Okafor v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 936
•18 October 2023
FEDERAL COURT OF AUSTRALIA
Okafor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 936
Appeal from: Okafor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 4347 File number: NSD 32 of 2023 Judgment of: NICHOLAS J Date of judgment: 18 October 2023 Catchwords: ADMINISTRATIVE LAW – Appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from decision of Administrative Appeals Tribunal against Delegate’s decision refusing to grant the applicant’s application for citizenship – whether the Tribunal erred by having regard to convictions that the applicant contended were spent – whether applicant a person of good character – whether Tribunal erred in referring to “the presumption” that an applicant for citizenship who has been convicted of domestic violence is not a person of good character – whether error material to Tribunal’s decision – whether Tribunal’s decision affected by jurisdictional error
Held: no jurisdictional error – appeal dismissed
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Australian Citizenship Act 2007 (Cth) s 21(2)(h)
Crimes Act 1914 (Cth) ss 85ZM(2)(b), 85ZV, 85ZZH
Migration Act 1958 (Cth) s 501(2)
Crime Records Act 1991 (NSW)
Cases cited: Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Prasad and Minister for Immigration and Ethnic Affairs [1994] AAT 326
Sharma and Minister for Immigration and Border Protection [2015] AATA 608
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 61 Date of hearing: 18 July 2023 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms S Lloyd of HWL Ebsworth Lawyers Counsel for the Second Respondent: The second respondent submitted save as to cost ORDERS
NSD 32 of 2023 BETWEEN: KINGSLEY OKAFOR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
18 OCTOBER 2023
THE COURT ORDERS THAT:
1.The notice of appeal dated 4 January 2023 be dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
BACKGROUND
Before me is an appeal brought by the applicant from a decision of the second respondent (“the Tribunal”) affirming a decision of a delegate of the first respondent (“the Minister”) to refuse to approve the applicant becoming an Australian citizen by conferral, on the basis that the applicant failed to satisfy the good character test in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”). The appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).
The applicant is a citizen of Nigeria who arrived in Australia on 28 October 2002 as a holder of a Skilled – Independent Migrant (Class BN) (Subclass 136) visa (“the Permanent Skills Visa”) which was granted on 22 June 2002.
On 9 November 2009 the Permanent Skills Visa was cancelled under s 501(2) of the Migration Act 1958 (Cth) (“the Migration Act”) in light of the applicant’s convictions for a number of offences. On 29 January 2010 the decision to cancel the Permanent Skills Visa was set aside by the Tribunal. An application by the Minister to have that decision reviewed on a question of law was unsuccessful. On 24 January 2011, and again on 25 May 2016, the applicant was granted a Resident Return (Class BB) (Subclass 155) visa (“the RR Visa”).
On 2 July 2019 the applicant made an application for Australian citizenship by conferral. On 11 August 2021, the Department of Home Affairs (“the Department”) wrote to the applicant to invite him to comment on adverse information relating to the following three criminal convictions:
(a)destroy or damage property (DV), dated 1 June 2017, for which the applicant was fined $1,000;
(b)stalk/intimidate intend fear physical etc harm (domestic), dated 1 June 2017 for which he was placed on a 12 month bond; and
(c)import prohibited import (cocaine) (2 charges) and attempt to possess prohibited import (cocaine), dated 25 June 2004, for which he was sentenced to ten years of imprisonment dating from 14 August 2003 with a non-parole period of six and a half years.
The Department also invited the applicant to comment as to why he had failed to disclose such offences on his incoming passenger card when he entered Australia on 25 April 2021 and 22 February 2020.
In his response the applicant contended that the criminal convictions were “spent convictions” and therefore not relevant. He also contended that they had already been considered in the context of the earlier application for review in which the Tribunal set aside the cancellation of the Permanent Skills Visa.
On 13 September 2021 the delegate refused to approve the applicant’s application for Australian citizenship on the basis that he failed to satisfy the good character requirement in s 21(2)(h) of the Citizenship Act. On 18 September 2021 the applicant lodged with the Tribunal an application for review of the delegate’s decision.
