Palemala Nadzan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 160

Palemala Nadzan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 160 (11 February 2021)

Division:GENERAL DIVISION

File Number:          2019/6024

Re:Logeswaran Palemala Nadzan

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:11 February 2021

Place:Sydney

The decision under review is set aside and remitted to the Minister for reconsideration in accordance with the direction that Mr Logeswaran Palemala Nadzan satisfies the requirement in paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

..............................[sgd]..........................................

Dr L Bygrave, Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – whether applicant is a person of good character – Australian Citizenship Policy Statement – Citizenship Procedural Instruction 15 – failure to disclose – contravention of apprehended violence order – domestic violence – good behaviour bond – where applicant demonstrated genuine remorse and engaged with mental health and support services – decision under review set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24

CASES

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

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

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

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Dr L Bygrave, Member

11 February 2021

INTRODUCTION

1. The applicant, Mr Logeswaran Palemala Nadzan, is 49 years old. He is a citizen of Malaysia and currently holds a subclass BB-155 (Resident Return) permanent visa (BB-155 visa).

2. On 24 August 2017, Mr Palemala Nadzan made an application for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). This application was refused by a delegate of the Minister for Home Affairs (the Minister)[1] on 11 July 2019 on the basis that he did not meet the good character requirement in paragraph 21(2)(h) of the Citizenship Act.

   [1] The relevant Minister is now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3. Mr Palemala Nadzan subsequently applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review.

4. This application was heard by the Tribunal in Sydney on 20 January 2021. Mr Palemala Nadzan had legal representation; he attended the hearing and gave oral evidence by videoconference with the assistance of an interpreter of the Tamil language.

   RELEVANT LEGISLATION

5. Subsection 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Citizenship Act:

   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.

6. Relevant to this application, subsection 21(2) of the Citizenship Act sets out the general eligibility requirements for Australian citizenship as follows:

   (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. [emphasis added]

   Australian Citizenship [Policy Statement] and Citizenship Procedural Instruction 15

7. The Citizenship Act does not define the term ‘good character’. However, guidance can be found in the Australian Citizenship [Policy Statement] (the Citizenship Statement), which from 27 November 2020 replaces the policy guidance previously provided in chapter 11 of the Citizenship Policy.

8. The Citizenship Statement outlines the ‘overarching legislative requirements for the process of becoming an Australian citizen’ and refers to Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) issued on 17 April 2019 with the purpose to ‘identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship’ under the Citizenship Act.[2]

   [2] Australian Citizenship [Policy Statement] and CPI 15 – Assessing Good Character under the Citizenship Act, section 1.

9. Although I am not bound to strictly apply the Citizenship Statement and CPI 15, these are government policies and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[3]

   [3] [1979] AATA 179; (1979) 2 ALD 634.

10. The Citizenship Statement sets out the rights and responsibilities of Australian citizenship, observing that:

    Australian citizenship is a privilege requiring a continuing commitment to Australia. Australian citizenship is a common bond, involving reciprocal rights and obligations…

    Australian citizenship includes the right to:

    ·apply for an Australian passport and re-enter Australia freely;

    ·ask for consular assistance from an Australian consulate while overseas;

    ·vote in federal, state or territory, and local elections;

    ·vote in a Constitutional referendum or plebiscite;

    ·seek election to parliament;

    ·apply for children born overseas to become Australian citizens by descent; and

    ·apply for a job in the Australian Public Service or in the Australian Defence Force…

    The responsibilities of Australian citizenship include obligations to:

    ·obey the laws of Australia;

    ·vote in federal, state or territory, and local elections, and in a Constitutional referendum or plebiscite;

    ·defend Australia should the need arise; and

    ·serve on jury duty if called to do so.[4] [emphasis added]

    [4] Australian Citizenship [Policy Statement], section 3.2.

11. CPI 15 provides the following policy guidance on the interpretation and application of the good character requirement. The decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs is cited as guidance to the definition of good character:

    Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact 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. [5] [emphasis added]

    [5] (1996) 68 FCR 422 at [431]-[432].

