Rahman and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2024] AATA 2604
•22 July 2024
Rahman and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 2604 (22 July 2024)
Division:GENERAL DIVISION
File Number(s):2023/5917
Re:Md Ziaur Rahman
APPLICANT
Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Mr J Cipolla, Senior Member
Date:22 July 2024
Place:Sydney
The decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 25 July 2023 is affirmed.
.........................[SGD]...............................................
Mr J Cipolla, Senior Member
Catchwords
CITIZENSHIP — Application for Australian citizenship by conferral — Refusal of citizenship application — Whether Applicant has satisfied section 21(2)(h) — Good character requirement — Citizenship Policy — Meaning of ‘good character’ — Enduring moral qualities — Common assault — Domestic violence — Decision under review affirmed.
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Ahori and Minister for Immigration and Border Protection [2017] AATA 601Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Sharma v Minister for Immigration and Border Protection [2015] AATA 608Secondary Materials
Australian Citizenship Policy Statement
CPI 15 - Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
July 2024
INTRODUCTION
The Applicant (the Applicant) seeks to review the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) to refuse his and his daughter, Zunairah (a minor), the grant of Australian citizenship by conferral. The delegate was not satisfied that the Applicant was of good character, pursuant to s.21(2)(h) of the Australian Citizenship Act, which is a requirement for eligibility to become an Australian citizen. The delegate was satisfied that Miss Zunairah Rahman met all the requirements for the grant of citizenship set out in s.21(5) of the Australian Citizenship Act 2007. However, in applying policy guidelines, the delegate decided not to utilise discretion to approve Miss Rahman’s application to become an Australian citizen by conferral, applying the following considerations. She was not living with a responsible parent who is an Australian citizen and who consents to the application or who is usually resident in Australia; with a permanent resident responsible parent who consents to the application, and that responsible parent would meet the residence requirements but has decided not to apply for Australian citizenship because they would lose the citizenship of another country. Additionally she was not living with a responsible parent, who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage is an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated Guardian has consented to the application; or an unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application.
For the reasons that follow, the decision will be affirmed.
BACKGROUND
The Applicant is a 44 year old citizen of Bangladesh.[1] The Applicant married Miss Ara Rowshon (Miss Rowshon) in Bangladesh.[2] On 20 May 2017[3] the Applicant arrived in Australia as the holder of a Skilled Nominated (Subclass 190) visa.[4]
[1] T4 page.109 and 133.
[2] ???]
[3] T4 page.119 and T12 page 167.
4 Ibid.
5 T9 page 160.
Background
On 13 November 2020, the Applicant pleaded guilty and was convicted of Common assault (DV)-T2 (the common assault) in the Burwood Local Court and sentenced to a 12-month community correction order (CCO) which concluded on 12 November 2021.[5] The details of the Applicants offending, which occurred on 22 March 2020, are set out the Respondent’s statement of facts, issues and contentions (SFIC).[6]
[6] Respondents statement of facts, issues and contentions.
The details of the common assault for which the Applicant was convicted in the Burwood Local Court can be extrapolated from the transcript of the Applicants interview with New South Wales Police conducted on 22 March 2020. It is also confirmed by his conviction and sentencing in the Burwood Local Court.
At about 2pm on the day in question the Applicant had been undertaking some gardening in his accommodation in Macquarie Park, New South Wales which he shared with his wife, his daughter and three other co-tenants. After completing work in the garden, the Applicant returned to the house to wash his hands and to have some food and water. The Applicant advised Miss Rowshon that he was hungry and that he wanted some food as did their daughter and claims to have made repeated requests for this. The Applicant claims that Miss Rowshon despite cooking food, did not give food to his daughter or to him and that in due course an argument ensued, and the Applicant and Miss Rowshon began shouting at each other in front of their young daughter. The Applicant was embarrassed about the public display of anger between himself and Miss Rowshon and how it would be perceived by other tenants in the house and claims that in an attempt to subdue Miss Rowshon he hit her with an open hand and also struck her with a kitchen spatula when she attempted to call the police. The police interview notes state that the Applicant told police that he had previously assaulted Miss Rowshon.[7]
[7] Summonsed documents at 3.
