Rasouli and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 2435
•1 June 2021
Rasouli and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2435 (1 June 2021)
Division:GENERAL DIVISION
File Number: 2018/6842
Re:Ahmad Rasouli
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:1 June 2021
Place:Brisbane
I affirm the decision under review.
.................................[SGD]...................................
Deputy President Dr P McDermott RFD
CATCHWORDS
CITIZENSHIP – application for Australian citizenship – refusal of application – Australian Citizenship Act 2007 (Cth) paragraph 21(2)(h) – whether satisfied that the applicant is of good character at the time of the decision on the application – domestic violence – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Domestic and Family Violence Protection Act 1989 (Qld)
Domestic and Family Violence Protection Act 2012 (Qld)CASES
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Al Hashimi and Minister for Immigration and Citizenship (2012) 130 ALD 640; [2012] AATA 534
Ghamraoui and Minister for Immigration and Border Protection [2016] AATA 254
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Repatriation Commission v Warren (2007) 95 ALD 606; [2007] FCA 866
Zheng v Minister for Immigration and Citizenship (2011) 121 ALD 372; [2011] AATA 304REASONS FOR DECISION
Deputy President Dr P McDermott RFD
1 June 2021
INTRODUCTION
This is an application for the review of a decision of a delegate of the respondent to refuse the applicant becoming an Australian citizenship on the basis that the delegate was not satisfied that the applicant was a person of good character at the time of the decision, as required by paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).[1]
[1] Exhibit A, T-Documents, T1.
BACKGROUND
The applicant and his former wife were married in November 2010 in Afghanistan.[2]
[2] Applicant’s Statement of Fact, Issues & Contentions dated 6 January 2020, pp. 1-2.
The applicant first entered Australia on 12 February 2012 on a provisional spouse visa (subclass 309).[3]
[3] Exhibit A, T-Documents, T2.
On 23 July 2013, the applicant was granted permanent residence.[4]
[4] Exhibit A, T-Documents, T2.
On 27 May 2016, the applicant lodged an application for Australian citizenship by conferral.[5]
[5] Exhibit A, T-Documents, T4.
On 29 May 2017, the respondent, then known as the Department of Immigration and Border Protection, invited the applicant to provide further documentation, including the Declaration of Service Form 1399.[6]
[6] Exhibit A, T-Documents, T6.
On 30 May 2017, the applicant completed the Declaration of Service Form 1399,[7] however, it was incomplete.[8] The applicant relodged a complete Declaration of Service Form 1399 on 15 June 2017.[9]
[7] Exhibit A, T-Documents, T7, p. 193.
[8] Exhibit A, T-Documents, T8.
[9] Exhibit A, T-Documents, T9.
On 3 September 2018 the Department of Home Affairs invited the applicant to comment on adverse information including the Australian Criminal Intelligence Commission “Check Results Report” generated on 3 September 2018 at the request of the Department of Home Affairs. [10] The report disclosed the applicant’s contravention of a Domestic Violence Order (Protection Order) (DVO) in 2014 and, while no conviction was recorded, the applicant was subject to a 12-month good behaviour period with a $500 recognisance.[11]
[10] Exhibit A, T-Documents, T10.
[11] Exhibit A, T-Documents, T10, p. 212.
On 19 November 2018, a delegate of the Minister for Home Affairs made a decision to refuse the applicant’s application for Australian citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (“the Act”).[12] The delegate was not satisfied that the applicant satisfied the requirements of paragraph 21(2)(h) of the Act at the time of the delegate’s decision.[13]
[12] Exhibit A, T-Documents, T2.
[13] Exhibit A, T-Documents, T2, p. 16.
On 20 November 2018, the applicant made an application to this Tribunal for review of the decision of the delegate to refuse the applicant becoming an Australian citizen.[14]
[14] Exhibit A, T-Documents, T1.
COURT HISTORY
On 28 May 2012 the Magistrates Court of Queensland at Holland Park made a DVO against the applicant.[15]
[15] Exhibit A, T-Documents, T11, pp. 217-220.
On 29 January 2014 the applicant appeared before the Magistrates Court of Queensland at Beenleigh for a contravention of a DVO.[16]
[16] Exhibit F, Annexure B, p. 13.
On 14 August 2014 the Magistrates Court of Queensland at Richlands made a DVO against the applicant.[17]
[17] Exhibit A, T-Documents, T11, p. 211.
On 15 August 2017 the Magistrates Court of Queensland at Beenleigh made a DVO against the applicant.[18]
[18] Exhibit A, T-Documents, T11, pp. 222-224.
In evidence is the Check Results Report dated 3 September 2018 which contains the applicant’s disclosable court history.[19]
[19] Exhibit A, T-Documents, T10, pp. 211-212.
AUSTRALIAN CITIZENSHIP ACT 2007 (CTH)
Section 20 of the Australian Citizenship Act 2007 (Cth) (“the Act”) contains the requirements for becoming an Australian citizen:
Requirements for becoming a citizen
A person becomes an Australian citizen under this Subdivision if:
(a) the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and
(b) if the person is required to make a pledge of commitment to become an Australian citizen -- the person makes that pledge.
Note: Sections 21 to 25 deal with the Minister approving the person becoming an Australian citizen.
Sections 26 and 27 deal with the making of a pledge of commitment.
Section 21 of the Act provides for the application and eligibility requirements for Australian citizenship and relevantly provides:
Application and eligibility for citizenship
(1)A person may make an application to the Minister to become an Australian citizen.
Note 1: Subsections (2) to (8) deal with eligibility.
Note 2: Section 46 sets out application requirements (which may include the payment of a fee).
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act relevantly provides:
Minister’s decision
(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.
Note: The Minister may cancel an approval: see section 25.
(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).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
DOMESTIC VIOLENCE ORDERS
The Magistrates Court of Queensland has made three DVOs against the applicant.
On 28 May 2012 the applicant attended upon the Magistrates Court of Queensland at Holland Park which made a DVO against the applicant.[20]
[20] Exhibit A, T-Documents, T11, pp. 217-220.
