard” or “gentle”.
At the time, Ms Tufonic told the Police that the Applicant had been violent towards her on previous occasions and that she had not reported such incidents. In her sworn evidence to the Tribunal, Ms Tufonic resiled from this position. She said that there had been instances in the past when each of the parties had been “physical” with each other but that they were only (to use her words) “mucking about” and there was “nothing serious” in such incidents. She said that she only told the Police that there had been previous incidents because she “wanted to get him into more trouble”.
The Applicant agreed that he had assaulted Ms Tufonic in the manner described but he expressed both shame and remorse for his actions, stating that he was not a violent person by nature and that he realised that assaulting anybody, especially women or children was unacceptable behaviour.
When put to him that he had told the Police that: “I just gave her a slap like you’d slap a kid in the face” he agreed that he had said these words but that he was angry at the time and seeking to excuse his behaviour. He told the Tribunal that he regretted saying those words and that they do not reflect his beliefs or behaviour. He said that he spends time with his nieces and nephews and would never countenance violence against them and that, being desirous of having children of his own, he would never hit them.
As to the matter of any previous assaults on Ms Tufonic, the Applicant’s evidence was along the same lines, although he described the previous incidents as arising from time when the couple “were only joking”.
The Applicant gave further evidence that he had been involved in a number of minor scuffles and incidents which had resulted in the Police being called, but in a number of them he was the victim of assaults, or acted violently only in self-defence and in any case none of the reported incidents had ever led to charges being laid against any of the parties involved.[16]
[16] Section 37 Supplementary Tribunal Documents at [8]-[18].
The Applicant was asked about his counselling sessions with Dr Yaser Mohammed and said that he had attended 5 or 6 sessions with the Doctor after referral by his own General Practitioner and on the advice of Legal Aid solicitors who had assisted him in his court appearance. He agreed with the comments of Dr Mohammed that he had been suffering bouts of depression and stress but he claimed that these only occurred as a result of his court appearance. He rejected any suggestion from Dr Mohammed that he held any “negative beliefs regarding woman” (sic).[17]
[17] Letter from Dr Yaser Monhammed, Fairfield District Medical Centre, dated July 2019, Applicant’s Evidence at [Tab 8].
Finally the Applicant confirmed that he was unemployed but received income by way of Carer’s Allowance to look after his mother, who now otherwise lives alone but suffers from high blood pressure and limited mobility following spinal surgery. He attends to her every day and only receives limited support for this from other family members.
EVIDENCE OF MS TUFONIC
Ms Tufonic was the victim of the assault in question and gave evidence which confirmed both the Applicant’s version of events and the Police record. She stated that the slap in question was “hard”.
As noted above she went on to say that she had deliberately exaggerated the extent of any previous incidents involving violence but agreed that the couple had numerous arguments and that there was often a lot of “screaming and shouting” involved.
Also as already noted, Ms Tufonic says that she sought to have the AVO lifted. When it was not she admits that she then resorted to initiating regular calls to the Applicant, in contravention of the conditions of the AVO. She knew this to be breaching the terms of the AVO and putting the Applicant in a potentially vulnerable position, but she persisted with making the calls, which the Applicant answered so that the couple continued to communicate on a regular (perhaps daily) basis notwithstanding.
Ms Tufonic made it abundantly clear to the Tribunal that she was very much in love with the Applicant and that she only wanted the best for him. She said that they had been living together as a couple since 2017 when the Applicant had moved into her home (which she shares with her father). She was at pains to state that the Applicant was remorseful for his behaviour, that she had noticed that he had grown into being a better and more considerate person as a result of his experiences through the courts and that she wanted to get married and have children with him.
She thought that the Applicant had some deeper-seated issues with anger and said these manifest themselves in the way which he often “screamed and shouted in his sleep.” She believes these feelings arose from the Applicant’s childhood experiences in Iraq (about which there is no evidence before the Tribunal) but that in any case, he seemed much better for the treatment provided by Dr Mohammed.
The Tribunal found both the Applicant and Ms Tufonic to be witnesses of credibility. They were forthright in their answers and direct in response to questions. They were sincere and clearly deeply committed to each other.