On 2 March 2023, the Applicant lodged an application for citizenship by conferral pursuant to subsection 21(2) of the Act.[8] In his application for citizenship, when asked whether he has criminal convictions in Australia or overseas, the Applicant answered ‘yes’ and gave details of the common assault (DV) offence.[9]
[8] T4 page102-138.
[9] T4 page 120.
On 23 June 2023 a delegate of the Minister invited the Applicant to comment on the conviction.[10] The Applicant responded with the provision of a statement and two character references, one from Lynda Louise Shrimpton, a neighbour from Macquarie Park, and the other from Christina Nga, his landlady.[11]
[10] T9 page153-161.
[11] T10 page162-165.
On 25 July 2023 the delegate of the Minister refused the Applicant’s application for Australian citizenship by conferral on the basis that the delegate was not satisfied that the Applicant was of good character as required by paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).[12] The delegate found that the seriousness of the Applicant’s conviction outweighed the evidence of his good character.
[12] T2 7-18.
On 14 August 2023 the Applicant applied to the Tribunal for review of the delegate’s decision.[13]
[13] T1 1-6.
A hearing was scheduled for 9 July 2024 and the Applicant was duly notified of the hearing place, date and time.
Prior to the hearing the Tribunal had Registry contact the Applicant to confirm that he did not need an interpreter for the hearing. The Applicant advised Registry staff that he did not need an interpreter, despite English not being his first language. In the circumstances and in the absence of an interpreter the Tribunal determined that it would be best to run an in person hearing at the Tribunal’s Sydney Registry and the Applicant was advised of this prior to the hearing. The Tribunal further determined that if it became apparent that there was a need for an interpreter on the day that a telephone interpreter could be engaged. At 1am on the day of the hearing the Applicant sent an email to the Tribunal to advise that he would not be attending the hearing in person and that he wished for the hearing to be conducted by video.
On the date of the hearing the Ministers representative Ms Gabrielle Ho, attended the Tribunal hearing. Initial attempts to have the Applicant join the hearing by video were unsuccessful, however in due course the Applicant was connected to the review hearing via video conferencing facilities, however he refused to engage his video camera.
At the outset of the hearing the Tribunal advised the Applicant that given the nature of the review and the fact that English was his second language that the Tribunal believed that it would be in the Applicant’s best interests for the hearing to be convened in person. The Tribunal noted that prior to the hearing, directives had been made to both the Applicant and the Ministers representative to attend the Tribunal hearing on 9 July 2024 in person.
The Applicant advised that he had no intention of attending the hearing in person and that he had experienced unfavourable hearings in a previous matter in the AAT, and in matters at the New South Wales Civil and Administrative Tribunal and at the Fair Work Commission. The Tribunal pointed out to the Applicant that it had made a determination that given the content of the review, the fact that English was the Applicant’s second language and given the Applicant’s preference not to use a Bangladesh interpreter, that it was best to convene the hearing in person in Sydney.
The Applicant advised the Tribunal that he had made written submissions to the Tribunal in advance of the review hearing and suggested that the Tribunal had failed to engage with those submissions and had the Tribunal done so it would be able to make a decision in his favour on the papers. The Tribunal refuted this assertion and advised the Applicant that it had carefully engaged with the pre-hearing evidence that had been provided.
The Tribunal noted that the Applicant had applied to the Tribunal for a review of a decision of the Minister to refuse his application for citizenship by conferral on the basis that he did not meet relevant character requirements. The Tribunal noted that the AAT was an independent and impartial body that had been set up by the Australian government to conduct reviews of Federal government decisions. The Tribunal noted that it had reviewed the evidence provided by the Applicant and the evidence provided by the Respondent, evidence which had been duly exchanged with him. The Tribunal noted that its job was to assess the evidence before it in order to come to the correct and preferable decision in the review.
The Tribunal advised the Applicant that it believed the best way to convene the review was to have both the Applicant and the Respondent representing the Minister appear in person at the Tribunal hearing. The Tribunal also formed the view after conversing with the Applicant at the hearing on 9 July 2024 that there was a need for an accredited Bangladeshi interpreter to be present to assist both the Tribunal and to assist the Applicant.