The application contained the following details:[21]
[21] Exhibit F, Annexure B, p. 50.
19.A Details of most recent incident (include dates if possible):
At approximately 11:55pm on Thursday the 25th day of May 2012 a male attended the Upper Mount Gravatt Station counter in a very distressed state. The male initially stated to Police he had reached his limit and he wanted to kill himself. Police obtained the male’s details and he further stated to Police him and his wife had been arguing and she was outside in the car. Police spoke to the wife (aggrieved). During the conversation with Police the aggrieved stated at approximately 8:50pm tonight (25/5/12) her and the respondent were on their way to the movies and a verbal argument took place. She further stated that after she parked the car and got out the respondent became aggressive. The aggrieved said “If you try to hurt me I will let the Police know”. The respondent replied “I’m not scared”. The respondent then grabbed the aggrieved on the arm and told her to “get back in the car”. The aggrieved ignored the respondent and walked towards the shopping centre. After leaving the shopping centre the aggrieved could see the respondent was still upset. On the drive back to their home address another verbal argument took place between the aggrieved and respondent. The aggrieved put in her headphones so that she did not have to listen to the respondent. The respondent ripped the headphones out of the aggrieved’s ears and continued to yell at her. Whilst on Warrigal Road the aggrieved observed the respondent was crying. The respondent suddenly began to drive extremely fast and erratically causing the aggrieved to fear for her life. Due to the nature of the respondent driving the aggrieved was concerned he may crash the vehile [sic] and injure her. The aggrieved stated to Police “He (the respondent) was driving so fast that I couldn’t speak, I was very shocked and scared. He was driving very dangerously and saying nothing”. He then drove straight to the Police station. Whilst at the Station Police observed cuts to the aggrieved’s left forearm. The aggrieved stated to Police the respondent had cut her with the knife a few weeks ago. Whilst at the Police station the respondent stated to Police “I couldn’t handle it anymore, I just wanted to kill myself”. Due to the respondent’s state of mind Police contacted QAS who attended the station and transported the respondent to PA Mental Health Ward for immediate Emergency Examination Order (EEO).
19.B Dates and details of the history of domestic violence:
The aggrieved stated to Police approximately 2 weeks ago her and respondent were involved in a verbal argument at their home address which escalated and became physical. The Respondent allegedly used a knife causing injury to the aggrieved’s left forearm (injuries have been photographed by Scene’s [sic] of Crime officer).
The aggrieved further stated to Police approximately 2 months ago after a verbal argument between the aggrieved and respondent whilst at their home, the respondent went into the kitchen and smashed a glass. Due to the escalation of Domestic Violence occurring Police have concerns for the welfare of the aggrieved.
19.C Why do you believe that domestic violence is likely to occur again or a threat is likely to be carried out?
Due to the escalation of Domestic Violence occurring Police have concerns for the welfare of the aggrieved.
On 14 August 2014 the applicant attended the Magistrates Court of Queensland at Richlands which made a DVO against the applicant.[22]
[22] Exhibit A, T-Documents, T11, p. 211.
The application contained the following details:[23]
[23] Exhibit F, Annexure B, pp. 76-77.
The respondent Ahmad Khalid RASOULI […] and the aggrieved […] have been approximately married for 4 years. They first lived together in a residence in […] and have just moved to their new residence […]. They live by themselves at this residence.
On Wednesday the 13th of August 2014 Police were called to […] in relation to a domestic violence incident.
Upon arrival they observed the respondent talking in another language in an aggressive manner to the respondent and her mother out the front of the job address. Police conducted a search of the house of which they did not observe any damage to property.
The Aggrieved and the Respondent were separated and versions were obtained from both parties.
The Aggrieved stated:
Q: How fearful of your partner are you?
A: Very fearful, He will slap and choke. He didn't let me out.
Q: How often does this occur?
A: Last time was about 12 months ago. But lately it has been happening again.
Q: How do you describe your relationship?
A: Married for almost 4 years.
Q: Do you have any children?
A: No.
Q: What happened yesterday?
A: I arrived home at 930pm [sic] when I opened the door he meet me inside and he pulls me. He grabbed my arm above the elbow to turn me around to him. I told him "l am not in the mood to talk." I could see he was very aggressive His Tones and Voice - Very upset. Any excuse to lash out but I was trying not for this to happen.
He said "I need to talk to you". I told him that things in our relationship aren't like what he says they are.
He told me "Open your mouth, take out your tongue!" his tone was building with aggression. "You will be a better person without your tongue". He was holding me down on the floor sitting and would not let me up.
He received a phone call and I got up. He got up He got off the phone and he came at He released me. I was across the room from him. I was on the couch and he came close and said "I'm not feeling well, I'm in a bad mood, I have problems."
Then he held me I couldn't leave the couch. I told him "this is too much, you have pushed me this far". He held me down. He lashed out and started slapping me with two hands, like he pushing with force to put me pack [sic] into the seat. He fingers clipped my face as I moved away from him slapping my face. He then choked me with both hands causing me to stop breathing. I forced him off me, he released his grip. Then with one hand he my lip and twisted it causing pain. I pushed him away and he released.
He got up and said he was going to break everything. Then he left.
I was going to call police, but he had left. It was about 10.30pm, I didn't know what else to do.
Q: When did all start again?
A: he returned home at about 3am. He was banging on the door for about 10-15 mins. Then stopped.
Q: What happened when you woke up this morning?
A: I was woken up by banging on the front door. I opened the door for him. He runs after me and grabs me, I have the keys and he hits my hand with the key. He used a closed fist and hit very hard. I didn't let go. He stood in front of me yelling "I have had enough, I am going back to Afghanistan". He held me against the doors I couldn't leave. He was screaming lots and was really angry. He was recording on his phone. He slapped me again on the face causing me to drop and cry. I then got up and went straight to the car.
Police observed the aggrieved to be visibly upset and shaken. She was holding back tears during the statement. Police also observed swelling to the right side of the aggrieves [sic] lip, where she stated the respondent has grabbed it.
