QJJY and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) - [2022] AATA 3180

QJJY and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2022] AATA 3180 (30 September 2022)
Division:GENERAL DIVISION
File Number: 2021/8822
Re:QJJY
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member A. Nikolic AM CSC
Date:30 September 2022
Place:Melbourne

The Tribunal affirms the decision under review.
.....................[sgd]...................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
CITIZENSHIP – application for conferral of Australian citizenship – whether the Tribunal is satisfied of the Applicant’s good character – Australian Citizenship Act 2007 (Cth) – violent offence – Tribunal is not satisfied Applicant is currently of good character – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act1975 (Cth)
Australian Citizenship Act 2007 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
TCXM v Minister for Immigration, Citizenship, and Multicultural Affairs [2022] AATA 2820
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (26 February 2021)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
30 September 2022
INTRODUCTION

The Applicant seeks review of the Respondent’s decision dated 28 October 2021, refusing his application for Australian citizenship by conferral on character grounds.
This application was heard in person at the Tribunal’s Melbourne Registry on 27 September 2022. The Applicant was self-represented. The Respondent was represented by Ms Letcher-Boldt, a solicitor with Clayton Utz.
A confidentiality order was not sought by either party in this matter. Given the specific circumstances of this case, however, including the Applicant’s self-represented status, involvement of family violence, and the interests of two minor children, the Tribunal decided to make an order under section 35 of the Administrative Appeals Tribunal Act1975 (Cth). This prohibits the publication of the name of the Applicant or any information that might tend to reveal his identity. He will be known in these reasons by the anonym “QJJY”. The Tribunal has also decided not to disclose the names of witnesses or those who provided character references for QJJY.
For the following reasons, the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is almost thirty years old and a citizen of Afghanistan by birth.[1] He arrived in Australia approximately nine years ago on a Humanitarian (Class XB) (subclass 200) visa[2] and has not departed since.[3] He currently holds a Resident Return (class BB) (subclass 155) visa, which enables him to reside here permanently.[4]
[1] Exhibit R1, 146.
[2] Ibid 177; 178.
[3] Ibid 177.
[4] Ibid 178.
Soon after arriving in Australia the Applicant met his wife to be and they married in 2017. The Tribunal will refer to the Applicant’s partner as “Ms MJ”, with whom he has two minor children.[5]
[5] Ibid 163.
In February 2018, the Applicant applied for Australian citizenship by conferral.[6] In early September 2018, he and Ms MJ had an argument, during which the Applicant struck her.[7] A Police Incident Report describes this interaction as follows:[8]
‘[Ms MJ] and [the Applicant] were in the car outside the home address after just returning from a night out. [Ms MJ] and [the Applicant] were arguing...
The argument was heated and [the Applicant] has, without warning, slapped [Ms MJ] to the right side of her head with an open hand. This caused [Ms MJ] to have a red mark on her cheek and her ear to sting. [Ms MJ] was in shock after this incident and went inside to call police…
Police attended and….[the Applicant] was field interviewed for unlawful assault…’
[6] Exhibit R2, 2-19.
[7] Exhibit R3, 2.
[8] Ibid.
A 12-month Family Violence Final Intervention Order (“FVFIO”) was taken out for Ms MJ’s protection.[9] In October 2018, the Applicant was found guilty in the Magistrates’ Court of one charge of Unlawful assault.[10] The Court decided not to record a conviction and adjourned the matter for 12 months, during which the Applicant was required to be of good behaviour and to attend a Men’s Behaviour Change Program (“MBCP”).[11]
[9] Exhibit R1, 164-165.
[10] Exhibit R2, 36.
[11] Exhibit R1, 176.
The Applicant’s citizenship application was refused on 2 September 2019 under s 24(6)(a) of the Australian Citizenship Act 2007 (Cth) (“the Act”),[12] because the Applicant had a continuing proceeding within the meaning of the Act.[13] The Applicant challenged this decision, which was dismissed by the Tribunal on 2 December 2019, on the basis that it had no reasonable prospects of success.[14]
[12] Exhibit R2, 21.
[13] Tribunal application 2019/5706.
[14] Exhibit R1, 12.