The Applicant made a number of interjections to the Tribunal during this exchange and advised that he believed that the Minister was corrupt, that the review process was corrupt, and that the Tribunal should have been able to make a decision in his favour based on the submissions that he had made to the Tribunal at review.
Once again, the Tribunal reiterated that the hearing was an opportunity for the Applicant to give evidence as to why he disagreed with the decision of the Minister with respect to his citizenship application. It would also enable the Applicant to listen to the arguments articulated by the Respondent representing the Minister and to raise any issues with respect to those submissions. The Applicant continued to interject and badger the Tribunal.
The Tribunal advised the Applicant that it believed that it was in his best interests and in the interests of procedural fairness for the hearing to be adjourned to a date to be fixed to enable both the Applicant and the Ministers counsel to attend the Tribunal hearing in person and to enable the Tribunal to organise an accredited Bangladeshi interpreter to assist. The Applicant advised the Tribunal that he would refuse to attend any in-person hearing. The hearing concluded.
The Tribunal re-scheduled the hearing for an in-person hearing on 19 July 2024 at 10am with a Bangladeshi interpreter arranged to assist the Tribunal and if necessary, the Applicant. The new hearing notices were sent to both the Applicant and to the Respondent’s representative advising of the new hearing date, time and place.
On 9 July 2024 the Applicant as noted emailed the Tribunal advising that he did not intend to attend the re-scheduled hearing as follows:
However, my standpoints are clear. I am not available for the next hearing regardless of my scenarios.
I want citizenship under the lawNOT other ways around. If my citizenship breaks the law, I don't want that - because breaking the law is not my intention at all.
I am reviewing my Citizenship Application because I see - the Minister is violating law & doing unfair practices which is very harmful for Australians Work force, Economy and other my personal & Australian National public interests grounds.
I am a senior Australian - I must protect Australian interests regardless of anyone's choice.
By the way, please leave me declaring my citizenship application station. I don't agree to in-person attendance with a Bangladeshi Interpreter who is likely mis-interpret my case.
Today I attended the hearing. Most sessions, the Judge talked about in-person hearing with the Interpreter - which is unacceptable in my scenarios. I find the Judge is too senior having serious issues of cognitive ability to assess my application further. Rather I find him - incapable, did not go through documents, understanding problems of english reading, influential, inadequate of reading & understanding of english etc and so forth.
I am up to this email. I want to save my time & energy which is limited.On 19 July 2024 the Applicant failed to attend the review hearing. The Tribunal is satisfied that the Applicant was duly notified of the date, time, place and mode of hearing. Ms Ho representing the Minister attended the re-scheduled hearing as did an accredited Bangladeshi interpreter.
At the outset the Tribunal made reference to the hearing of 9 July 2024 and to the Tribunal decision communicated to the parties on that day to re-schedule that hearing to an in-person hearing with an interpreter on a date to be fixed.
The Tribunal noted that there had been no appearance by the Applicant at hearing on 19 July 2024 and that no reason for his non-attendance had been communicated since the above e-mail of 9 July 2024.
The Tribunal in these circumstances finds that it has utilised its best endeavours to invite and have the Applicant attend an in person hearing before the Tribunal. The Applicant has elected not to engage in the hearing process both on 9 July 2024 and again on 19 July 2023. The Tribunal has made every endeavour to engage the Applicant in the hearing process and he has elected not to do so.
The Tribunal has in these circumstances decided to proceed to decision having regard to the evidence before it.
ISSUE TO BE DETERMINED
The issue to be determined is whether, at the time of the Tribunal’s decision, the Applicant is of ‘good character’ such that he meets the requirements of paragraph 21(2)(h) of the Act.
LEGISLATIVE AND POLICY FRAMEWORK
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen.
Determining questions of character
The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J said:
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.[14]
[14] (1996) 139 ALR 84, at 94.
In determining whether an individual is of good character, the Australian Citizenship Policy Statement and the Citizenship Procedural Instructions provide guidance for decision makers. The policy relevant to this application is found in CPI 15 - Assessing Good Character under the Citizenship Act.