THE RELEVANT STATUTORY PROVISIONS
Section 21 of the Citizenship Act is concerned with applications and eligibility for citizenship. A person is eligible to become an Australian citizen if the Minister is satisfied of various matters specified in subsec 2. These include that the applicant “is of good character at the time of the Minister’s decision on the application” (see subpara (h)).
The relevant provisions of the Crimes Act 1914 (Cth) (“the Crimes Act”) are in Part VIIC.
Section 85ZM(2)(b) of the Crimes Act relevantly provides that a person’s conviction of an offence is spent if the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended, the waiting period being the period of ten years beginning on the day on which the person was convicted of the offence.
Section 85ZV of the Crimes Act provides that, subject to the exclusions of Division 6 of the Crime Act, if a person’s conviction of a State offence is spent, the person is not required to disclose to any Commonwealth authority, for any purpose, the fact that they have been charged with, or convicted of, the offences the subject of the spent convictions.
However, s 85ZZH of the Crimes Act contains an exclusion to the earlier provision, namely that the provisions regarding State and Commonwealth spent convictions do not apply to a person who makes a decision under the Citizenship Act; or to disclosure of information to the Tribunal; or to the taking into account of information by such a person or the Tribunal.
THE TRIBUNAL’S DECISION
The Tribunal’s decision is dated 14 December 2022. The Tribunal’s reasons record that the hearing took place in Sydney on 7 July 2022, that the applicant attended the hearing in person and was self-represented. He was assisted by an interpreter and gave oral evidence and was cross-examined.
The Tribunal found that the applicant was not a person of good character for the purpose of s 21(2)(h) of the Citizenship Act, because, most relevantly:
(a)the passage of time was insufficient to demonstrate that he had enduring moral qualities of good character, taking into account the seriousness of his drug offences;
(b)there was a presumption that the applicant was not of good character, in circumstances where he had been convicted of domestic violence offences; and
(c)there was no compelling evidence or persuasive reasons to negate the above presumption, in circumstances where:
(i)the applicant had not accepted responsibility or demonstrated remorse for his criminal offending, as demonstrated by him describing one of his domestic violence offences as being an “innocuous ‘battle of the sexes’”, denying property damage and declining to comment on his offences;
(ii)the Tribunal could not be satisfied that the applicant appreciated that his criminal behaviour had caused harm, including damage to property;
(iii)the applicant had shown a pattern of violent behaviour;
(iv)there was very little evidence before the Tribunal to support a positive conclusion about the applicant’s character.
The Tribunal addressed the applicant’s contention that his convictions were “spent convictions” and therefore not relevant. It found that:
(a)the applicant’s drug offences were not “spent” given the sentence imposed (i.e. more than the threshold of 30 months imprisonment); and
(b)in any event, applications for Australian Citizenship are expressly excluded from the Commonwealth legislation governing spent convictions.
The Tribunal also dismissed the applicant’s contention that his criminal record had already been considered in the context of the Tribunal’s decision concerning the Permanent Skills Visa.
The Tribunal referred to s 21(2)(h) of the Citizenship Act, noting that the term “good character” is not defined in the Citizenship Act, but the Full Court of the Federal Court had noted that Parliament intended the term to be used in a broad way. The Tribunal then referred to the Australian Citizenship Policy Statement (“the Policy Statement”) issued on 27 November 2020 and the Revised Citizenship Procedural Instructions (“the CPIs”) issued on 26 February 2021 (current version dated 14 August 2022) guiding decision-makers exercising powers and discharging functions under the Citizenship Act. The Tribunal referred in detail to para 3.1, 3.3, 4, 5, 12, 12.2, 14, 14.1 and 14.2 of the CPI 15 which are concerned with the good character requirement.
It is apparent that the Tribunal did not regard the Policy Statement and CPIs as anything other than documents which should be given due and proper consideration and weight and also noted that CPI 15 stated that decision-makers “should not apply policy inflexibly and should consider the merits of each individual case”.