12. CPI 15 further states that the phrase ‘enduring moral qualities’ encompasses concepts such as characteristics that have endured over a long period of time, distinguishing right from wrong, and behaving in an ethical manner including conforming to the rules and values of Australian society.[6] This good character requirement necessitates considering an applicant ‘in a holistic way’ with all aspects of their life potentially relevant to deliberation of their character.[7] I can be satisfied an applicant is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout the time the applicant held a visa and their citizenship application process.[8]

    [6] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.3.

    [7] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.3.

    [8] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.3.

13. The role of the character requirement in a citizenship application is explained by Deputy President Breen in Re Fenn and Minister for Immigration and Multicultural Affairs:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.[9]

    [9] [2000] AATA 931 at [8].

14. Community standards, as reflected in Government initiatives, are identified in CPI 15 and relevantly, state that ‘domestic violence… in any form is not acceptable in the Australian community’.[10]

    [10] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.3.

15. CPI 15 also sets out a non-exhaustive list of characteristics of good character. Relevant to this application, a person of good character would:

    ·respect and abide by the law in Australia and other countries;

    ·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example, by concealing criminal convictions; and

    ·not be violent and not cause harm to others through their conduct.

16. Notably, CPI 15 states that application of these principles should be considered in view of the facts of the particular case and ‘should not be applied rigidly or inflexibly’.[11] Further, it is necessary to consider other information relevant to the applicant’s character including their family life, employment, work in the community, the time that has elapsed since their offending, whether they expressed genuine remorse for their past wrong-doing, and any extenuating circumstances relating to their offences. CPI 15 articulates this process as follows:

    Ultimately, a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.[12]

    EVIDENCE

    [11] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.4.

    [12] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.4.

    The applicant’s criminal history

17. Mr Palemala Nadzan’s criminal history is set out as follows in a report from the Australian Criminal Intelligence Commission dated 8 October 2018:

    ·Blacktown Local Court, 25 November 2015: Contravene prohibition/restriction in AVO (Domestic). Result: eight months (section 9) bond.

    ·Parramatta District Court, 10 February 2016: Contravene prohibition/restriction in AVO (Domestic). Result: conviction and sentence confirmed: eight months (section 9) bond commencing 25 November 2015 with AVO to be in effect for three years.[13]

    [13] Exhibit T-T6, page 124.

18. The context of this history is outlined in Court documents that show:

    ·An incident took place on 21 May 2015 and a provisional Apprehended Violence Order (AVO) was placed on Mr Palemala Nadzan. A final AVO was then put in place on 3 June 2015.

    ·Following an incident on 21 November 2015, Mr Palemala Nadzan was found guilty of ‘Contravene prohibition/restriction in AVO (Domestic)’ and sentenced to eight months (section 9) bond.

    ·On appeal to the Parramatta District Court on 10 February 2016, Mr Palemala Nadzan’s original sentence was confirmed with the AVO in effect for three years.

    The applicant’s traffic offences

19. Mr Palemala Nadzan’s driving history records the following offences:

Date	Offence	Penalty
30 September 2007	Exceed speed limit by not more than 15 km/h whilst driving a motor vehicle	$79 fine and six demerit points (double demerit points provisions)[14]
15 October 2007	Exceed speed limit by not more than 15 km/h whilst driving a motor vehicle (school zone)	$132 fine and four demerit points[15]
3 February 2015 – 17 March 2015	Drive with middle range PCA – 1st offence on 3 February 2015	Immediate licence suspension on 3 February 2015 and in Blacktown Local Court on 17 March 2015 found guilty but without proceeding to conviction and sentenced to 18 months good behaviour (section 10(1)(b)) bond to commence on 17 March 2015[16]

[14] Exhibit R1, page 12.

[15] Exhibit R1, page 12.

[16] Exhibit R1, pages 3, 11.

1. While I do not excuse Mr Palemala Nadzan’s traffic offences, I note that these are not included in his criminal record and, consistent with CPI 15, I find these offences have little weight in an assessment of his character.

   The applicant’s evidence

2. Mr Palemala Nadzan filed a statutory declaration dated 16 September 2020 and provided oral evidence to the Tribunal on 20 January 2021. This evidence sets out the following relevant information.

3. Mr Palemala Nadzan was employed as a chef at the Westin Hotel in Singapore from 1994 to 2000. He arrived in Australia in 2000 to assist his uncle with his restaurant and food stall at Glebe Markets after his aunt passed away.