OTHER EVIDENCE
The Applicant provided character statements from a number of friends, but most of these are of limited (or no) utility to the Tribunal as they are not in statutory declaration form and fail to evidence detailed understandings of the Applicant’s offending behaviour, although they attest to the positive personal qualities of the Applicant. The reference from Mr Bahram Gharib does evidence knowledge of the Applicant’s offending and states that this was a “mistake” on his part which has resulted in him “fully turn(ing) his life around and turn(ing) into a kind, respectful and helpful man.”[18]
[18] Statutory Declaration of Bahram Aziz Gharib, dated 27 June 2019, Applicant’s Evidence.
Of greater utility is the report of Dr Mohammed (a mental health clinician and occupational therapist) which outlines that the Applicant has been receiving counselling from him which have resulted in him “learn(ing) some anger management coping mechanisms”. Dr Mohammed concludes his assessment stating:
“It appears from regular encounters and interaction with client that he is of reasonably normal judgement and insight and currently there is no evidence of violent or anti-social behaviour from him, in particular, those concerning women.”[19]
[19] Letter from Dr Yaser Monhammed, Fairfield District Medical Centre, dated 31 July 2019, Applicant’s Evidence at [Tab 8].
RESPONDENT’S SUBMISSION
The gravamen of the Respondent’s submission is that:
1.The Applicant has been convicted of an offence of domestic violence and that this should be regarded as a serious offence, indeed being in the “high range of seriousness”,[20] to the extent of establishing that the Applicant cannot be regarded as a person of good character;
2.In any event the Applicant has failed to acknowledge the extent and nature of his offence, to accept responsibility for it or to demonstrate an understanding of its gravity;
3.Insufficient time has passed since the offence in question to allow the Tribunal to be satisfied of the Applicant’s good character and that since he has secure permanent residency and can apply again for citizenship in the future, he would not be disadvantaged materially by the Respondent’s decision being upheld; and
4.In addition the Tribunal should take into account both the involvement of the Applicant in other “aggressive altercations”[21] and a number of traffic offences committed by the Applicant.
[20] Section 37 tribunal Documents at [15].
[21] Respondent’s Statement of Facts, Issues and Contentions at [25].
The Respondent also confirmed that in the initial assessment of the application, the Applicant had been found to have met all the requirements outlined in sections (a) to (g) of section 21(2) of the Act.[22]
[22] Section 37 Tribunal Documents at [13]-[14].
CONSIDERATIONS
As a preliminary consideration the Tribunal takes note of what was said by a previous Tribunal in Kakar, another case relating to a citizenship application:
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.”[23]
[23] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14].
Working in reverse order through the Respondent’s submissions, the Tribunal takes note of the following matters.
In relation to the matter of the Applicant’s driving offences: these were laid before the Tribunal by the Respondent in the Section 37 Documents[24] but were not actively pressed as part of the Respondent’s submission. Nevertheless the Tribunal has examined them and noted that they consist of three offences related to disobeying traffic signals or signs and one is a parking offence (school zone). Various fines were levied and there was a brief suspension of a Provisional licence.
[24] Section 37 Supplementary Tribunal Documents at [2]-[4].
The Tribunal has noted that there may well be instances in which an applicant’s driving record may be taken as weighing against them in terms of character assessment where such record indicates a persistent, wilful and dangerous disregard for the road rules and the safety of others[25]. This is not such an incidence and no negative conclusions are drawn in relation to this application from details of traffic offences.
[25] Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347 at [53]-[55]; Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [45].
Similarly, careful reading of the various police reports relating to the “aggressive altercations” noted by the Respondent do not reveal any pattern of aggressive behaviour on the part of the Applicant. Indeed on a number of occasions it was the Applicant who was the victim of the aggressive behaviour in question.[26]
[26] Section 37 Supplementary Tribunal Documents at [9], [13], [14].
In relation to the passage of time since any offences were committed, it has been six years since the assault took place and five years since the expiry of both the AVO and the Bond. In relation to traffic offences, the last of these was in 2014.
The Tribunal has frequently examined the question of the length of time which should have elapsed between the last commission of an offence and the granting of an application for citizenship where issues of “good character” are central. This is a multi-factorial exercise as made clear in Kakar (above).