On 29 June 2021, the Applicant lodged another application for Australian citizenship by conferral,[15] together with copies of his Afghan passport, driver’s licence, and an Australian Titre de Voyage. He was subsequently invited by the Respondent to comment on his unlawful assault charge, and in response provided statements from Ms MJ, several friends, and an employer, together with confirmation of some attendance at a Men’s Behaviour Change Program.[16] In an undated statement, the Applicant stated he was:[17]
‘…living in good character, I followed several things while spending a good family life with my wife and children. And also, I completed the Men’s Good Behaviour Programme on 3^rd December 2019. Accordingly, I confirm that I have undertook all those things as court ordered and then the matter settled, finalised with the consent on both parties and my IVO finished 31 November 2019…
My wife also has proved that she is happy about my behaviour and confirmed that we have not any problems among us. My work colleagues also have evidenced about my good behaviour and characteristics. I have now two kids and me and my wife are having a happy family life with our kids.’[18]
[15] Ibid 104.
[16] Ibid 161-175.
[17] Ibid 173.
[18] Ibid 173-174.
In response to a question on his citizenship application about whether he was found guilty of or convicted of any offence in Australia or overseas, the Applicant responded: ‘No’.[19]
[19] Ibid 117.
On 28 October 2021, the Respondent refused the Applicant’s citizenship application under s 21(2)(h) of the Act.[20]
[20] Ibid 8.
The Applicant asked the Tribunal to review this decision on 18 November 2021.[21] In response to the question on the application form asking: ‘Why do you claim the decision is wrong?’ the Applicant stated:
‘My court case is already finished and I am behaving good in the community. I have provided all related information and documents to the Department, but unfortunately, the decision was not granting me the citizenship.’[22]
[21] Ibid 2.
[22] Ibid 6.
LEGISLATIVE FRAMEWORK
Under s 21(1) of the Act a person can apply to the Minister to become an Australian citizen. To be eligible, a person must meet each of the eight general eligibility requirements under s 21(2) of the Act.
Section 21(2) of the Act sets out general eligibility criteria for Australian citizenship, with
s 21(2)(h) requiring the Minister to be satisfied that an applicant ‘is of good character at the time of the Minister's decision on the application.’ Under s 24(1A) of the Act, the Minister (or a person delegated by the Minister under s 53 of the Act) cannot approve the application unless so satisfied.
Section 52(1)(b) of the Act is the source of the Tribunal’s jurisdiction to review decisions made under s 24 of the Act.
The Tribunal’s decision in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 is often cited for its explanation of the significance of the good character requirement to applications for Australian citizenship:
‘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.’
Citizenship Policy Statement and Revised Citizenship Procedural Instructions
The term ‘good character’ is not defined in the Act. The Full Court of the Australian Federal Court has found the term is to be interpreted broadly:
‘…Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion…’[23]
[23] Grass v Minister for Immigration and Border Protection [2015] FCAFC 44, [60].
The Australian Citizenship Policy Statement (Policy) (issued 27 November 2020) and the Revised Citizenship Procedural Instructions (CPIs) (reissued 26 February 2021) guide decision-makers exercising powers and discharging functions under the Act. Although such policy is not binding on the Tribunal, decision-makers undertaking merits review should generally apply it unless it is unlawful or ‘there are cogent reasons to the contrary.’[24] The Tribunal has not identified any reason why the Policy or CPIs should not be applied. The Tribunal is mindful of the need to consider the exercise of delegated powers based on the specific circumstances of each case.
[24] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Relevant to this application is Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15). CPI 15 states that decision makers ‘should not apply policy inflexibly and should consider the merits of each individual case’. It explains ‘good character’ in the following terms, reflecting the observations of Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[25]
‘Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.’
[25] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at 431-432.
CPI 15 provides further guidance as to the meaning of the term ‘enduring moral qualities’:
‘The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have endured over a long period of time;