After referring to the Tribunal’s decision in Prasad and Minister for Immigration and Ethnic Affairs [1994] AAT 326 at [7], the Tribunal went on to note that the sole issue for determination by the Tribunal was whether the applicant satisfied the good character requirement of s 21(2)(h) of the Citizenship Act.
The Tribunal then referred to the applicant’s evidence concerning his personal circumstances and his three children, one of whom, born in January 2022, lives in Nigeria.
The Tribunal then referred to the applicant’s drug offences and the convictions recorded on 14 August 2003 for importing a prohibited import (cocaine) and attempting to possess a prohibited import (cocaine). The Tribunal noted the maximum penalty for each of those offences includes imprisonment for up to 25 years and that the applicant was sentenced to a total of ten years imprisonment with a non-parole period of six and a half years, expiring on 13 February 2010.
The Tribunal then referred to a number of domestic violence offences for which the applicant was convicted on 1 June 2017. The first charge was concerned with damage to his partner’s property, for which he was fined $1,000 and the second, relating to the stalking or intimidation of his partner, saw him given a good behaviour bond of 12 months duration.
The Tribunal questioned the applicant in relation to the domestic violence offences and noted that, in answer to the Tribunal’s questions, he denied that he caused damage depicted in a photograph shown to him. He agreed that an Apprehended Domestic Violence Order (“ADVO”) was applied for by police as a result of this incident and he did not contest the application for the ADVO. The ADVO was granted on 1 June 2017 and expired the following year. The Tribunal referred to various other charges brought against the applicant which did not result in a conviction. Documents before the Tribunal indicated that in July 2014 the applicant was alleged to have punched his partner in the nose with a closed fist (amongst other acts of violence) in the presence of their child. The charges against the applicant were dropped at his wife’s request in August 2014. According to the Tribunal’s reasons, it asked the applicant whether he wished to comment on these allegations and he declined to do so.
The Tribunal’s reasons also refer to a number of driving offences.
The Tribunal also noted that the applicant failed to declare his criminal convictions on his incoming passenger cards when returning to Australia on 22 February 2020 and 25 April 2021. In his evidence to the Tribunal he maintained that he was not required to disclose the convictions because they were “spent convictions”.
The Tribunal referred to the submissions made by the applicant to the Tribunal which noted that the submissions suggested that he considered he had a right to Australian citizenship. The Tribunal noted that the applicant also contended that his criminal record had already been considered by the Tribunal in connection with its 2010 decision to set aside the decision to cancel the Permanent Skills Visa.
The Tribunal then referred to various decisions of the Full Federal Court concerning the good character test. In particular, the Tribunal referred to the observations of Lee J and also Davies J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422.
The Tribunal then turned to consider whether the applicant was of good character. It noted that 18 years had passed since the applicant was convicted of the drug offences. That said, it noted that his convictions were for serious offences. It also rejected the applicant’s contention that they were spent convictions and therefore irrelevant to the question whether or not he was of good character. The Tribunal said at [62]-[65]:
62.Under Commonwealth and New South Wales law, after 10 years convictions are ‘spent’ if the person was not sentenced to imprisonment for the offence for more than 30 months. In the Tribunal’s decision in KKHS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship), Senior Member Fairall described the effect of the relevant provisions in Commonwealth legislation:
Such provisions are intended to limit the effect of a person’s conviction, and to allow a person to recover free from the taint of conviction after a lengthy period of good behaviour. One important aspect of the federal scheme is that in exercising statutory powers, ordinarily a decision-maker “must not take account of the fact that the person was charged with, or convicted of, the offence”. Importantly, for present purposes, citizenship applications are expressly excluded from the scope of the legislation. Although for many purposes the applicant’s conviction is spent under federal law, he was obliged to disclose it in his application for citizenship, and the decision-maker is required to consider it in determining whether he is of good character.
63.As the Tribunal observed in this passage, the ‘spent convictions’ provisions do not apply to a person who makes a decision under the Act; or to disclosure of information to the Tribunal; or to the taking into account of information by such a person or the Tribunal.