Informed by the discussion in Irving, subsection 3.3 of the Instruction state that:
A decision-maker can be satisfied that an Applicant is of good character if the Applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the Applicant held a visa, and during the time their citizenship application was lodged and processed.[15]
[15] T15 page106.
The Instructions specifically call for decision makers to ‘look holistically at [an] Applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities.’[16] A person’s enduring moral qualities encompass:
[16] CPI 15, section 14, see in T15 page120.
- 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.
Paragraph 3.1 of CPI 15, under the heading ‘Procedural Instruction’, states:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen. This Instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
• consider any character issues that arise on the facts of a case;
• consider all relevant information;
• guard against bias;
• be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
• be mindful that a person who may not have been of good character can become a person of good character;
• continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required. The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case. This Instruction provides guidance to decision-makers but it cannot fetter any statutory discretion conferred by the Act. The Instructions reflect government policy and are not binding on the Tribunal. However, it is well established that the Tribunal will apply government policy unless there are cogent reasons not to do so.[17]
FACTS AND EVIDENCE
[17]Citizenship Procedural Instructions 15 at paragraph 3.1.
18. See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ
The Applicant’s conduct
As has been noted the Applicant was convicted in the Burwood Local Court with common assault (DV) T2 on 13 November 2020.
According to the police record of interview, on 22 March 2020 the Applicant’s wife, Miss Rowshon, called police at about 2pm, following a verbal argument with the Applicant with respect to his demands for food and drink to be provided for him and his daughter and her failure to accede to his requests. The evidence indicates that the Applicant and Miss Rowshon and their young daughter were residing in premises in Macquarie Park that they shared these premises with three co-tenants. A loud argument ensued between the Applicant and Miss Rowshon in the presence of their young daughter and the Applicant, embarrassed by their raised voices in proximity to other tenants, hit Miss Rowshon and then at a later point in time struck her with a kitchen spatula on the head to prevent her from calling the police.[18]
[18] SM2 pages 3-39.
Ms Rowshon called the police who attended the Macquarie Park premises.
On 22 March 2020, the Applicant attended Ryde Police Station and was interviewed by police with respect to the incident of common assault (DV). During the course of the interview the Applicant made a number of admissions with respect to the common assault perpetrated against Miss Rowshon. The Applicant advised interviewing police during the police interview that there had been instances of domestic violence in the past both in Australia and in Bangladesh and the Applicant described Miss Rowshon as being ‘disturbed’ ‘out of control’ ‘abusive’ ‘ferocious’ ‘petty’ and ‘blackmailing’.[19]
[19] Ibid.
The Applicant’s evidence
In his prehearing submission to the Tribunal the Applicant provided comments with respect to the Respondent’s SFIC. With respect to the decision under review of 25 July 2023 to refuse his application for Australian citizenship by conferral on the basis that he did not satisfy the requirements of s.21(2)(h) the Applicant stated “I don’t agree as the paid Applicant, I do not satisfy the requirements of s 21(2)(h) of the Act. Because I think I have met government policies-citizenship procedural instruction No.15 (CPI 15) literally to the points (sic).”
With respect to the Respondent’s assertions made in the SFIC pertaining to the Applicant’s good character the Applicant stated that “I have enduring moral qualities over the 4 years since my case which I find NOT a domestic violence but a defence while my wife endangering my shared house tenancy, career, reputation etc because of her medical sickness as well as other abusive influence like advice from family members, neighbours and friends. I explained in Court & accepted lawful verdict. Court advised me-in that circumstance I might call police to handle my wife. However, I like to share with everyone-I called police couple of time during police’s ADVO almost 3 years to consult what to do during such scenarios. It worked and thereby I appreciate police highly.”
With respect to the Respondent’s submission that domestic violence in any form was not acceptable in the Australian community the Applicant stated “I agree. In the Australian community, everyone is supposed to live freely & independently without anyone’s control and personal influence holding personal privacy & safety. There is no place of domestic violence or zero tolerance. I regard Australian Laws at its best.”