The respondent was spoken to and stated, On Monday we moved from […] to […].
Monday she asked me to bring her coffee and blu-tac because I was going to the bank.
I then called her as the bank was closed and I told her I was getting blu-tac, I was stressed and didn't tell her about the coffee. I then came home with blu-tac and coffee and some cake. But she was cross because I didn't mention the coffee.
On Tuesday she was using bad words and ignoring me. I asked her to clear the other house because we were handing over the keys. She told me to fuck off. This happened in the morning.
Tuesday afternoon when I returned from the Sunshine Coast she was angry with me and using bad words. We had issues over the house keys and I had called my Mother in-law to ask her to ask my wife to leave me alone.
When I got home she grabbed my shirt and said "why you call my Mother why you call my Mother".
I said "I call her to explain my situation" This happened around 2:30pm.
She kept fighting wanting to do violence with me.
I then went out to work, came back at 7:30pm. I then left the house went to Nando's and South Bank, after more fights.
When I came home at about 11:00pm but the house was locked. I knocked for about 2 hours but there was no answer.
I tried calling, SMSing, everything, but no answer.
I opened the garage door and slept there. I froze there because there was nothing in the garage.
This morning I woke up and knock the door and she answered. I knock for about 10-15 minutes. I said please can I have one of the keys. She said “no, I don't want you in my house, get out".
I then speak to her louder. She then called her Mum saying "he's hitting me, he's pushing me, my face is swollen. She was doing a drama.
She then went and locked herself in the car. I then video her in the car because she telling her Mum things that were not true. I then went inside and had a shower, then I come back out and her Mum was here and then you guys arrived. She was also using bad words. She asked her Mum to tell me not to run away.
Police believe a domestic violence order is required to protect the aggrieved. A previous Domestic Violence Order has expired in May 2014. The aggrieved stated to police that since this time the respondent has become more aggressive to the point where she has called police on this occasion. The respondent and the aggrieved will still be residing together. Police believe an order will assist in the respondent being of good behaviour and not committing acts of domestic violence towards the aggrieved.
On 15 August 2017 the Magistrates Court of Queensland at Beenleigh made a further DVO against the applicant.[24] The circumstances of the DVO concerned the complaint of the former wife of the applicant that he was driving his car at 110 kilometres per hour to a “surprise” location which was an Indian restaurant. His former wife wanted to know where he was driving to and she said that the applicant told her “we are going to hell and I will not spare you”. The application for the DVO also states: “Police offered a referral to the respondent who didn’t accept. Advice given. No witnesses. No charges of assault made as there was no official complaint made and there is conflicting versions from both the aggrieved and the respondent”.
[24] Exhibit F, Annexure B, pp. 20-21.
DOMESTIC VIOLENCE ORDER CONTRAVENTION
On 20 May 2013, the applicant attended upon the Magistrates Court of Queensland at Beenleigh. The applicant was charged with the contravention of the DVO that was issued on 28 May 2012 by the Magistrates Court at Holland Park. At the hearing the applicant did not dispute the following facts in relation to the charge:[25]
The informant in this matter is the aggrieved of a Domestic violence order issued by the Holland Park Magistrates Court on the 28th day of May 2012. The Deft in this matter, Ahmad Khalid RASOULI is the respondent of a DVO, which was issue by the Holland Park Magistrates Court on the 28th day of May 2012, and was present in court and served with the DVO that same day. This matter involves a breach of condition 1 to be of good behaviour and not commit domestic violence.
At about 12:08am on Friday the 8th day of May 2013, Police from the Springwood Station attended […] as a result from information from the informant that domestic violence had just occurred at the address.
Upon arrival, Police TUW the informant and the Defendant and separated both parties to obtain the version of events. The informant stated that the defendant told her to turn off the lights otherwise he would use physical violence. After arguing about the lighting the informant attempted to call her mother when the defendant slapped her three times with an open hand, once one each side of the informants [sic] face and once on the back of her head. The informant gave no permission for the defendant to hit her.
The defendant made admissions to slapping the informant several times with an open hand on the face. The Defendant further stated that he was served a copy of the DVO and he knew the order was current. The defendant had no lawful reason or excuse for breaching the Order.
A short time later the Defendant was issued with a Notice to Appear directing him to appear the Beenleigh Magistrates Court on the 5ht day of December 2013.
[25] Exhibit F, Annexure B, p.13.
TRAFFIC HISTORY
The respondent has summarised the applicant’s traffic history as follows:[26]
(a)16 January 2020 – exceed speed limit in speed zone by less than 13 km/hour (1 demerit point);
(b)19 September 2018 – demerit points warning letter sent;
(c)18 March 2018 – failed to stop at red light (3 demerit points);
(d) 19 December 2017 – exceed speed limit in speed zone by less than 13 km/hour (1 demerit point);
(e)30 March 2016 – demerit points warning letter sent;
(f)7 March 2016 – exceed speed limit in speed zone by less than 13 km/hour not more than 20 km/hour (3 demerit points);
(g)1 February 2015 – exceed speed limit in speed zone by less than 13 km/hour (1 demerit point).
[26] Respondent’s Post-Hearing Submissions dated 18 May 2020, at [12] and Annexure B.
PSYCHOLOGICAL EVIDENCE
On 11 July 2020, Ms Madonna Steinohrt, Registered Psychologist, gave a report at the request of the applicant through a legal representative.[27] As to the material available to her, Ms Steinohrt remarked that the applicant had provided to her “all the supporting documents (affidavits and official correspondences) in his application”. Ms Steinohrt reported that the applicant was referred to her by his General Practitioner on 6 June 2020 for “psychological treatment of generalised anxiety”. Ms Steinohrt opined that the history given by the applicant was credible and that his status as the “victim” in the situation was consistent with scientific literature.
[27] Exhibit H.