In numerous cases[27] the Tribunal has attempted to settle on an appropriate length of time which might be accepted as somehow giving a clear indication of the level of credit to be given to an applicant for remaining free from any degree of further offending. It has not been possible to settle on any specific number in this regard, but this Tribunal is very much guided by the formulation in Assafiri that in relation to the elapse of time “How long that will be will depend on all the circumstances of the individual case.”[28]
[27] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35; Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601; Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033; Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608; Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8]; Sui and Minister for Immigration and Citizenship [2008] AATA 1062 at [72].
[28] Assafiri v Minister for Immigration and Border Protection [2014] AATA 35 at [67]
In the circumstances of this case the Tribunal gives credit to the Applicant for his behaviour over the course of the last six years (five post the expiry of the Bond or AVO) in remaining free from any further involvement with the criminal justice system and determines that sufficient time has passed for this behaviour to be taken to his credit.
In terms of taking responsibility for his offending behaviour and acknowledging both the seriousness and inappropriateness of his conduct the Tribunal believes that the Applicant has indeed met these requirements. In the first instance there was no attempt on his part to conceal these offences in his citizenship application, he was open and up-front about them and gave a proper description of them when completing his 1300t Form.[29]
[29] Section 37 Tribunal Documents at [35].
In both his Statutory Declaration and in his oral evidence, the Applicant has been open about admitting his “terrible mistake”.[30] He has not sought to excuse or defend his behaviour or cast responsibility on any other party. He has admitted that his behaviour was wrong. He has expressed remorse and contrition and he has made efforts to rehabilitate himself in terms of his potential anger management issues and his degree of self-control. Progress in this area has been noted by Dr Mohammed in his statement and was clearly attested to by Ms Tufonic in her written statement[31] and her oral evidence.
[30] Applicant’s Statutory Declaration (26 June 2019) at Applicant’s Evidence at [Tab 1].
[31] Ibid at [Tab 2].
From its own observations the Tribunal accepts the Applicant’s claims in this regard.
Any offence of domestic violence must be taken seriously. I made this clear in Mendoza[32] when I wrote:
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.
[32] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48].
There is a considerable line of Tribunal and court authority to this effect. For instance the Tribunal made clear that domestic violence weighs heavily against a person’s character, stating that it should “in no way…be trivialised or downplayed.”[33] and stating that “a conviction of domestic violence gives rise to a presumption that an applicant for citizenship is not a person of good character.”[34]
[33] Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53].
[34] Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [54].
This presumption was repeated in Umer where the Tribunal also stated that an applicant’s conviction for “a domestic violence offence is not consistent with the requirement in the Citizenship Policy that an applicant be not violent and cause no harm to others.”[35] Domestic violence is “fundamentally inconsistent with the standard of behaviour expected by the Australian community”.[36]
[35] Umer and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1630 at [51].
[36] Prasad and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1506 at [32].
As noted above, the Respondent has characterised the Applicant’s behaviour in this instance as falling within “the high range of seriousness”. This derives from a syllogism embedded in the Citizenship Policy via the CIPs.
The CIPs states that a “crime of violence” is a serious crime; that “domestic violence” is an example of a “crime of violence”; hence “domestic violence” must be a “serious crime”.[37]
[37] Section 37 Further Supplementary Documents at [71].
The Tribunal has already noted the status of the Policy and the Instructions which provide important guidance for the Tribunal, but are not absolutely binding upon it, especially in terms of interpreting the exact provisions of the statute.
Domestic violence is a serious crime but, as was admitted by the Respondent, not all acts of domestic violence are of equal seriousness. An act of domestic violence may include murder – all too commonly so, but it may also encompass non-physical (verbal) abuse, emotional or psychological bullying, a push or a slap.
The seriousness must be weighed primarily in terms of its impact, immediate and lasting, upon the victim.
In this instance the victim had her hair pulled, was restrained from leaving a place and suffered a hard slap which left red marks on her face. Although this is utterly unacceptable behaviour, it does not, in the opinion of the Tribunal, land in the category of “the high range of seriousness”. The lower level of seriousness is also reflected both in the charge laid (“not occasioning actual bodily harm”) and the penalty imposed (a good behaviour bond for 9 months).