With respect to the Respondent’s submission pertaining to Part 4 of CPI 15, the Applicant in his response stated that he believed that he met all points of the good character characteristics insofar as he respected and abided by the law in Australia and other countries, that he was honest and financially responsible, that he is honest was unquestionably ‘rock solid’ both professionally and personally and that he was paying child support to his daughter through the child support agency. Indeed, the Applicant espoused that “I am a religious person. I eat only religiously allowed. I am vegetarian by choices at most. I am sure-there is no one in the world, can complain towards me apart from my wife-who is medically sick as I explained because of her medical condition-epilepsy history and other personal variants. I am not violent as well NOT involved in illegal drugs or unlawful sexual activity, and not cause harm to others through my conduct.”
With respect to the Applicant’s conviction in the Burwood Local Court of Common Assault (DV)-T2 along with the fact that the Applicant was sentenced to a community correction order for 12 months and required to participate in domestic violence rehabilitation supervision for 12 months the Applicant stated that “I explained in Court already-which sounds embarrassing to me. Because my daughter was also hungry up-to 2.00pm. She is abusing me NOT cooking my daughter’s food as well when she was not doing no job. I carried out all her cost. Not only that-she is alluring me to be engaged into conflict because her understanding of her 35 having womanly health issues including epilepsy. Kitchen spatula-I use for my cooking at that time. During our fight, my daughter tried to stop us. I am proud of my daughter.”
The Applicant noted that since the commission of the offence and the conviction with respect to the offence that he had completed domestic violence rehabilitation, that he had completed 12 months community correction and a 30 month apprehended domestic violence order (ADVO). The Applicant stated that during this period he had developed a better understanding of Australian laws, the consequences of his actions and he had also engaged with the Alpha course which he described as a “wonderful way to be connected to community religiously knowing Christianity as well as a comparative study of other faith & practices.” The Tribunal notes that the Applicant provided e-mail correspondence pertaining to his interest in engaging with the Alpha course through The Bridge Church. The course is described as a journey of exploring life, faith and meaning. This email correspondence is dated 17 October 2023. A further e-mail dated 30 October 2023 addressed to the Applicant notes that the Applicant’s request to engage in the Alpha course had just been received due to a problem with The Bridge Church email account. It is not clear from the evidence whether the Applicant attended and completed the Alpha course and with respect to the content of the course.
The Respondent in submissions made in the SFIC noted that the references provided for the Applicant by Christina Nga and Lynda Shrimpton should not carry any weight for the following reasons. Ms Nga’s was prepared after knowing the Applicant for a relatively short period of time and that there were very limited details with respect to the relationship between the Applicant and Ms Shrimpton. In response to this component of the Respondent’s submission the Applicant stated that his landlady Christina Nga “voluntarily tried to consult my wife not to leave house in Covid time to domestic’s violence government temporary shelter, which is risky move having a child. But my wife did not listen her-confirms my wife ADHD & medical sickness. Even I informed police. Those are heading hard times for me having a non-cooperative & abusive & sick wife.” The Applicant refuted that nine months was not a significant time to know a person and provide a reference (Ms Nga) and that Ms Shrimpton was known to the Applicant for a couple of years as a neighbour in Macquarie Park.
With respect to the Respondent’s contention in the SFIC that the Applicant’s serious domestic violence conduct and subsequent attitude and statements with respect to his conduct, along with his lack of engagement in any meaningful rehabilitation demonstrated that the Applicant did not understand or abide by Australia’s zero tolerance towards domestic violence. The Applicant in response to this contention stated in his submission that “I am same side of Minister in terms of “domestic violence” conduct having zero-tolerance policy in genuine case. I find I am innocent enough not to fall in that conduct. Rather I find my case is rare, exceptionally unique. I was so busy & migrant that I behaved in the context of culture set up of my country of origin, which is fundamentally different from Australian culture & Laws. I hope Minister would be kind enough to re-assess my character based on my documents & information and therefore, release my citizenship under the law being persuasive as well as underneath AU Prime Minister’s recommendation and other considerations benefiting community from my service saving Australian national interests & progress at its best scales & range.”