64.The Applicant’s convictions for the importation of cocaine were under Commonwealth legislation. He was sentenced to imprisonment for 10 years, which well exceeds the 30 month threshold. Accordingly, these convictions are not ‘spent’. Irrespective of whether the convictions are spent, they may be taken into account by the Tribunal in this review application as it involves a review of a decision made under the Act.
65.Based on the evidence before it, the Tribunal finds that in considering the seriousness of the drug offences for which the Applicant was convicted, the passage of time is insufficient to demonstrate that the Applicant has the ‘enduring moral qualities’ characteristic of ‘good character’. In making this finding, the Tribunal has had regard to the Applicant’s attempt in his submissions to dismiss these offences as now being irrelevant to an assessment of his character.
(footnotes omitted)
The Tribunal did not consider the passage of time was sufficient to demonstrate that the applicant was of good character.
The Tribunal then turned to the domestic violence convictions. It considered that these were serious offences involving vulnerable persons over whom the applicant exercised power and control. The Tribunal referred to a number of previous Tribunal decisions in which the matter of domestic violence offences had been raised which noted that they were very serious matters and, in the words of Deputy President Constance, in Sharma and Minister for Immigration and Border Protection [2015] AATA 608, are “fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character”.
The Tribunal said at [67]-[70]:
67.Applicants for citizenship who have been convicted of domestic violence offences face a high bar in establishing that they are a person of ‘good character’. In Sharma and Minister for Immigration and Border Protection [[2015] AATA 608 at [37]], Deputy President Constance said that domestic violence is conduct that is ‘fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.’
68.Senior Member Sosso (as he then was) considered the seriousness of domestic violence offences in Ahori and Minister for Immigration and Border Protection, where he stated [[2017] AATA 601 at [53]-[54]]:
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… 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…
69.This Tribunal adopted this approach in Umer and Minister for Immigration and Border Protection [[2018] AATA 1630] and Belhake and Minister for Home Affairs (Citizenship) [[2019] AATA 4472] namely, that there is a presumption that a person is not of good character in circumstances where the applicant for citizenship has been convicted of a domestic violence offence, and this presumption is only negated in the face of compelling evidence and persuasive reasons which support a contrary finding. This approach does not, as Senior Member Sosso stated, allow the Tribunal to automatically reach a conclusion that an applicant is not of good character purely on the basis of a conviction for domestic violence – it must consider and evaluate all the evidence presented.
70.The Tribunal adopts this approach in this review and, in the paragraphs which follow, considers whether there is compelling evidence and persuasive reasons to support a finding that the presumption that the Applicant is not of good character is negated.
The Tribunal noted the applicant had not taken responsibility for his criminal offending. In this regard, it noted his response to the Tribunal’s questions to which I have previously referred, his failure to express any remorse for his offending, and his assertion that it was of no consequence to an assessment of his character. The Tribunal found that the evidence before it did not negate the presumption that the applicant was not a person of “good character”.
With regard to the length of time elapsed since the applicant’s convictions, the Tribunal noted that the domestic violence convictions were recorded in June 2017, arising out of an incident that occurred in September 2016 and that more than six years had passed since the applicant committed those offences. It noted that he was sentenced to a 12 month good behaviour bond which expired some four and a half years earlier.
The Tribunal stated that it did not consider that sufficient time had elapsed for it to be satisfied that the domestic violence offences committed by the applicant were out of character. It also relied on the evidence indicating that the applicant was charged with another domestic violence offence in July 2014 when he is alleged to have assaulted his partner, causing bodily harm. The Tribunal noted that although the applicant’s violent conduct did not result in a criminal conviction, it indicated a pattern of behaviour that was repeated in 2016 leading to his conviction in June 2017 for the domestic violence offences. The Tribunal noted that although the applicant denied he was responsible for those offences despite having been convicted of them, he refused to comment on the incident that led to the laying of charges against him in July 2014.