As to the treatment she had given to the applicant, Ms Steinohrt reported:
I have only briefly administered psycho-education and solution-focused counselling on the following dates: 8 June 2020; 22 June 2020; 5 July 2020… Our initial sessions mostly covered a comprehensive and qualitative interview of his personal history, specifically, the background details of his marriage … and the domestic violence history. The psycho-education session included explanation of my opinion of his stress symptoms consistent with his claims as a domestic violence victim. The solution-focused counselling covered advice on how to manage his symptoms.
Ms Steinohrt diagnosed the applicant as having “Adjustment Disorder with Anxiety and Depression” which was “consistent with the likely psychological impact on a domestic violence victim”. Ms Steinohrt in her report remarked that the applicant reported the following symptoms:
·intrusive thoughts and memories of the trauma experienced as a domestic violence victim (i.e. how she mocked him and repeatedly threatened him of deportation were he not to comply with her demands; how she engaged in self harm as a form of emotional blackmail)
·hypervigilance and anxiety response to cues associated with the trauma (i.e., writing about the domestic violence history in relation to his response to the Department and AAT);
·avoidance symptoms (i.e. avoiding his ex-wife and her family; Ahmad relocating and hiding information of his whereabouts from his ex-wife and in-laws; avoiding to deal with domestic violence issues relevant to his citizenship application causing delay and psychological distress).
Ahmad demonstrated agitation when he talked about his marital history. He re-lived his nervous emotions when he spoke about the abuse he experienced. He cried expressing sadness and guilt for the shame he has brought on to his ex-mother-in-law and his ex wife’s family, explaining the values of Afghan culture, and considering the kindness they afforded to him when he was married to his ex-wife…
Ms Steinohrt remarked that she was aware of the three DVOs, the history of which had been provided to her verbally by the applicant. Ms Steinohrt considered relevant the applicant’s culture, his immigration status, and his status as a victim. Ms Steinohrt remarked that:
Ahmad intelligently provided me with background explanation of the diversity in the processes he used for making decisions about his marriage and the degree of force and choice when deciding between preserving his marriage or applying for Protection Order against his ex-wife; and the effect of compliance with cultural norms on marriages as advised by his own family and his in-laws; his lack of options considering that he has no family support in Australia and the perceived danger of leaving his ex-wife, considering her threats to set him up for legal troubles.
Given his first experience of reporting to the police about his wife’s abusive treatment against him, and how she allegedly twisted the truth (e.g. claiming her self inflicted cuts in her arms were inflicted by him), and how he remained legally unprotected, unable to prove domestic violence victimisation in spite of seeking help at the police station, Ahmad was convinced that it was pointless to challenge the Court Order. In my professional opinion, Ahmad’s failure to defend himself against accepting the Order was more a reflection of his entrapment at the time and the subsequent contraventions were related to the psychological impairment of his normal functioning caused by the traumatization at the time of entrapment in an abusive marriage.
Ms Steinohrt opined that the “research literature on domestic violence suggests that perpetrators commonly believe with all their hearts that they are the victim” and considered that the history given to her by the applicant illustrated the “dynamics of power and control exercised by his ex-wife and the psychological entrapment on the part of Ahmad as a victim”. Ms Steinohrt then concluded:
… Ahmad’s account of his domestic violence victimisation is consistent with the description of domestic violence dynamics where the abuser uses basic techniques of oppression - demonstrations of omnipotence; degradation and the enforcement of trivial demands; induced debility or exhaustion; cultivation of anxiety and despair; alternation of punishment and reward. His psychological condition is also consistent with sufferers of trauma and based on Ahmad’s personal life history, the only trauma he suffered was as a victim of domestic violence whilst married to […].
In my professional opinion, Ahmad Rasouli’s prognosis is good. The likelihood of a good prognosis could be facilitated by a favourable outcome of his citizenship application. A successful outcome would be seen by Ahmad as a validation of his domestic violence victimisation and the achievement of some degree of justice. Ahmad continues to enjoy positive social support from his friends and new partner. He is still highly reactive to external cues but manages to control his emotions to participate effectively in the interview. He is very keen to continue therapy and maintains focus on his vocational aspirations. He uses his spiritual faith as a positive coping strategy…
THE HEARING
The hearing of this application was held on 24 February 2020. The hearing was adjourned to a date to be fixed in order to provide the applicant with an opportunity to lead further evidence in respect of the matters raised during the hearing.
Further documents were sought by the respondent under summons which were included with the respondent’s post-hearing submissions lodged with the Tribunal on 18 May 2020 and marked “Annexure B”.
A further directions hearing was held on 15 July 2020 in which the parties were given leave to provide further evidence and submissions. It was open to the parties, following the provision of this further material, to request that this application be listed for a further oral hearing to lead further evidence from any witnesses upon which the parties intended to rely. exhibits H and I were tendered, being photographs of the applicant’s head and a report of Ms Steinohrt dated 11 July 2020.
On 24 September 2020, a further directions hearing was held at which it was agreed that the parties had provided to the Tribunal all material upon which they intended to rely and neither party sought to lead further oral evidence. The parties consented to the determination of the application on the basis of the material now before the Tribunal without further hearing. Exhibits J, K, L and M were tendered being a justices examination order dated 28 May 2012, two further character references, and photographs of the applicant’s medical prescription for anti-depressants.
ISSUES
I must determine whether the applicant is of good character at the time of this decision, in accordance with section 21(2)(h) of the Act.
CONSIDERATION
I am not satisfied that the applicant was of good character at the time of the decision of the delegate. This is because before the delegate made the decision, the delegate had before them information that the applicant was the respondent to three DVOs and had committed the offence of contravening a DVO. I am also not satisfied that the applicant is of good character at the time of the decision of this Tribunal. This is because the evidence that the applicant has given before the Tribunal discloses not only that the applicant still does not accept responsibility for his acts of domestic violence, but also that he now denies even committing domestic violence, despite the fact that at the relevant times he made admissions to the police that he committed domestic violence.
