Prasad v Minister for Immigration and Border Protection - [2017] AATA 1506

Prasad and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1506 (15 September 2017)
Division:GENERAL DIVISION
File Number(s): 2017/1145
Re:Ravin Prasad
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:15 September 2017
Place:Sydney

The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 28 November 2016 to refuse Mr Prasad’s application for Australian citizenship is affirmed.
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J W Constance
Deputy President
CATCHWORDS
CITIZENSHIP – citizenship by conferral – whether applicant of good character – whether has enduring moral qualities – whether will respect and abide by Australian laws – whether truthful and does not practise deception – assault – domestic violence – traffic offences – false statement in citizenship application – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21(2), 24
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016
REASONS FOR DECISION
Deputy President J W Constance
15 September 2017
INTRODUCTION

Mr Prasad applied for Australian citizenship by conferral on 28 March 2016. On 28 November 2016, a delegate of the Minister refused the application on the basis that he had not established that he was of good character at that time. Mr Prasad has applied to this Tribunal to review of the delegate’s decision.
For the reasons which follow the decision under review will be affirmed.
BACKGROUND
Mr Prasad was born in Fiji and is a citizen of that country.[1] He is 40 years old. He migrated to Australia in February 2009 and currently holds a subclass 155 (permanent) visa. He is married and has a 13 year old son with his wife.
[1] Exhibit R1 p.98.
Conviction of common assault (domestic violence)
On 6 April 2013 Mr Prasad was charged with the offence of common assault (domestic violence) upon his wife.
The Police Fact Sheet sets out the following:[2]
The accused in this matter is Ravin PRASAD, identified by the victim……..as pushing her to the floor. The assault was witnessed by the accused and victim’s son,…….who is eight years old. The victim and accused are married. They have one son, who is eight years old, and they all reside at the same location. On Saturday 6th April 2013 the accused and the victim engaged in numerous verbal arguments throughout the day regarding food, chores, money and property. About 1pm the same day the accused became angry at the victim over his Subway sandwich which she brought home for him. The accused threw the sandwich at her stating, “There’s no meat.” The victim pulled the meat out of the sandwich and threw it at him stating there was meat. About 4.30pm the same day a further argument ensued regarding money and the victim’s excessive spending. The victim walked into the main bedroom and the accused followed. The accused pushed the victim with both his hands. His hands connected with her shoulders causing her to fall backwards. The victim landed, on the floor on her left side, her head hitting a near by washing basket. The victim felt pain down her left side of her neck and her back. The accused left the room. The assault was witness by the victim's son who immediately called Triple 0 for an ambulance. Police attended the location and saw the victim sitting on a bed. She was crying and walling and rubbing her neck. When asked if she was alright the victim replied, “He pushed me and I feel to the floor and hit my head...It hurts my neck and back.” The victim was unable to sit or walk comfortably and as a result was taken to hospital for treatment. The accused, who was still at the location, was arrested and cautioned. The accused was conveyed to Mt Druitt Police Station where he was introduced to the Custody Manager and informed of his rights in accordance with Part 9 of the Law Enforcement Powers and Responsibilities Act. The accused was interviewed electronically where he made full admissions to assaulting the victim. When asked what happened the accused stated, “She made a situation where I pushed her.” The accused further stated that “she come to my face” and was “aggressive” and “making fun” of the accused. As a result the accused “pushed her”. An AVO was applied for and served on the accused whilst in custody.
I am satisfied that the above is an accurate statement of the events which gave rise to Mr Prasad’s conviction. It was not challenged by Mr Prasad when he pleaded guilty in the Local Court.[3]
[2] Exhibit R2 p.21.
[3] Exhibit R1 pp.123-125.
On 15 April 2013 Mr Prasad pleaded guilty to the charge and was convicted. He was fined $700 and subjected to a 12 month apprehended violence order.[4] This order expired on 15 April 2014.
[4] Exhibit R1 pp.123-125.
Traffic offences
In May 2012 Mr Prasad was issued with a traffic infringement notice for exceeding the speed limit by more than 20 km/h.[5]
[5] Exhibit R2 p.22.
Mr Prasad was issued with another traffic infringement notice in March 2014 for disobeying a “no left turn” sign.[6]
[6] Exhibit R2 pp.20-21.
A third notice was issued to Mr Prasad in August 2016, on this occasion for exceeding the speed limit by more than 20 km/h.[7]
[7] Exhibit R2 p.19.