This was a domestic argument, occasioned by jealousy, which got out of hand, descending from verbal confrontation on the part of both parties, into an act of spur-of-the-moment violence occasioned by a lack of self-control. Nothing about it was premeditated and nothing like it had happened before. Nor indeed, since.
BURDEN OF PROOF
As already noted, section 21(2) of the Act enumerates, from (a) to (h) the qualifications or requirements which must be met for an application for citizenship by conferral to be granted by the Minister.
Subsections (a) to (f) are essentially objective – they are matters of fact ranging from the age of the applicant, their residential status or their passing of the Citizenship test.
Subsection (g) is subjective where there is some doubt about the residential status of the applicant and their attachment to Australia, but at least admits of some objective evidence as being able to determine certain matters (e.g. length of residency) one way or another.
Subsection (h) however is almost entirely subjective. Unlike the provision in s 501 of the Migration Act 1958 which provides for an automatic failure of the test of being of “good character” if a person is sentenced to a term of imprisonment of 12 months or more, under the Citizenship Act the onus lies upon the Applicant to demonstrate that he or she is of good character. This was outlined by Senior Member McCabe (as he then was) in Chen:[38]
[18] The wording of the test is important. It does not require that the Minister form an adverse view of the applicant’s character. The Minister must be positively persuaded that the applicant is of good character. Ms Linacre, for the respondent, said the Minister cannot be satisfied about the applicant’s character if there is evidence which calls that character into question.
[21] Where evidence raises a question in the mind of the decision-maker over the fitness of the applicant, it is incumbent on the applicant to adduce evidence that will enable the Minister (or the Tribunal upon review) to conclude that the person is of good character notwithstanding the questions that were raised. It may not be possible to answer the allegations directly – for example, by comprehensively disproving the allegations – but the decision-maker must be provided with a level of comfort about his or her decision.
[38] Chen v Minister for Immigration [2007] AATA 1815.
Returning to the criteria outlined in Kakar, the Tribunal has already discussed the question of seriousness; it finds in the first instance that the Applicant has not come into any adverse contact with law enforcement since 2013.
A key test of being of good character is to exhibit a clear understanding of the difference between right and wrong. In his Statutory Declaration the Applicant writes: “I realised that I had made a terrible mistake and regrated (sic) it straight away and turned my life around.”[39] From his oral evidence the Tribunal accepts that when the Applicant uses the term “mistakes” he means to convey not some inadvertent slip but rather a more genuine sense of an understanding of wrongness.
[39] Applicant’s Statutory Declaration (26 June 2019) at Applicant’s Evidence at [Tab 1].
From its observations of the Applicant as a witness and under cross-examination by the experienced representative of the Minister, the Tribunal feels a requisite “level of comfort” in accepting his statements at face value and concluding that he does exhibit a clear understanding of right and wrong. In that respect he meets the criteria as outlined both in Irving and in the Citizenship Policy.
Kakar also references the question of rehabilitation. The Applicant has benefitted from counselling by Dr Mohammed; he has clearly established a loving and firm relationship with Ms Tufonic and both of them clearly believe that he has “turned his life around”.
It is of course correct for the Respondent to state that the Applicant would not be immediately disadvantaged by denial of his citizenship at this time – his permanent residency is secure and his ability to reapply uncompromised. However the Tribunal is sympathetic to the submission made by the Applicant that were he simply to wait he would have to go through the whole application processes again and at the end of the day there would be no guarantee of a more favourable outcome. The facts would remain the same, unless he committed further offences – the only difference would be the passage of time and the ageing of the Applicant.
Decisions for the Tribunal in instances such as this are often a matter of balance, of looking at what the Federal Court has described as a “calculus”[40] of competing facts and circumstances. In its calculus, the Tribunal has reached the conclusion that the Applicant is, for the purposes of subsection 21(2)(h) of the Act, a person of good character.
[40] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
DECISION
The decision under review is set aside and the matter remitted to the Respondent with a direction to the effect that the Applicant meets the good character requirements of section 21(2)(h) of the Australian Citizenship Act 2007.
I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...........................[sgd]...........................................
Associate
Dated: 27 September 2019
Date(s) of hearing: 26 September 2019 Applicant: In person Solicitors for the Respondent: Ms Mia Donald, Sparke Helmore Lawyers
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