Domestic Violence Orders
First Domestic Violence Order
The DVO that was made by the Magistrates Court on 28 May 2012 had recited that the court was satisfied that the applicant had committed an act of domestic violence against his former wife and that the applicant was likely to commit an act of domestic violence again or was likely to carry out a threat of domestic violence.[28] The applicant had ripped the headphones out of his former wife’s ears whilst he was driving.[29] His former wife was concerned about the erratic driving of the applicant and she feared for her life. There was an allegation that the applicant had smashed a glass after an argument. There was another allegation that previously, the applicant had cut his former wife with a knife. The police officer who made the application had specified that the applicant had used a knife as a weapon during an incident of domestic violence. The “scenes of crime” police officer had photographed the injuries of the former wife’s left forearm. In giving evidence before the Tribunal the applicant also denied cutting his former wife’s arm. The applicant remarked: “I have never ever done that in my life”.[30] I do not accept this denial of the applicant. The appropriate time for challenging the allegation that he cut her arm was when the application was heard by the Court and not now before this Tribunal. I am satisfied, on the balance of probabilities, that the applicant committed this act of domestic violence by cutting the arm of his former wife. This particular conduct of the applicant is indeed concerning and my concerns are not relieved in any way by the evidence now led by the applicant that he did not commit this act.
[28] Exhibit A, T-Documents, T11, p. 217.
[29] Exhibit F, Annexure B, p. 50.
[30] Transcript, p. 21.
Contravention of Domestic Violence Order
The DVO that was made against the applicant on 28 May 2012 under the now repealed[31] Domestic and Family Violence Protection Act 1989 (Qld) was in force until 27 May 2014. It was in force on 9 November 2013 when the applicant had contravened the DVO on 8 November 2013.[32] I have carefully considered the circumstances of the applicant’s contravention of the DVO. The information before the Court was that the applicant had threatened to use physical violence against his former wife and had slapped her three times with an open hand.[33] The record of the facts is that the applicant had made admissions about slapping his former wife “several times with an open hand on the face”.[34] The applicant was aware that he had been served with the DVO and that he knew that the DVO was then in force. Before the Tribunal, the applicant was asked about these admissions that he made to the police. The applicant remarked: “I don’t remember the conversation I had with the police, but I can say this. I remember that I have never ever - how can I slap somebody, like especially if she’s my wife”.[35] I do not consider that this explanation is credible. The applicant had the right to contest these allegations before the court and did not contest the allegations after he received legal advice. It is difficult to accept his evidence that he does not remember his admissions that he made to the police about having slapped his former wife. He certainly would have understood the assertions that were made against him. I have no reason to doubt that he made those admissions when he was interviewed by the police. It is common for police interactions with the general public to be electronically recorded, or at the very least, contemporaneous written notes are taken by the officer. Certainly, there is no cogent evidence before the Tribunal to indicate that I should not accept that the written account of the police officer contained in the Court Brief[36] that the applicant made this admission.
[31] Domestic and Family Violence Protection Act 2012 (Qld) s 194.
[32] Exhibit A, T-Documents, T10, p. 212.
[33] Exhibit F, Annexure B, p. 13.
[34] Exhibit F, Annexure B, p. 13.
[35] Transcript, p. 29.
[36] Exhibit F, Annexure B, p. 13.
Second Domestic Violence Order
The DVO that was made against the applicant on 14 August 2014 was made under the Domestic and Family Violence Protection Act 2012 (Qld). That order relates to an incident on 12 August 2014[37] when the police were called to the residence of the applicant.[38] When the police arrived at the residence, they noticed that the applicant was talking aggressively in another language to his former wife and her mother. The police also observed that the former wife was “visibly upset and shaken”. The police asked his former wife: “How fearful of your partner are you?” She answered: “Very fearful. He will slap and choke. He didn’t let me out”.[39] I have inferred from this statement that the applicant would not let his former wife leave the house. The former wife then stated that the last time he acted in this fashion was “about 12 months ago. But lately it is happening again”. The applicant was holding his former wife on the floor and would not let her up. The applicant’s former wife was held on the couch and she couldn’t leave the couch. The applicant also choked his former wife with both of his hands which caused her to stop breathing. The applicant also told his former wife: “Open your mouth. Take out your tongue” and that “you will be a better person without your tongue”.[40] The former wife stated that the applicant had punched her with a closed fist. He had hit her face and her lip was swollen. I have come to the conclusion that, on the balance of probabilities, these allegations are substantially true. I have had regard to the fact that the applicant did not avail himself of opportunity to contest the application by his former wife for a DVO. I have also noted that the police observed the distress of the former wife and the fact that when the police had arrived the applicant was speaking in an aggressive manner to his former wife and her mother.
[37] Reported on 13 August 2014.
[38] Exhibit F, Annexure B, pp. 16-18.
[39] Exhibit F, Annexure B, p. 17.
[40] Exhibit F, Annexure B, p. 17.
The conduct of the applicant on 13 August 2014 was concerning in a number of respects. The applicant had recently contravened the first DVO in the previous month and had apparently not appreciated the seriousness of a DVO. In slapping his former wife, in punching her, in choking her, in restraining her on a couch and in telling her to “Take out your tongue” and that “you will be a better person without your tongue”, the conduct of the applicant was disturbing to say the least. In the terms of the Domestic and Family Violence Protection Act 2012 (Qld), his conduct was certainly physically abusive (s 8(1)(a)); emotionally and psychologically abusive (s 8(1)(b)); threatening (s 8(1)(d) and coercive (s 8(1)(e)). It is also concerning that the applicant, in not letting her out of the house, was controlling or dominating his former wife who stated that she was very fearful of the applicant who had slapped and choked her (s 8(1)(f)). The applicant in not letting his former wife leave the house was depriving his former wife of her liberty (s 8(2)(d)).