4. In 2003, Mr Palemala Nadzan married Ms ‘A’; she had four children from a previous marriage who he raised ‘as [his] own’.[17] Mr Palemala Nadzan and Ms ‘A’ subsequently had a child together in 2006.

   [17] Exhibit A1, paragraph 3.

5. From 2002, Mr Palemala Nadzan was employed as a chef at the Westin Hotel (Martin Place). He suffered a serious workplace injury to his hand in 2012 and underwent treatment including surgery; he subsequently lost function to the right side of his body and developed chronic regional pain syndrome. Mr Palemala Nadzan became reliant on alcohol to ‘cope with the frustration’ and ‘deal with the pain’.[18]

   [18] Exhibit A1, paragraph 5.

6. Mr Palemala Nadzan attempted to continue employment at the Westin Hotel but was unable to due to the ongoing nature of his injury. He was eventually paid workers compensation in the amount of approximately $400,000.

7. Both in his statutory declaration and his oral evidence to the Tribunal on 20 January 2021, Mr Palemala Nadzan acknowledged his criminal record and driving offences. He described the circumstances surrounding both the AVO being put in place following the incident on 21 May 2015 and the contravention of the AVO on 21 November 2015.

8. Mr Palemala Nadzan explained that he had been drinking alcohol on 21 May 2015. He and his wife began arguing because he felt she was on her ‘phone and laptop too much and was neglecting [their] relationship’, and he was bearing ‘most of the load’ around the house and caring for the children.[19] Ms ‘A’ told Mr Palemala Nadzan she had called the police and he then attended Blacktown police station. Mr Palemala Nadzan stated that he was never ‘violent or physically aggressive’ towards his wife and he did not mean for her to ‘feel frightened or intimidated’.[20]

   [19] Exhibit A1, paragraph 14.

   [20] Exhibit A1, paragraph 17.

9. Following this incident on 21 May 2015, a Provisional AVO was placed on Mr Palemala Nadzan and a Final AVO was then put in place on 3 June 2015. Relevantly, the terms of the Final Order stated (amongst other matters) that Mr Palemala Nadzan must not approach Ms ‘A’ within 12 hours of consuming alcohol.

10. On 21 November 2015, Mr Palemala Nadzan believed Ms ‘A’ and the children were away and would not return home until the following day, and he thought it would be ‘okay’ to have ‘a few drinks’ while he was gardening.[21] Ms ‘A’ and the children then returned home, Mr Palemala Nadzan was ‘confused and panicked’, and he and Ms ‘A’ verbally argued in Tamil.[22] Ms ‘A’ called the police and Mr Palemala Nadzan was arrested for breaching the terms of the AVO. He was in custody for one day before a friend provided the bail money and he was released.

    [21] Exhibit A1, paragraph 19.

    [22] Exhibit A1, paragraph 20.

11. Mr Palemala Nadzan provided extensive evidence about the argument between he and Ms ‘A’ on 21 November 2015 and explained that it related to their finances and the property settlement following their divorce. He stated in his statutory declaration:

    [Ms ‘A’] had hired a solicitor to act for her. [Ms ‘A’] and I had a verbal understanding that I would be allowed to live in the granny flat at our family home and that we would share ownership of the home. [Ms ‘A’]’s lawyer came to visit me and asked me to sign the Property Settlement. I did not have legal advice or representation at the time. My English at the time wasn’t very good and I trusted [Ms ‘A’] so I signed this Property Settlement believing what I had been told. I was also frustrated because my workers compensation money had been used for the house, renovations and car.

    When I received the Consent Orders from the Family Court [dated 25 September 2015 and letter from [Ms A’s] lawyers dated 7 October 2015], I was very upset that the house was to be transferred to [Ms ‘A’]’s name. I was also frustrated as my wife controlled the finances of the marriage and I felt like I had to beg her for money, even for amounts as small as $20, and I was not allowed to send money to my family in Malaysia. Although we had small arguments about this before, I felt like I had been ignored and deceived about the Property Settlement and that led to the larger argument on this night.