·distinguishing right from wrong; and

·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.’
CPI 15 also provides a non-exhaustive list of characteristics generally expected of a person of good character, noting that ‘as a general proposition, a person who is of good character would:’
·‘respect and abide by the law in Australia and other countries;

·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds, and pay debts to the Commonwealth);

·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:

ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;

…’
Under the heading ‘Community standards’, CPI 15 provides that the Preamble to the Act can assist in identifying what the Australian community considers proper behaviour when assessing good character. This reflects the approach taken in Zheng v Minister for Immigration and Citizenship.[26] The Preamble defines Australian citizenship as follows:
‘Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)by pledging loyalty to Australia and its people; and
(b)by sharing their democratic beliefs; and
(c)by respecting their rights and liberties; and
(d)by upholding and obeying the laws of Australia.’
[26] Zheng v Minister for Immigration and Citizenship [2011] AATA 304.
Under the heading ‘Weighing information’, CPI 15 sets out how a holistic assessment of a person’s character may be made:
‘In addition to the general principles of good decision-making set out in Citizenship Instruction 17 – Decision-making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:
·characterise the nature of any offence or behaviour
·consider any associations with people or organisations of concern.
·consider any mitigating circumstances:
o    length of time since the offence was committed
o    age at time of offence
o    behaviour since completing prison sentence or obligations to court
o    remorse regarding their offending behaviour
o    community support (referee reports etc)
o    changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
·     weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.’
The requirement for a global assessment of a person’s character has previously been discussed by the Tribunal in Prasad and Minister for Immigration and Ethnic Affairs:
‘a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.’[27]
EVIDENCE
[27] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].
Documentary evidence
The following documents were tendered into evidence:
(a)Documents tendered by the Respondent numbering 178 pages;[28]
(b)Supplementary documents tendered by the Respondent numbering 36 pages;[29]
(c)Summons material tendered by the Respondent numbering seven pages;[30]
(d)Statement of the Applicant dated 3 January 2022;[31] and
(e)Further statement of the Applicant dated 25 May 2022.[32]
[28] Exhibit R1.
[29] Exhibit R2.
[30] Exhibit R3.
[31] Exhibit A1.
[32] Exhibit A2.
Applicant’s evidence
The Tribunal has considered the Applicant’s documentary evidence.[33]
[33] Exhibit R1, 173-174.
In his oral evidence, the Applicant said that at the time of his offending he was young and inexperienced about ‘how to act with women’. He said this was his first relationship and the incident occurred in the first year of marriage, when he and Ms MJ ‘didn’t understand each other’. The Applicant explained his courtship with Ms MJ was undertaken for three years over the telephone while they lived in different states, which is why it took time to adjust to living together after marriage.
When asked if he knew at the time of his offending it was wrong to act violently towards a woman, the Applicant said he did not because of unfamiliarity with ‘the rules in Australia’. He also claimed that in his ethnic grouping it was common to assault a spouse. When challenged by Ms Letcher-Boldt that he was 24 years of age and had lived in Australia for five years at the time of this offending, the Applicant insisted: ‘I never thought about these things before committing the offence.’
When asked to explain what occurred during the incident with Ms MJ, the Applicant said she was missing her family interstate during the early stages of their relationship, which caused ‘problems’ between them. He said that she was ‘yelling’ at him and ‘talking bad things about [his] family’, which caused him to impulsively slap her once. He noticed ‘she had a little bit of a red mark on her cheek’.
The Applicant recalled being interviewed by police and a family violence order put in place. He claimed they reunited soon after with Ms MJ’s agreement. The Applicant said he regretted hitting Ms MJ ‘straight away’, but then explained she also regretted calling police because of the serious consequences this caused, such that their regret put them ‘both in the same situation’. After resuming their relationship, the Applicant claimed: ‘so far we have a good life together’. He said Ms MJ apologised to him for her conduct during the argument and he did the same. He said that in the intervening period, ‘nothing else has happened’. The Applicant explained that every person can have ‘a bad day’ and contextualised their argument as: ‘A very bad conversation…She’s never pissed me off like that before – it was only that night.’ The Applicant did not disclose during his evidence that he and Ms MJ have lived separately for several months. This only emerged during Ms MJ’s evidence and is later discussed.
The Applicant recalled he was legally represented in court, pleaded guilty to unlawful assault, and received a 12-month good behaviour bond and a direction to attend an offence-specific course. He claimed to have completed a MBCP in late 2019, but a letter from Relationships Australia (Victoria) stated he had only completed 14 of 20 sessions as at the date of the letter.[34] The Applicant agreed this letter did not confirm his completion of the course. On 29 September 2022, after the hearing ended, the Applicant provided a further letter from Relationships Australia (Victoria), stating he had completed the MBCP. Ms Letcher-Boldt did not object to the Tribunal considering this information.
[34] Ibid 171.
When asked by Ms Letcher-Boldt what the MBCP involved, he responded inter alia:
‘They will assist you and they will teach you know like what sort of behaviour needed to be, you know like, when you have something like this issue, so for example, you go home, you feel tired, or if you have a bad day or something, they will teach you how to, they train you actually to how to control your bad day or something to avoid all this you know like assault, assault or something, that you gonna you know like have a very bad behaviour to your wife or to your kids, so they will teach you a lot of things about your behaviour.’