Third Domestic Violence Order
In as recently as 2017, a third DVO was made against the applicant.[41] The applicant has made admissions in relation to the application for a DVO. The applicant, in giving evidence before the Tribunal, stated that he was driving his car at 110 kilometres per hour to a “surprise” location which was an Indian restaurant.[42] It is reported by the police officer that this was “on the M1 Freeway near the Beenleigh exit”.[43] The applicant stated that his former wife wanted to know where he was driving to and his former wife had informed the police that the applicant told her “we are going to hell and I will not spare you”.[44] I am satisfied that the applicant made that statement to his former wife because in giving evidence before the Tribunal he remarked: “I told her that, yes, we’re going to hell”.[45] In giving evidence before the Tribunal, the applicant admitted that he bit the hand of his former wife.[46] The applicant also remarked that he wanted to “scare her”.[47] The applicant asserted that he bit his former wife in self-defence because he claimed that she was strangling him.[48]
[41] Exhibit F, Annexure B, pp. 20-21.
[42] Transcript, p. 45.
[43] Exhibit F, Annexure B, p. 20.
[44] Exhibit F, Annexure B, p. 20.
[45] Transcript, p. 45.
[46] Transcript, p. 47.
[47] Transcript, p. 47.
[48] Transcript, p. 47.
The applicant likely committed an act of domestic violence when he told his former wife that they were going to “hell”. The applicant could certainly be seen to have made a death threat against his former wife. It is plausible that his former wife took the threat of “going to hell” seriously, especially considering the context in which this was said. When this was said, they were in a car travelling along the M1 motorway at 110 kilometres per hour. The former wife had also previously complained to the police that the applicant was driving dangerously. There is also in evidence the traffic history of the applicant which indicates that on a number of occasions he had exceeded the speed limit. The applicant informed the Tribunal that he was driving his former wife to an Indian restaurant when he said that they were going to hell. It is not apparent why he made such a threat when he was driving his former wife to an Indian restaurant. The conduct of the applicant in terms of the Domestic and Family Violence Protection Act 2012 (Qld) was certainly physically abusive (s 8(1)(a)) in biting his former wife. In effectively making a death threat against his former wife, his conduct was emotionally and psychologically abusive (s 8(1)(b)) as well as threatening (s 8(1)(d)). As the 2017 DVO was made by consent without admissions it would not be fair to the applicant for me to make a finding, as had been alleged, that the applicant had pinched the neck of the former wife on the strength of the assertions of his former wife. Before the Tribunal, the applicant had denied the allegations of his former wife that the applicant pinched her neck.
Assertion that his former wife is mentally unwell
The applicant has put forward a submission that his former wife is mentally unwell.[49] There is no cogent evidence before me that his former wife was mentally unwell. On the same day when the first DVO was made the applicant requested that a justices examination order be issued by a justice of the peace at the Magistrates Court.[50] Before the Tribunal, the applicant was asked whether he was informed of a diagnosis, he answered: “It is not that only I believe, her sister-in-law and everybody was telling me that she is a psycho”.[51] Even if his former wife was mentally unwell (which contention is not accepted), the applicant was not justified in committing acts of domestic violence against her.
[49] Applicant’s Statement of Fact, Issues & Contentions dated 6 January 2020, p. 2.
[50] Exhibit J.
[51] Transcript, p. 17.
The applicant did not call the family members of his former wife to give evidence concerning the mental health of his former wife. The applicant made a contention that the Department had prevented him from lodging any evidence from family members. The applicant in giving evidence remarked: “I was asked by the Immigration Department to not provide any statutory declaration by the members of their family or your relatives”,[52] he added “they told me to provide character reference letters but we will not accept character reference letters from the relatives or families”. The notice from the Department which invited him to comment on adverse information did not inform the applicant that he could not provide a reference from family members; all that the notice stated was that less weight would be given to references from family members.[53] I do not accept that the Department would have prevented him from lodging any letters from family members. Having regard to the fact that in 2004 the applicant completed a certificate in advanced levels of the English language,[54] and the fact that, before moving to Australia, the applicant went on to provide interpretation services in Afghanistan to clients including the United States Military and the European Union,[55] I do not consider it plausible that the applicant misread the Departmental notice. The applicant, in his declaration dated 11 October 2018, has stated that the brother of his former wife is “my best friend and he would always stick up for me”. However, the brother of his former wife did not provide the applicant with a declaration in support of his citizenship application. The applicant did not call the brother as a witness.
[52] Transcript, p. 17.
[53] T10, p. 209; Exhibit D.
[54] T7, 200.
[55] Applicant’s Statement of Fact, Issues & Contentions dated 6 January 2020, annexures 4-5.
The applicant provided two copies of a photograph, one with a marking on it, which he contends demonstrate that he was injured on the back of his head in 2016.[56] There is no evidence concerning the providence of these photographs. The photograph, which may have been taken by a hairdresser, is said to show a scar. The applicant also has produced a hospital record which records that he made a statement to the doctor in 2016 that he had an argument with his former wife, and that she threw a can of shoe polish at him which hit him “on the right side of the occiput”, being the back of his head.[57] There also is the following statement in the hospital records: “non distressed with pain, small lump to back of head”. The hospital record does not refer to any wound on the back of the head. It is difficult to conclude what happened on that evening as the former wife was not called as a witness. I do, however, accept that the applicant had an argument with his former wife on that day.
[56] Exhibit B, p. 3; Exhibit I.
[57] Exhibit F, Annexure B, pp. 107-108.
Assertion by applicant that he suffers from a mental condition
The applicant now asserts that he suffers from a mental condition because he is the victim of domestic violence. However, after the hearing of the application before the Tribunal the applicant filed a report dated 11 July 2020 from Ms Steinohrt, Registered Psychologist, in which she gave her opinion that the applicant warrants a diagnosis of “Adjustment Disorder with Anxiety and Depression” which is consistent with the likely psychological impact on a domestic violence victim.[58]
[58] Exhibit H.
In Repatriation Commissionv Warren,[59]KiefelJ remarked:
A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that manual and the criteria provided by it.
[59] (2007) 95 ALD 606 at [25].
The report of Ms Steinohrt does not identify the diagnostic instrument which Ms Steinohrt relies on to form her opinion. However, Ms Steinohrt does refer to intrusive thoughts and memories of the trauma experienced, hypervigilance and anxiety response, and avoidance symptoms.[60]
[60] Exhibit H, pp. 2-3.