    My wife and I argued in Tamil. During this argument, the Police Fact Sheet records that I said something that roughly translates to “if you do anything I’ll get you”, however this is a mistranslation of what I said and was not meant as a threat. I was actually referring to the finances and my belief that my wife had taken all my money and my share in the house against my will. I was trying to say that if she took any more of my money, I would take legal action against her. I believe there was some miscommunication as to what I meant.[23]

    [23] Exhibit A1, paragraphs 21-23.

12. A copy of the Family Court Consent Orders dated 25 September 2015 were filed with the Tribunal by Mr Palemala Nadzan; these confirm that he was to transfer his interest in the family home to his wife, and she would be the beneficial owner of the car.[24]

    [24] Exhibit A1, Annexure F.

13. Since 21 November 2015, Mr Palemala Nadzan has never returned to the family home. He was homeless in 2016; he ‘slept in parks and other public places’ and had no contact with Ms ‘A’ or their children.[25] He was eventually assisted by a stranger to go to Centrelink and the Salvation Army. He then stayed at Foster House, a men’s accommodation service run by the Salvation Army, where he received support and volunteered as a chef and gardener. He was employed in the kitchen at Foster House from July 2018 until he fell and was injured in May 2020. He currently receives the disability support pension for his medical conditions and impairment.

    [25] Exhibit A1, paragraph 26.

14. Mr Palemala Nadzan expressed sincere remorse for his offending. He acknowledged that his behaviour was due to his consumption of alcohol and said that he has participated in programs and has successfully reduced his alcohol intake. He is also fully compliant with medications to manage his mental health. He now has a good relationship with Ms ‘A’ and is in regular contact with their children.

15. At the Tribunal hearing, Mr Palemala Nadzan explained the process of completing his application for Australian citizenship that was lodged on 24 August 2017. Relevantly, Mr Palemala Nadzan stated that he completed the application with the assistance of a case worker at the Salvation Army, who was aware of his criminal record; however, at question 29(a) of the application, ‘No’ was ticked in response to the question ‘Have you been convicted of, or found guilty of, ANY offences overseas or in Australia…’[26] [emphasis in original]. Mr Palemala Nadzan acknowledged this error but said it was unintentional; he also said that he had provided a copy of his National Police Certificate to the Australian Government as part of the process of renewing his BB-155 visa in 2016 and so believed the Government was aware of his criminal record. He filed a copy of this National Police Certificate that is dated 26 July 2016 and stamped ‘AUSTRALIA VISA Received by [illegible] 11.08.2016’.[27]

    [26] Exhibit T-T4, page 95.

    [27] Exhibit A1, Annexure A.

    References in support of the applicant

1. CPI 15 provides limited guidance about the weight to be attributed to character references, noting only that less weight should not be attributed to a character reference ‘merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship’.[28]

   [28] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.12.

2. Mr Palemala Nadzan provided the Tribunal with references to verify his good character. These included two written references by Ms ‘A’ dated 10 February 2016 and 9 September 2020; in the reference on 9 September 2020, she stated they had ‘always had an amicable relationship’ when dealing with their son.[29]

   [29] Exhibit A1, Annexure H.

3. The Tribunal also received a written reference from Mr James Southan (mental health care nurse) dated 17 July 2020, which referred to Mr Palemala Nadzan’s experiences since 2016 and detailed incidents related to his AVO and contravention, marriage breakdown, mental health and psychosocial stress, and homelessness. Mr Southan advised that Mr Palemala Nadzan had engaged well with mental health services for assistance with his depression, alcoholism and chronic regional pain syndrome, and had been fully compliant with care requests including significantly reducing alcohol and taking medications to manage his mental health. Mr Southan described Mr Palemala Nadzan as ‘a person of good character who is open, honest [and] who greatly regrets the breakdown of his marriage and relationship with his family, and his actions when he breached the [AVO] order’.[30]

   [30] Exhibit A2.

4. Further written references were provided by Mr Alberto Dominguez (case manager, Catholic Healthcare) dated 21 August 2020 and Ms Joy Paul (case manager, The Salvation Army) on 9 September 2020. Mr Dominguez referred to Mr Palemala Nadzan’s criminal record and described him as a ‘very kind, quiet and trustworthy person’ who ‘has shown dedication to improving his level of life in all aspects’.[31] Ms Paul wrote that Mr Palemala Nadzan was ‘courteous, polite, loyal and engaging’ and she supported his application for Australian citizenship.[32]

   [31] Exhibit A3.