When asked how he would respond in future if confronted with a similar argument, it took several attempts to get the Applicant to reply in other than general terms. He eventually responded: ‘Now I know I lot of things. I can control my explosion. Best thing is to leave the situation…If I get pissed off, I can handle it and never let an assault happen again’. When asked whether he took any steps to continue his learning in this area, the Applicant said the MBCP sessions provided him with all the information he required. He had not made any follow-up enquiries in this regard.
The Applicant was asked why he responded ‘No’ to the question on his 2021 citizenship application about whether he was found guilty or convicted of any offence overseas or in Australia.[35] He said this was because he found the question confusing and thought it only related to overseas offending. The Applicant was asked to read the character declaration at the bottom of page 117 of Exhibit R1. He was able to do so fluently, demonstrating a well-developed ability to read in English and comprehend the subject matter.
[35] Ibid 117.
When asked if any of the people who submitted supportive references on his behalf knew about his violence against Ms MJ, the Applicant said they did not. He felt there was ‘no need to share [his] private history’ with them and claimed the incident with Ms MJ was not relevant to the references they provided. The Applicant believes these references constitute a more holistic reflection of his character than may otherwise be discerned from a single, impulsive violent act against Ms MJ.
The Applicant said he has relatives in Iran and Afghanistan who he talks to regularly and assists financially but had not told them about the incident with Ms MJ. His and Ms MJ’s family in Australia, however, are aware of the incident. The Applicant said several family members, including his father and Ms MJ’s brother spoke to him about violence not being a good way to address conflict in marriage.
The Applicant explained that citizenship was important to him, including because he wanted to have a passport to travel overseas on holidays.
Ms MJ’s evidence
At the commencement of her evidence Ms MJ gave a different residential address to that of the Applicant. When asked why, she said they had lived separately for several months, because she ‘just wanted to have [her] own time’.
Ms MJ recalled that she and the Applicant were only separated for about two weeks after the slapping incident, but then resumed living together again. She said there had not been any repeat of his past violent conduct against her.
Ms MJ said the Applicant has ‘changed a lot’ since 2018, is of ‘good character’ and ‘takes good care of [her] kids’. Despite being separated, she sees the Applicant multiple times each week when he comes to visit their children. When asked if she has any concerns that another argument between them might cause the Applicant to repeat his conduct, Ms MJ responded: ‘I don’t think it will’.
CONSIDERATION
The Tribunal has considered statements tendered in support of the Applicant from his general practitioner, accountant, employer, and a work colleague.[36] None of these refer to his offending and the Applicant acknowledged the authors were unaware of his past violent conduct towards Ms MJ. The authors were not called as witnesses and little weight is consequently placed on these statements.
[36] Ibid 166; 167; 170; 172; 175.
The Tribunal has considered two brief statements from Ms MJ.[37] These are in general terms and do not refer to the Applicant’s offending. Little weight is placed on these statements. The Tribunal found Ms MJ to be a quietly spoken but forthright witness. There is clearly some continuing difficulty between her and the Applicant given their separation, but Ms MJ did not give evidence about this beyond stating she needs time on her own.