CONSIDERATION
In determining if the Applicant is of good character, the Tribunal is required to consider the evidence as a whole and the Applicant’s behaviour over time.
The Instructions provide that domestic violence is considered serious and fundamentally inconsistent with the standard of behaviour expected by the Australian community. Accordingly, it will usually weigh heavily against an individual being of good character.[20] In Ahori v Minister for Immigration and Border Protection, Senior Member Sosso observed:
[t]here 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.[21]
[20] Sharma and Minister for Immigration, and Border Protection [2015] AATA 608, [37].
[21] [2017] AATA 601, [54].
The Applicant submits that since his offending in March 2020, that he has demonstrated through his actions that he is of good character. The Applicant claims that since the offending, a period of over 4 years, that he has been of good moral character.[22]
[22] Applicants response to SFIC.
The Tribunal notes at the time of the offending the Applicant was residing with his wife and daughter in Macquarie Park and that they were sharing the residence with three co-tenants. The Applicant in his response to the notice from the Minister inviting the Applicant to comment on adverse information pertaining to his application for citizenship by conferral, notes that his offending happened during the COVID pandemic. He describes it as a “strange time when we were all in stress & uncertain situations.” The Applicant notes that at the time he was in a new position of employment. The Applicant describes his relationship with his wife at the time as being “loving as well as quarrelling and responsible.” The Applicant stated that the “unwanted incident happened in specific circumstances.” The Applicant also stated that he was determined not to repeat the incident of 22 March 2020 and that “so far so good-nothing such things happened up to date.”[23]
[23] T10 page 163.
The Applicant submits that his good character is supported by the two character references provided from Ms Shrimpton and Ms Nga.[24]
[24] T10 page 164-165.
The Tribunal acknowledges that the Applicant was experiencing challenging circumstances at the time of the offending as was the Australian population during the onset of a one in one hundred year global Covid 19 pandemic, with associated panic and food shortages and that the Applicant was grappling with new employment in the mathematics and artificial intelligence areas.
The Tribunal also notes that the evidence before it indicates that during the Covid 19 pandemic Miss Rowshon left the marital home and went to live in a domestic violence shelter with her daughter. The Applicant has given evidence that his landlady Ms Nga had attempted to dissuade Miss Rowshon from moving into a domestic violence shelter due to the heightened risks posed by the pandemic. The move by Miss Rowshon into a shelter during the pandemic is indicative of the fear that she had of remaining living with the Applicant under the one roof.
The Applicant has submitted that he engaged in court mandated domestic violence rehabilitation for 12 months and complied with the requirements of a community correction order that was imposed by the Local Court for 12 months.[25] It is commendable that the Applicant adhered to these court mandated directives. It is argued that outside of his single offence, the Applicant has maintained behaviour consistent with being a person of good character. The Applicant submits that his good character is supported by the character references that he has provided.[26]
[25] T10 page 163,
[26] SM2 pages 3-39.
The police statement dated 20 March 2020 is referable in the bundle of documents.[27] At the conclusion of the police interview the Applicant was asked whether he participated in the record of interview with police of his own free will to which he responded yes. The Applicant was asked whether there were any threats made to him with respect to participating in the interview and the Applicant described the interview as being friendly and that he had no complaint in the way in which he was interviewed.
[27] Respondent’s Statement of Facts, Issues and Contentions, [16].
The Tribunal has given consideration to the police interview notes.
Those interview notes at page 7 indicate that the Applicant described the incident of domestic violence that occurred on 22 March 2020 as being precipitated by his wife’s behaviour, namely, irritating the Applicant, and shouting unnecessarily. The Applicant also described his wife as ‘disturbed’ and her behaviour as being ‘threatening’. The Applicant states that his wife was shouting, she was out of control, that he was concerned by the fact that they were living with other people. The Applicant described his wife’s behaviour as disturbing. The Applicant made submissions with respect to assaulting his wife. The police statement indicates that the tension between the couple escalated when she made a call to 000 with respect to the assault. At question 91 of the statement, the Applicant stated that his wife should not have been making complaints and that he was not a criminal. At question 94 the Applicant stated that he was the subject of blackmail and emotional blackmail. The Applicant admits to pushing his wife. The Applicant at question 103 notes that his daughter was present at the time of the arguing and the assault. At question 109 the Applicant states that his daughter was crying as a consequence of the argument and assault.