False statement in Application for Australian Citizenship
In his application for citizenship lodged on 4 April 2016 Mr Prasad answered “No” to the following question:
Have you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any ’spent’ convictions)? [8]
[8] Exhibit R1 p.106.
As part of his application Mr Prasad signed a declaration that “the information I have supplied in this form is complete, truthful and correct in every detail.” [9]
[9] Exhibit R1 p.109.
ISSUE FOR DETERMINATION
The issue before me is whether at the time of my decision Mr Prasad is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).
LEGISLATION
Applications for conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth). Section 24 of the Act provides:
(1) If a person makes an application under section 21, the Minister must, by
writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen
unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Section 21(2) of the Act establishes the requirements for eligibility of the grant of citizenship. It provides in part:
(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.
This is the only subsection that is in issue in the present application. As the Tribunal stands in the shoes of the decision-maker these requirements of the law are applicable to the decision that I must make.
CITIZENSHIP POLICY
The Citizenship Policy has been adopted by the Minister to guide those making decisions under the Act. The purpose of Chapter 11 is to “provide guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”.
The Citizenship Policy reflects government policy and is not binding on the Tribunal. However the Tribunal should apply the Policy unless there are “cogent reasons to the contrary”.[10] I am satisfied in this matter that there are no reasons why I should not apply it.
[10] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634, 645.
Chapter 11 provides in part:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.[11]
[11] At p.145.
This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[12]
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 whilst 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. (Citations of authorities omitted).
[12] (1996) 68 FCR 422 at 431-432.
After referring to the judgement of the Court in Irving, Chapter 11 provides, in part:
In this context, "moral" does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
·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.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.[13]
[13] At p.145.
In considering the Citizenship Policy I have taken into account that it refers to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[14] in which the Tribunal said:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
[14] [2011] AATA 304 at [120].
The Policy goes on to say that an applicant of good character would, amongst other things, respect and abide by the law of Australia, and be truthful and not practise deception in his or her dealings with the Australian Government.[15] All of these authorities along with the Citizenship Policy make it clear that abiding by Australian laws is a very important factor that I need to consider.
CONSIDERATION
[15] At p. 147.
Characteristics of a person of good character
Chapter 11 provides a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of the Chapter. They include:
·respect and abide by the law in Australia and other countries.
…
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example: …
· concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship;
…
·not be violent … and not cause harm to others through their conduct.
...
It is a matter of weighing up the various factors in the evidence before me. Under the heading of Weighing up the character decision, the Policy provides:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
•would a person of good character have behaved the way the applicant did
•what is there to demonstrate that the applicant has upheld and obeyed the law
•has the applicant behaved in accordance with Australia's community standards
•does the applicant share Australia’s democratic beliefs and respect its rights and liberties.[16]
I note that, once again there is a reference to the question of whether an applicant for citizenship has upheld and obeyed the laws of Australia.
[16] At pp. 149-150.
Character references
Evidence of Ms Maharaj, Mr Prasad’s wife
Ms Maharaj provided a statutory declaration dated 27 April 2017[17] and gave evidence. The declaration reads in part:
2.My husband Ravin Prasad and I have reconciled and are living together harmoniously.
3.We have not had any issues since the incident for which we attended court.
4.Ravin has accepted and understood the responsibility of a good husband and a good father.
5.Ravin has shown lots of remorse for his conduct.
[17] Exhibit A2.
When she gave evidence as to the assault upon her Ms Maharaj said that “there was a little bit of pushing and shoving ……. he pulled my hair.”[18] Immediately after the assault her neck was painful. She said also that their son (then aged eight) was there and he called the ambulance.
[18] Transcript 12/07/17.
Statement of Mr Reddy, Mental Health Worker