On the basis of the evidence to which it referred, the Tribunal said that it could not be satisfied that the applicant had demonstrated the “enduring moral qualities” associated with good character. The Tribunal also considered that the applicant’s attitude to the various driving offences he committed between 2004 and 2021 (around 20 of them) were down played by him and that he was apparently unwilling to appreciate that his behaviour put other road users at risk of serious harm.
Ultimately, the Tribunal considered that there was very little evidence before it to support a positive finding about the applicant’s character. It noted there was no evidence to corroborate the applicant’s evidence that he was providing financial support to his children and noted that he did not provide any character references to support his assertion of good character.
Regarding the applicant’s contention that his criminal record had already been considered by the Tribunal in its 2010 decision, the Tribunal considered para 5 of CPI 15 which relevantly provides the decision not to cancel a visa on character grounds does not bind a decision-maker considering a citizenship application. The Tribunal said that, in accordance with this guidance, it had given fresh consideration to the character issues relevant to the applicant’s citizenship application and reached the conclusion that he was not of good character. For those reasons, the Tribunal affirmed the delegate’s decision.
THE APPEAL
The applicant currently resides in Nigeria. He appeared at the hearing via video link. He did not require the assistance of interpreter. He was not legally represented which is evident from the terms of his notice of appeal and his written submissions. Broadly speaking, the applicant’s notice of appeal seeks to set aside the Tribunal’s decision on the basis that the convictions to which it referred in his reasons were spent and not relevant to his character. He also contends that the Tribunal was influenced by the delegate’s decision. He further contends that he has a right to citizenship on account of him having been a permanent resident living in Australia before the Citizenship Act was amended in 2007. The notice of appeal does not specify any question of law as such.
The applicant made various submissions to the following effect:
(1)the Tribunal erred by finding that he was not of good character in circumstances where his offending was not for serious offences and did not occur immediately prior to or during the period of his citizenship application;
(2)there is no zero tolerance policy for individuals convicted of domestic violence offences which bars him from becoming an Australian citizen;
(3)any act of damaging property did not occur and should not have been taken into account by the Tribunal;
(4)the Tribunal misconstrued or failed to have regard to the Crime Records Act 1991 (NSW) under which his offences are “spent” convictions; and
(5)he maintains the rights and privileges of ordinary Australian citizens and has a right to become a citizen.
As to submission (1), it was for the applicant to satisfy the Tribunal that he was a person of good character. The applicant’s contention that the drug and domestic violence offences in respect of which he was convicted were not serious offences cannot be accepted. The Tribunal considered that they were very serious and that conclusion was plainly open to the Tribunal.
As to submission (2), the Tribunal did not approach the application on the basis that the applicant’s conviction for domestic violence offences was fatal to his application for citizenship. However, it considered that these offences were serious and that they weighed heavily against it being satisfied that the applicant was a person of good character.
With regard to submission (3), the Tribunal did not accept the applicant’s contention that he did not damage property. That is not surprising given that the applicant was convicted for “destroy and damage” property and yet declined to discuss the offence with the Tribunal. It regarded this as evidence of a lack of remorse. The Tribunal said at [71]-[72]:
71.The evidence before the Tribunal is that the Applicant has not taken responsibility for his criminal offending. When asked about the incident in September 2016 which resulted in him being convicted of two domestic violence offences in June 2017, he described it as him and his wife engaging in an innocuous ‘battle of the sexes’. He denied that he caused the extensive damage to property that is depicted in the photos of SC’s kitchen that are before the Tribunal. He told the Tribunal that he did not wish to talk about these offences because they are ‘not even relevant’. The Applicant has not expressed remorse for his criminal offending, and asserted it to be of no consequence to an assessment of his character.
72.On the basis of the evidence before it, the Tribunal cannot be satisfied that the Applicant has taken responsibility for his offending nor that he appreciates that his criminal behaviour caused harm, including damage to property. Accordingly, the Tribunal finds that the evidence before it does not negate the presumption that an applicant for citizenship who has been convicted of domestic violence is not a person of ‘good character’.