It is apparent that the opinion of Ms Steinohrt is based upon the self-report of the applicant Ms Steinohrt refers to how the former wife of the applicant had “engaged in self-harm as a form of emotional blackmail”.[61] I do not accept that this information is correct. The police officer who made the application for a DVO had specified that the applicant had used a knife as a weapon during an incident of domestic violence and I have accepted that this is the case. Ms Steinohrt has based her opinion on the affidavits of the applicant and as well as the character referees who support the application for citizenship. However, I do not accept that the former wife of the applicant had engaged in self-harm.
[61] Exhibit H, p. 2.
Ms Steinohrt has given her opinion without being fully appraised of the history of domestic violence. She does not refer to the documentation concerning the applicant’s alleged conduct in the three DVOs that has been presented to the Court. While Ms Steinohrt is aware of the dates of the DVOs, she has not provided any commentary upon the allegations contained in the applications for those DVOs. The applicant is still subject to a DVO that is in force until 15 August 2022. There has been one occasion when the applicant was found guilty of the contravention of a DVO. Ms Steinohrt in her report has referred to “several subsequent contraventions of the Court Order”. Ms Steinohrt appears to be unaware that the applicant has made admissions of committing various acts of domestic violence from 2012 to 2017 which I have earlier mentioned.
Ms Steinohrt reported that “Ahmad provided me verbally with the relevant history of the domestic violence circumstances, which proved consistent with the written information in his affidavits”.[62] Ms Steinohrt noted that the applicant’s affidavits “contain detailed information on his relationship history and the circumstances detailing his experience of domestic violence as a victim”[63] (emphasis added). In the circumstances, it certainly appears likely that the opinion of Ms Steinohrt has been obtained only on the basis of material which would tend to support the applicant’s version of events. Ms Steinohrt has not directly addressed any of the incidents as alleged by the applicant’s former wife or the documents in which these accounts are found. These comments are not intended as any form of criticism of Ms Steinohrt. Certainly, Ms Steinohrt could only form her opinion on the basis of what information the applicant has provided to her.
[62] Exhibit H, p. 3.
[63] Exhibit H, p. 2.
Because Ms Steinohrt has not been fully appraised of the history of domestic violence committed by the applicant, I do not accept, on the information before the Tribunal, that the applicant is a victim of domestic violence. The applicant did not make a claim before the Tribunal that he was suffering from an adjustment disorder. There is no evidence of him receiving any treatment for a mental health condition before the hearing of his application before this Tribunal. The applicant had, as at 11 July 2020, only attended counselling with Ms Steinohrt on three occasions during June and July 2021.
Australian values
Deputy President Forgie in Zheng and Minister for Immigration and Citizenship[64] has observed that in an application for citizenship, there has to be consideration of whether the applicant has conducted herself or himself in a manner that accords with the values of society. Deputy President Forgie remarked that assistance can be derived from the preamble to the Act. The preamble provides that the Commonwealth Parliament recognises that persons conferred with Australian citizenship undertake to accept certain obligations including the obligation to uphold and obey the laws of Australia. The Australian values statement, which is incorporated in the application for citizenship, was signed by the applicant. That statement recognises that the responsibilities for citizenship include obeying Australian laws.[65] I consider that the applicant is not of good character because whilst he has been in Australia he has not conducted himself in a manner that accords with the values of our society. The applicant has committed domestic violence over a number of years, from 2012 to 2017. Domestic violence is certainly quite contrary to the values of our society.
[64] (2011) 55 AAR 94.
[65] Exhibit A, T-Documents, T4, p. 155.
Failure of applicant to declare his contravention of the Domestic Violence Order
In his application for citizenship the applicant answered “no” to the question of whether the applicant had been convicted of or found guilty of any offences overseas or in Australia.[66] The respondent in its statement of facts, issues and contentions raises the issue that the applicant had not, in his application for citizenship, disclosed the first two DVOs, nor had he disclosed his contravention of the first DVO.[67] This issue was quite properly brought to the attention of the applicant by the respondent during his cross-examination. The applicant was directed to his application where he answered “no” to the question of whether he had been found guilty of any offences overseas or in Australia. The applicant provided the following explanation of why he answered “no” on his application:
I haven’t done anything criminal. In this, the DVO is just an accusation, one thing. And secondly, it’s a lack of my knowledge that the contravention, your Honour. They told me in the court that this is nothing, don’t worry. Be - honestly, the people, they told me there. They said this is nothing, it’s not even showing up on your - sorry, what’s it called when the police - the police check. On anything. It’s nothing, they say it’s just there for a good behaviour bond.
[66] Exhibit A, T-Documents, T4, p. 150.
[67] Exhibit F, paras 40-44.
It was also put to the applicant during his cross-examination that he pleaded guilty to the contravention of the DVO. It was also put to the applicant: “So you were aware that you were found guilty of that offence”. The applicant responded:
Yes. When I went to the court, they have told me that this is not - this is not something this serious. Otherwise I would have fight it, your Honour. They told me it’s not going into your record, and this is not this - and also, they issued me, your Honour, a fine. Something, I believe, that they issued me a fine of $500. I might find it somewhere here. And a good behaviour bond.
I have previously mentioned that the applicant has asserted “I haven’t done anything criminal” and that “the DVO is just an accusation”.[68] It is concerning that the applicant does not appear to recognise the criminal nature of the contravention of a DVO. The applicant did not contest the allegations that were made against him. The comments that the applicant made before the Tribunal indicate that he does not regard his contravention of the DVO as serious. Before the Tribunal he asserted that he was told “this is not something this serious” and would not be revealed on a police check.[69]
[68] Transcript, p. 51.
[69] Transcript, p. 31.
I do not accept that the applicant would have been told that the contravention of the DVO was not serious and would not be revealed on a police check. This Tribunal has previously emphasised the serious nature of domestic violence. In Ahori and Minister for Immigration and Border Protection,[70] Senior Member Sosso (as he then was) remarked: “Domestic violence is a very serious matter”. Australia has international responsibilities to prevent domestic violence under the United Nations Declaration on the Elimination of Violence Against Women.[71]
[70] [2017] AATA 601 at [53].