The Applicant at question 119 stated that he told his wife not to ring 000 and not to make trouble but she had a tendency not to listen and a tendency to make trouble for him. At question 147 the Applicant describes his wife’s shouting as demeaning to himself and their housemates. At question 167 the Applicant stated that he scolded his wife and used abusive language towards her. At question 199 the Applicant states that he may have hit his wife on the head two or three times. The Applicant claims at question 201 that he believes he hit his wife with an open hand and not a closed fist. At question 243 of the record of interview the Applicant states that he had assaulted his wife on a previous occasion. At question 293 the Applicant stated that he was trying to control the situation so that his wife was not shouting and so that co-tenants could live peacefully. The Applicant at questions 294-295 when questioned whether hitting his wife would make her stop shouting stated that it was his problem to ‘control himself’ and that he was hungry and irritated.
At question 321 and question 322 the Applicant described his wife is an accuser, somebody that lacked understanding, somebody that was destroying her own future and the Applicant stated that he did not make trouble. The Applicant in response to question 325 stated that he would be appreciative of any authority the police could provide with respect to his domestic situation. At question 326 seeking clarification of the Applicant’s previous response the Applicant stated that if his wife was making trouble or complaining unnecessarily, what circumstances and scenarios the police authority could assist.
At question 340 the Applicant was asked whether this was the first time his wife had called the police and he advised it was not and that she had called the police on a previous occasion in Bangladesh. When the Applicant was asked at question 343 whether his wife had called the police in Australia prior to this incident or whether this was the first time, he advised that he believed it was the first time. The Applicant at question 356 stated that his attempt to control the scenario with respect to the act of domestic violence was an attempt by him to preserve his reputation and ensure that their co-tenants would not be disturbed and could live peacefully. The Applicant also stated that he expected his wife to be cooperative because they shared a dependent child.
At question 359 the Applicant was asked whether he would apologise to his wife and the Applicant responded by saying that “actually, uh, it is very embarrassing for me to say sorry, sorry, sorry, from beginning.”
The Tribunal has carefully considered the Applicant’s response to the Respondent’s SFIC. The Applicant states that there is no place for domestic violence and that there should be zero tolerance. The Applicant in his response has variously described his wife as being medically sick, having an epilepsy history, and as having ‘other personal variants.’
The Applicant in his response further states that at the time of the offending his wife “was not doing her job” both he and their daughter were hungry, his wife was not cooking them food and that his wife was “alluring me to be engaged into conflict because at her 35 having womanly health issues including epilepsy”.
The Applicant’s responses to police questioning and to the Respondent’s SFIC are indicative of the fact that the Applicant has limited insight into his offending. The Applicant at the police interview and in responding to the Respondent’s SFIC regularly asserts that the offending came about because of his wife’s behaviour. Her failure to provide food to the Applicant and his daughter, her shouting behaviour, her threat to call the police to report the initial assault, her purported epilepsy, her ‘mind switching’ and her general behaviour and what the Applicant describes as emotional blackmail.
The evidence before the Tribunal indicates that the offending was not a one off or isolated incident and that there had been cause for the Applicant’s wife to call the police with respect to the Applicant’s behaviour in Bangladesh and that prior to the incident of 22 March 2020 there had been other instances of domestic violence in Australia.
The Applicant also stated that he placed significant weight on the two references provided at review with respect to his character.
One reference was provided from Lynda Shrimpton, a neighbour in Macquarie Park, who has purportedly known the Applicant for 3-4 years. Ms Shrimpton does not articulate in her reference of 1 July 2023 the basis on which she has known the Applicant (apart for the fact they were living in the same area) or the basis of her observations that the Applicant is a ‘kind and loving person’. The reference does not refer to the nature of the offending and just refers to a criminal history. The reference fails to provide details as to how Ms Shrimpton had formed the view about the Applicant with respect to his profession and his dedication to work and family.