The last sentence in [72] which refers to “the presumption” raises an issue that was not the subject of any submission at the hearing of the appeal, but which was subsequently considered in written submissions that the parties were given leave to file.
Submission (4) reflects the applicant’s misunderstanding of the relevant statutory provisions as they apply in the context of a decision in relation to an application for citizenship. The point was dealt with by the Tribunal at [62]-[64] as set out above. The applicant has not identified any error in the Tribunal’s reasoning in relation to the matter of spent convictions nor can I discern any error.
Submission (5) was not developed by the applicant in any meaningful way. Plainly, the applicant believes that the Tribunal should have granted his application for citizenship because he had lived in Australia since October 2002 and that he had a wife and children here. These are matters of which the Tribunal was aware. Ultimately, however, the Tribunal could only make a decision in the applicant’s favour if it was satisfied that he is a person of good character. It was not satisfied that he is a person of good character.
The Tribunal referred to the decision in Ahori and Minister for Immigration and Border Protection [2017] AATA 601 (“Ahori”) in support of the proposition that there is a presumption that a person who has been convicted of a domestic violence offence is not of good character and that “… this presumption is only negated in the face of compelling evidence and persuasive reasons that would support a contrary finding”. The Tribunal then asked itself at [70] of its reasons whether there were compelling reasons to find that the presumption that the applicant was not of good character was negated.
The Tribunal characterised the domestic violence offences as serious. That is a finding that was open to the Tribunal. However, there is nothing in the relevant legislation or the CPIs which supports the view that there is a presumption that a person who has been convicted of a domestic violence offence is not of good character.
The fact that a person has been convicted of a domestic violence offence may weigh heavily, perhaps very heavily, against a conclusion that a person is of good character. This is because the victim of such offences are typically vulnerable persons and the perpetrator is in a position of trust and power vis-à-vis the victim. But it is wrong in law to speak of a presumption (whether legal or evidentiary) that must be negated. What the Tribunal is required to do is weigh up the totality of the material before giving it such weight to the various elements, including the relevant convictions, as it considers appropriate. A conviction for a domestic violence offence may constitute powerful evidence of bad character. All will depend on the circumstances and the Tribunal’s evaluation of the material before it.
SUPPLEMENTARY SUBMISSIONS
The hearing of the appeal took place on 18 July 2023. On 10 August 2023 I requested that the parties provide written submissions in relation to the following questions:
(a)Does the analysis in the Tribunal’s reasons at [68]-[70] and, in particular, its statement regarding the existence of a presumption, reveal an error of law?
(b)Assuming those paragraphs of the Tribunal’s reasons do disclose an error of law, was the error of law material and what orders should be made?
The Minister filed written submissions addressing both questions. The applicant also filed a submission. The applicant’s submissions did not address either question.
The Minister submitted that the Tribunal did not err in law in the present case because it recognised at [69] of its reasons that it remained necessary for the Tribunal to consider and evaluate all of the evidence for the purposes of determining whether or not the applicant was a person of good character. It submitted that the reference in Ahori to a “presumption” was loose language that was intended to indicate no more than that domestic violence is often very serious, and that in most cases a conviction for such an offence would result in conclusion that the person was not of good character. Understood in that way, the Minister submitted, there was no error made by the Tribunal.
The Minister further submitted that on a proper analysis of the Tribunal’s reasons, the Tribunal did not treat the applicant’s conviction for a domestic violence offence as a true presumption against it being satisfied that he was not of good character. In this regard, the Minister submitted:
(a)First, the Tribunal accurately set out the relevant legislation, policy and supporting authorities at [12]-[29] and [55]-[60]. It referred to and extracted relevant parts of the Revised Citizenship Procedural Instructions (CPI), which it properly recognised as not binding it, but that it “should be given due and proper consideration and weight unless there are cogent reasons not to do so” (at [16]). The Tribunal also referred (at [24]) to paragraph 12.1 of the CPI which referred to a domestic violence offence as an example of a “serious” offence and (at [26]-[28]) to paragraph 14 of the CPI in relation to “weighing” offences;
(b)Secondly, the Tribunal outlined that “domestic violence offences are serious offences involving, by definition, vulnerable persons over whom the offender exercises power and control” with reference to paragraph 4 of CPI that an applicant for citizenship not be violent and not cause harm to others and the Australian community’s zero tolerance for crimes of domestic violence ([66]);
(c)Thirdly, the Tribunal found that where applicants for citizenship who have been convicted of domestic violence offences, this will “usually weigh heavily against an individual being of good character” ([67]);
(d)Fourthly, despite its reference to Ahori, the Tribunal proceeded to consider all of the evidence before it in relation to domestic violence, including: that the Applicant had not taken responsibility for his convictions of domestic violence; the length of time that had elapsed since his convictions; and the other domestic violence charges that was laid in July 2014 ([71]-[79]).