[71] Domestic and Family Violence Protection Act 2012 (Qld), preamble (1).
I consider that the failure of the applicant to declare to the Department that he was before the Court for the contravention of a DVO indicates that the applicant is not of good character, particularly when the applicant asserted that his domestic violence conduct would not be detected on a police check. In Lachmaiya and Department of Immigration and Ethnic Affairs,[72] Deputy President McMahon emphasised that there are “overall requirements important in the administration of immigration”. The learned Deputy President made reference to the “observance of truth in dealing with officials in migration matters” as being an important consideration in evaluating whether a person is of good character.
[72] (1994) 19 AAR 148 at [154]-[155].
Character references
The applicant called two witnesses who gave evidence that the applicant was of good character and was not an aggressive person. Some other persons have provided statutory declarations to support the applicant.[73] One lady, who lived in New Zealand, was called by the applicant. She stated that she was in a relationship with the applicant for almost two years. She remarked: “I just don’t see him as that person that he has been charged or convicted”. She also stated that she had never seen him being aggressive or angry toward any person. This lady does not accept that the applicant has committed domestic violence as she remarked: “I fully support that he didn’t do what he is convicted of”. It is, however, apparent that this lady had not seen the court file of the applicant. One man stated that he had known the applicant since their childhood. This man was not aware that three DVOs had been made against the applicant. The tenor of the accounts provided by these witnesses and the persons who provided a statutory declaration is that the applicant would never commit a violent act. While I accept that these persons are sincere in their belief that the applicant is not a violent person, I cannot give any weight to their assertions that the applicant was not capable of committing domestic violence. This is because the applicant has admitted to committing acts of domestic violence such as by slapping the applicant and threatening her with death. I also cannot be satisfied that these persons who provided supporting evidence were meaningfully aware of the many allegations made by the applicant’s former wife against him, many of which were admitted at the relevant times by the applicant, and which are now in evidence before the Tribunal.
[73] Exhibit A, T-Documents, T11; Exhibit B; Exhibit E.
Employment
In Al Hashimi and Minister for Immigration and Citizenship,[74] Deputy President Hotop and Member Hogan, remarked that “’stable, gainful employment’ would reflect favourably on an applicant’s character”. The applicant, in his Declaration of Service dated 30 May 2017, has stated that since 1 February 2017 he was unemployed. However, in that document he stated that he had two previous business management positions. Some persons who provided character references have referred to a business ran by the applicant.[75] However, it is apparent that the applicant is now no longer in business.[76] This does not detract from his character having regard to economic circumstances. I do, however, accept the unchallenged assertion of the applicant that he has been driving for Uber since March 2018.
[74] [2012] AATA 534 at [53].
[75] Exhibit A, T-Documents, T11 pp. 225-226.
[76] Exhibit B, p. 5.
Acceptance of responsibility and rehabilitation
In Ghamraoui and Minister for Immigration and Border Protection,[77] Member Professor McCallum AO explained that mitigating factors include whether an applicant has accepted responsibility and shown remorse. In my opinion the applicant has a history of not accepting responsibility for his actions. He has denied that he has committed domestic violence despite making admissions to the police. He informed the Tribunal he has asserted that he received legal advice that “you have to plead guilty for this”.[78] I do not accept as plausible that a legal practitioner would have given the applicant such advice. Now before the Tribunal the applicant has remarked: “I should have fought all these allegations”.[79] This statement is indicative of the failure of the applicant to accept responsibility for his actions. A recent instance where the applicant has failed to accept responsibility for his actions is where he accused the police of lying about his failure in 2018 to stop at a traffic light, the allegations of the applicant were not accepted by the court. The applicant has demonstrated on a number of occasions that he will not accept responsibility for his actions.
[77] [2016] AATA 254 at [15].
[78] Transcript, p. 32.
[79] Transcript, p. 48.
The respondent has referred the Tribunal to the reasons of Deputy President Wright QC in Kakar and Minister for Immigration and Multicultural Affairs where the learned Deputy President remarked:[80]
When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender. (emphasis added)
[80] [2002] AATA 132 at [14].
The applicant’s reluctance to accept responsibility for his actions, along with the only small amount of psychological counselling he has undertaken,[81] indicate that the degree to which the applicant has rehabilitated is minimal. This is a factor which indicates that the applicant is not of good character.
[81] Exhibit H, p. 1.
CONCLUSION
In Ahori v Minister for Immigration and Border Protection,[82] Senior Member Sosso (as he then was) remarked: “In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting”. Senior Member Sosso added: “there would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violenceoffence is not a person of good character and not a person who deserves the conferral of Australian citizenship”. I respectfully adopt these remarks of the now learned Deputy President.
[82] [2017] AATA 601 at [53].
I recognise that it is to the credit of the applicant that he has had stable employment. It is also to his credit that he has previously held a motor dealer’s license and endeavoured to run a business. I also have had regard to the many positive character references provided by the applicant to the Tribunal, although I have earlier determined that I can only place limited weight on these statements due to the limited awareness of these references of the serious alleged conduct of the applicant toward his former wife. However, the applicant’s history of domestic violence, his continued failure of the applicant to accept responsibility for his actions of domestic violence, and his failure to express remorse for those actions, strongly demonstrate that the applicant is not of good character. As I have earlier recognised, domestic violence is a serious matter and ought to be treated as such by persons applying for Australian citizenship and by this Tribunal. A further factor which detracts from the character of the applicant is the applicant’s failure to declare to the Department his contravention of the DVO. On weighing up all these matters, I conclude that the applicant is not of good character at the time of this decision.
DECISION
I affirm the decision under review.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
……………………[SGD]…………………..
Associate
Dated: 1 June 2021
Date of Hearing: 24 February 2020 Decision Reserved: 24 September 2020 The Applicant: In person Solicitor for the Respondent: Ms Jaidi Liang, Clayton Utz
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