Mr Reddy has known Mr Prasad for the past five years. He provided a signed statement dated 1 May 2017.[19]
[19] Exhibit A4.
Mr Reddy stated that Mr Prasad made him aware of the assault conviction and that he was remorseful and repentant of his actions. In the opinion of Mr Reddy, Mr Prasad is “a very changed person.”
Statement of Mr Prakash, Justice of the Peace
Mr Prakash, who has known Mr Prasad for seven years, provided a signed statement dated 27 April 2017.[20]
[20] Exhibit A3.
Mr Prakash came to know Mr Prasad through sporting and cultural activities. He is of the view that Mr Prasad is honest and hard-working. Mr Prasad made Mr Prakash aware of his assault conviction prior to his statement being signed.
Weighing the various factors
I must look holistically at the Applicant’s behaviour over an enduring period of time.
Mr Prasad’s assault upon his wife weighs heavily against a finding that he is of good character. Domestic violence, in any form and in any circumstances, is fundamentally inconsistent with the standard of behaviour expected by the Australian community.
Having listened to Mr Prasad give oral evidence I am not satisfied that he fully appreciates the seriousness with which violent offending, and particularly domestic violence, is regarded in our community. Despite his expressions of remorse, he continues to claim that in pushing his wife he acted to protect himself. When asked why he did not disclose the conviction in his application for citizenship he said that he thought that domestic violence “is not a very big criminal history”. In his view “it is a crime, but not that big a crime.”[21] Further Mr Prasad stated that his wife was partly responsible for the assault as had it not been for the argument between them, the situation would not have arisen.
[21] Transcript 12/07/17.
Mr Prasad’s explanations for his failure to disclose his conviction on his application were inconsistent. At first he said that having responded “no, no, no” to the questions as to character on behalf of his wife and son, he simply responded in the same way when he came to complete his own application. However, in cross-examination he said that he did not consider his conviction when completing his application as he thought that it was “not a very big criminal history …… it is a crime, but not that big a crime.”[22]
[22] Transcript 12/07/17.
In a statutory declaration made 28 October 2016 and provided to the Department, Mr Prasad stated that:
I did not realise that it was relevant for me to provide those details. It was my honest mistake.[23]
Mr Prasad first disclosed his conviction to the Department on 19 September 2016.[24]
[23] Exhibit R1 p.133.
[24] Exhibit R1 p.126.
Mr Prasad’s failure to disclose his conviction in his citizenship application, and his stated reasons for not so doing, causes me not to be satisfied that he respects and will abide by the laws of Australia. His traffic infringements, although at the less serious end of the scale, support the conclusion I have reached.
There is no evidence that Mr Prasad has undertaken any form of rehabilitative treatment to reduce the risk of his committing further domestic violence. As was contended on behalf of the Minister, this is of concern taking into account that in August 2015 (after the expiry of the apprehended violence order) the Police were again called to Mr Prasad’s home following an argument between him and his wife.[25] No charges were laid on this occasion.
[25] Exhibit R2 pp.19-20.
I have considered the references provided by Mr Reddy and Mr Prakash. Neither gentleman states when he learned of Mr Prasad’s conviction. The similarity in the wording of the statements suggests that it may have occurred only at the time Mr Prasad requested the statements be supplied for the purposes of this hearing. They provide minimal assistance in determining the issue in this matter. Applying what was said by the Federal Court in Irving I must look at Mr Prasad’s actions rather than how he is subjectively viewed within the community.
I do not consider that any of these factors or explanations outweigh Mr Prasad’s past serious offending behaviour. I must consider Mr Prasad’s enduring moral qualities at the time of this decision. On the evidence before me such qualities have not been demonstrated.
My decision does not mean that Mr Prasad cannot again apply for citizenship. At some future time he may be able to demonstrate that he is of good character and be able to meet the other requirements of the Act to enable him to enjoy the privileges of Australian citizenship.
CONCLUSION
The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 28 November 2016 to refuse Mr Prasad’s application for Australian citizenship will be affirmed.

I certify that the preceding 41 (forty–one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate
Dated: 15 September 2017

Date(s) of hearing: 12 July 2017

Solicitors for the Applicant: M Nair, M.S.Nair & Co.

Solicitors for the Respondent: P Richards, Clayton Utz

Date(s) of hearing:	12 July 2017
Solicitors for the Applicant:	M Nair, M.S.Nair & Co.
Solicitors for the Respondent:	P Richards, Clayton Utz