   [32] Exhibit A4.

   CONSIDERATION

5. The sole issue for determination by the Tribunal is whether Mr Palemala Nadzan satisfies the requirements of good character in paragraph 21(2)(h) of the Citizenship Act.

6. Having regard to the evidence, I am satisfied that Mr Palemala Nadzan contravened the terms of his AVO on 21 November 2015 and did not declare this conviction or his criminal record in his application for Australian citizenship lodged on 24 August 2017.

7. However, as required by the Citizenship Statement and CPI 15, I must weigh all the factors relevant to Mr Palemala Nadzan’s character including his family life, employment, remorse and extenuating circumstances relating to his offence.

8. In this regard, I find that Mr Palemala Nadzan was successfully employed as a chef for more than a decade prior to sustaining an injury at work. He accepted in his evidence to the Tribunal that, due to ongoing pain and frustration with not being able to work due to his injury, he became reliant on alcohol. This, in turn, led to arguments with his wife, the deterioration of their relationship, and their divorce in 2015.

9. I note that the evidence is that, up to Mr Palemala Nadzan’s injury in 2012 and his subsequent reliance on alcohol, he was an engaged husband, stepfather to four children and father to his own biological child.

10. In relation to Mr Palemala Nadzan contravening the terms of his AVO on 21 November 2015, I note the context to the situation is highly relevant. I found Mr Palemala Nadzan a credible and honest witness, and accept his evidence that he believed his wife and children were away until the following day when he consumed alcohol in the garden of his home. I also accept his remorse is genuine, and is further demonstrated by the fact that he never returned to the family home after his arrest by the police on 21 November 2015.

11. The property settlement following the divorce of Mr Palemala Nadzan and Ms ‘A’ also provides perspective to the verbal argument that took place on 21 November 2015. Despite Mr Palemala Nadzan being the principal wage earner and expending his workers compensation payment towards their family home and car, he believed that Ms ‘A’ and her lawyers deceived him into transferring his interest of the house and car to Ms ‘A’. It is understandable that this situation would have been frustrating for Mr Palemala Nadzan.

12. Finally, while domestic violence is never acceptable in the Australian community, I am of the view that Mr Palemala Nadzan’s behaviour shows he participated in verbal arguments and was not violent or physically aggressive towards Ms ‘A’. While verbal arguments can be extremely serious, the sentence received by Mr Palemala Nadzan shows his offending was at the lower end of seriousness.

13. For these reasons, I am satisfied that there are extenuating circumstances and place less weight on the nature of his offence. I also find that Mr Palemala Nadzan has, subsequent to his period of homelessness in 2016, engaged with mental health services to reduce his alcohol intake and take medications. He also participated in volunteer work and employment with the Salvation Army until further injury in 2020.

14. With regard to Mr Palemala Nadzan not declaring his criminal record in his application for Australian citizenship lodged on 24 August 2017, I also accept his explanation. It was evident at the Tribunal hearing that Mr Palemala Nadzan had difficulties with the English language and occasionally required the assistance of an interpreter of the Tamil language. I accept his evidence that he was assisted by another person, who completed the application on his behalf and knew about his criminal offending.  This means that I do not believe that Mr Palemala Nadzan deliberately intended to deceive the Australian Government by concealing his criminal record in his application for Australian citizenship. Indeed, the evidence shows that Mr Palemala Nadzan had provided a copy of his National Police Certificate to the Australian Government in August 2016 when he renewed his visa. For these reasons, I place less weight on this incident.

15. Weighing all the available evidence, I am satisfied that the applicant is of good character as required by the Citizenship Act, the Citizenship Statement and CPI 15.

    CONCLUSION

16. In considering all the relevant circumstances, I am satisfied Mr Palemala Nadzan meets the requirements of paragraph 21(2)(h) of the Citizenship Act.

    DECISION

17. The decision under review is set aside and remitted to the Minister for reconsideration in accordance with the direction that Mr Palemala Nadzan satisfies the requirement in paragraph 21(2)(h) of the Citizenship Act.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated: 11 February 2021

Date of hearing:	20 January 2021
Solicitors for the Applicant:	Ms L McMahon, Salvos Legal
Solicitors for the Respondent:	Ms L Hargrave, Clayton Utz