The second reference from Ms Christina Nga is dated 7 July 2020. The reference notes that Ms Nga was a real estate business operator and had known the Applicant for nine months since November 2019. She knew the Applicant through their association as landlord and tenant. Ms Nga states that she was aware of the Applicant’s aspiration to have his wife and daughter in Bangladesh join him in Australia where the Applicant was working as a software developer. There is no reference to the Applicant’s offending by Ms Nga in her reference and whether the offending was out of character and the reference is general in nature.
The Tribunal accordingly gives limited weight to the character references provided by the Applicant for the reason that neither makes reference to the Applicant’s domestic violence offending or to the criminal sanctions imposed upon the Applicant and hence they do not proffer an opinion as to whether or not the offending was out of character.
The Instructions provide that the amount of time that has passed since an offence and conviction is a relevant consideration when determining if an Applicant is of good character. In this matter the Applicant’s offending occurred on 22 March 2020 and more than 4 years has passed since that time. The evidence indicates that the relationship between the Applicant and his wife appears to have broken down as the Applicant in his evidence has advised that he pays child support through the child support agency for his minor daughter.
The Tribunal notes that the offending was not the first time that the Applicant has engaged in domestic violence against his wife. The evidence indicates that there had been unreported instances of domestic violence in Australia prior to the offending of March 2020, and that the Applicant’s wife had called the police in Bangladesh with respect the Applicant whilst the couple were residing in that country. This is indicative of a pattern of behaviour exhibited by the Applicant over an extended period of time.
The Applicant has demonstrated little insight into the gravity of his conduct and subsequent offending, despite acknowledging that Australia has zero tolerance for domestic violence in any guise. The material before the Tribunal indicates that the Applicant has provided considerable evidence that his conduct that occurred on 22 March 2020, and prior to that date was attributable to the actions of his wife due to her shouting, disturbing their co-tenants, not providing he and his daughter with food despite the Applicant being hungry and irritable. He also states that his actions were attributable to his wife’s purported epilepsy, her medical conditions and what he describes as her ‘personal variants’ and ‘mind switching’. Indeed as has been noted at paragraph 42 above the Applicant in his response to the Respondents SFIC stated that “ “I have enduring moral qualities over the 4 years since my case which I find NOT a domestic violence but a defence while my wife endangering my shared house tenancy, career, reputation etc because of her medical sickness as well as other abusive influence like advice from family members, neighbours and friends.” This is clearly indicative of the fact that the Applicant has been unable to conceive of his actions on the day of the offending to be in the realm of domestic violence but rather that it fell into the realm of defence.
The Tribunal notes that the evidence suggests that the Applicant and his wife’s relationship appears to have come to an end. The Tribunal notes that the Applicant has failed to express remorse for his actions or been able to find it within himself the capacity to apologise to his wife for the offending.
The Tribunal finds that these factors when cumulatively considered lead it to find that the Applicant, at the time of this decision, has failed to demonstrate he possesses the enduring moral characteristics which could lead it to a finding that he is a person of good character. The offence of domestic violence is an offence for which the federal government and all state governments and indeed the Australian populace have zero tolerance for, and the offending of March 2020, despite its occurrence over 4 years ago, was significant. The offence led to a charge of common assault and strict conditions imposed with respect to the imposition of an extended apprehended violence order and engagement in an extensive domestic violence program. This was not an isolated incident, but as noted a pattern of behaviour exhibited by the Applicant both in Bangladesh and Australia, behaviour for which the Applicant has failed to demonstrate contrition and insight.
The Applicant’s offending and conduct does not preclude a finding of good character at some time in the future. However, having regard to the evidence before the Tribunal, the Tribunal cannot be positively satisfied the Applicant is of good character at this time and the decision under review will be affirmed.
DECISION
For the reasons outlined above, the decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 25 July 2023 is affirmed.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of
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Associate
Dated: 22 July 2024
Date of hearings: 9 and 19 July 2024 Solicitors for the Applicant: Self Represented Solicitors for the Respondent: Ms Gabrielle Ho, Clayton Utz Solicitors
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