Despite what the Minister characterised as some looseness in language in the Tribunal’s reasons, the Minister submitted that the Tribunal approached the question whether it was satisfied that the applicant was a person of good character appropriately by having regard to all relevant circumstances. The Minister submitted that this was the approach ultimately taken in a Ahori and by the Tribunal in the present case.
The Minister further submitted that in the event that the Court concluded that the Tribunal erred, the error was immaterial in that there is no realistic possibility the outcome of the Tribunal’s review of the delegate’s decision could have been different had the error not occurred. The Minister relied on the judgment of the plurality of the High Court in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [38]-[39]:
[38]The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred — as distinct from what would have occurred — had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.
[39]Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
(footnotes omitted, original emphasis.)
The Minister submitted that the Tribunal had regard to all relevant circumstances in deciding whether it was satisfied that the applicant was a person of good character and that, notwithstanding its reference to “the presumption that an applicant for citizenship who has been convicted of domestic violence is not a person of good character”, on the Tribunal’s findings there is no realistic possibility that the Tribunal could have been satisfied the applicant was a person of good character.
CONSIDERATION
Senior Member Sosso said in Ahori:
[53]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.
[54]The fact that the Applicant breached the Protection Order of itself is sufficiently serious to make a prima facie finding of lack of good character. 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.
[55]That said, the test of good character enunciated by Lee J [in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422] is comprehensive and not unilateral. The Tribunal would be in error if it automatically reached a conclusion based purely on a conviction for domestic violence, or other serious offence, without considering and evaluating all the evidence presented.
When the reasons in Ahori are read as a whole, it is not clear that Senior Member Sosso was intending to suggest that there is any legal or evidentiary presumption that a person convicted of a domestic violence offence is not a person of good character. I think he was using the term presumption in a different sense. That said, the reference to a presumption in Ahori is not helpful and is open to being misunderstood. There is no presumption in the legal sense arising from a conviction for a domestic violence offence.
I agree with the Minister’s submission that the Tribunal did not weigh the material in relation to the applicant’s good character against any presumption. By this I mean the Tribunal considered all the material before it including the domestic violence offences and what it found was the applicant’s failure to accept responsibility or to express remorse. The Tribunal found that there was very little evidence before it which supported a positive conclusion about the applicant’s character and that he did not provide any other evidence (for example, character references) to support his assertion that he was a person of good character. The Tribunal’s lack of satisfaction with regard to the applicant’s good character was not affected by the application of any presumption of fact or law.
In all the circumstances, I do not think the Tribunal’s erroneous reference to a presumption that an applicant for citizenship who has been convicted of domestic violence is not a person of good character had any effect on the outcome of the review. The Tribunal did not determine the question of whether it was satisfied that the applicant was a person of good character on the basis of any legal or evidentiary presumption.
I am not persuaded that what might appear to be a legal error made by the Tribunal in referring to the existence of a presumption was material to the outcome of the review. In particular, I am not persuaded that there was any realistic prospect that the decision of the Tribunal would have been any different had it not made the postulated error.
DISPOSITION
The applicant has not established that the Tribunal’s decision was affected by jurisdictional error. It follows that the appeal must be dismissed. The applicant must pay the first respondent’s costs.
Orders accordingly.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 18 October 2023
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