[37] Ibid 168-169.
The additional letter provided by the Applicant from Relationships Australia (Victoria) confirms his completion of the MBCP. No information beyond the Applicant’s attendance is disclosed.
CONCLUSION
The devastating pervasiveness of violence against women and girls is not delimited by nationality, ethnicity, or status.[38] Such violence, as is the case here, is all too frequently committed by an intimate male partner and can cause enduring harm. While the Applicant has been found guilty of only one act of family violence, even one act can have enduring consequences. Such conduct raises character concerns and conflicts with the values underlying the privilege of citizenship. That said, due regard must be given to the aggregate of an applicant’s qualities and the extent to which past violent conduct has been redeemed. This includes by considering factors like persuasiveness of insight and contrition, evidence of offence-specific rehabilitation, and the extent of subsequent good behaviour.
[38] TCXM v Minister for Immigration, Citizenship, and Multicultural Affairs [2022] AATA 2820 [116].
Aspects of the Applicant’s evidence demonstrate he has some way to go in more persuasively developing his insight. This includes by better articulating the lessons he has learned from the MBCP, relying less on Ms MJ’s conduct as precipitating his violent response, and being more forthright about the nature of their current relationship. The Tribunal does not accept the Applicant’s assertion that he and Ms MJ were ‘both in the same situation’ after he assaulted her. Much of the Applicant’s evidence centred on how this incident damaged his prospects of citizenship, forced him to ‘tolerate’ unfairness and punishment because of ‘one human mistake’,[39] the embarrassment he feels when other family and friends receive citizenship, and how his travel plans are restricted. This imbalance in his evidence reinforced the Tribunal’s concerns about the currently limited extent of his insight, particularly about the impact of his offending on Ms MJ.
[39] Exhibit A1.
The Tribunal does not accept the Applicant’s claim that he was young and inexperienced at the time of this offending or did not know the ‘rules’. He was 24 years of age and had lived in Australia for five years when this incident occurred. The Tribunal is also concerned the Applicant did not disclose his offending in the 2021 citizenship application, which constitutes false or misleading information in an official setting. Despite his explanations, the Tribunal is unpersuaded that the relevant question on the citizenship form is confusing or could be interpreted as only relating to overseas offending.
On the evidence currently before the Tribunal, insufficient time has passed between the Applicant’s family violence, expiration of the FVIO on 30 November 2019, and failure to disclose his offending in the 2021 citizenship application, for the Tribunal to be satisfied he is currently of good character. This is despite the other positive aspects of his application.
It is open to the Applicant to re-apply for Australian citizenship. The Tribunal encourages him to further develop his insight and ensure that he fully discloses matters of character concern when completing his next citizenship application.
DECISION
It follows that the Tribunal affirms the decision under review.

51.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC.

……………[sgd]…………………….
Associate
Dated: 30 September 2022

Date of hearing: 27 September 2022

Applicant, self-represented: QJJY in person

Advocate for the Respondent: Ms Emma Letcher-Boldt

Solicitors for the Respondent: Clayton Utz

Date of hearing:	27 September 2022
Applicant, self-represented:	QJJY in person
Advocate for the Respondent:	Ms Emma Letcher-Boldt
Solicitors for the Respondent:	Clayton Utz