Re Sharma and Minister for Immigration and Border Protection
[2015] AATA 608
•19 August 2015
Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608 (19 August 2015)
Division
GENERAL DIVISION
File Number(s)
2014/6518
Re
Madhav Sharma
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 19 August 2015 Place Sydney The reviewable decision, being the decision of the delegate of the Minister to refuse Mr Sharma’s application for Australian citizenship, is affirmed.
............................[sgd]............................................
Deputy President J W Constance
Catchwords
CITIZENSHIP – good character – previous convictions – domestic violence – whether applicant has reformed – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24
Cases
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422Zheng and Minister for Immigration and Citizenship [2011] AATA 304
Secondary Materials
Australian Citizenship Instructions (Cth) issued 1 July 2015.
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
Mr Sharma applied for Australian citizenship by conferral in July 2014.
A delegate of the Minister refused Mr Sharma’s application in a decision dated 16 September 2014. The delegate was not satisfied that Mr Sharma was shown to be of good character for the purposes of the grant of citizenship.
Mr Sharma has applied to this Tribunal for a review of the delegate’s decision.
For the reasons which follow, the decision under review will be affirmed.
BACKGROUND
Mr Sharma is a citizen of Nepal and currently holds a permanent visa.
He first arrived in Australia on 24 January 2007. Police records[1] indicate that from 2011, Mr Sharma has been involved in at least four domestic incidents that brought about the involvement of the police. Each incident involved disputes between Mr Sharma and his eldest daughter. She was aged 17 at the time of the earliest recorded incident on 2 February 2011.
[1] Exhibit R2.
Police records of this incident indicate that Mr Sharma’s daughter alleged that Mr Sharma “had grabbed her arm whilst trying to steal her mobile phone off her”.[2] She also alleged that over the previous months Mr Sharma had broken one of her mobile phones as well as her ipod. The police report indicates that:
Police formed the opinion that no offence had occurred in this incident and the incident was simply a family dispute which was not being won by [the daughter], as such she contacted police. ... Police informed [Mr Sharma] that if he was to break any items belonging to his daughter, that is an offence and he could be arrested for that.[3]
[2] Exhibit R2, p.6.
[3] Exhibit R2, p.6.
Approximately four months after this incident, on 4 June 2011, police were once more called to Mr Sharma’s family home. Police records indicate that Mr Sharma contacted the police alleging that his daughter had assaulted him. The police noted that the focus of the dispute for Mr Sharma appeared to be that he regarded his daughter as being disrespectful as she refused to do as he wished. Police reported that Mr Sharma’s view was that she should not have a life beyond the family home, with the exception of her attending school and casual employment. After dismissing police suggestions of counselling, Mr Sharma demanded in the presence of police that his daughter leave home. Police noted that Mr Sharma “could not be reasoned with” and the police escorted Mr Sharma’s daughter to alternative accommodation. On taking Mr Sharma’s daughter to a friend’s house, the police were advised by the friend’s family that:
... this is not the first time [Mr Sharma] has thrown [his daughter] out of home. Further to this, they have advised police that the victim had previously disclosed to them that [Mr Sharma] had ordered her from the family vehicle recently during an argument whilst in Sydney, leaving her stranded at the time.[4]
The Police found that there were no grounds for an apprehended violence order and no evidence of any physical abuse. The Police held “nil fears for the immediate wellbeing of the victim”.
[4] Exhibit R2, p.5.
Police were once more called to the family home on 19 June 2011. This involved an argument over money, leading to both Mr Sharma and his daughter calling the police and complaining of assault. The police found that this was a verbal argument only.
On 13 June 2012, Mr Sharma was convicted of the offences of assault occasioning actual bodily harm and destroying or damaging property. Both offences were domestic violence related. The convictions arose out of an incident on 21 January 2012. The Police records detail:
When the victim [Mr Sharma’s eldest daughter] arrived home she informed the accused person [Mr Sharma] that she was going out for the evening. The accused person demanded the victim cook him dinner and do the housework and started to argue with the victim. The victim walked outside to the backyard when the accused person approached the victim and attempted to rip the victims [sic] handbag off her shoulder. A melee then occurred between the accused person and the victim. During the melee the accused person has dug his finger nails into the victims [sic] fingers, causing several deep cuts to her fingers, causing bleeding. The victims [sic] handbag was ripped off the victim by the accused person resulting in the strap of the handbag being snapped in two. While the accused person and the victim were in the backyard the accused person has thrown a plastic pot at the victim, striking the victim’s right wrist, causing pain and bruising to the victims [sic] right wrist.[5]
[5] Exhibit R2, p.2.
While his daughter was leaving the premises, Mr Sharma is reported to have stated “If you come home, I will kill you”. On returning home early the following morning, Mr Sharma’s daughter discovered that her room had been ransacked and her computer missing. Police located the “completely destroyed” laptop in the garbage bin the following day. Mr Sharma’s wife confirmed to police that the laptop was destroyed by Mr Sharma.
Mr Sharma entered a plea of guilty to both offences. He was sentenced to a good behaviour bond for a period of 12 months in relation to both offences. Those bonds, which ran concurrently, commenced on 13 June 2012 and expired on 12 June 2013.
Both convictions were disclosed by Mr Sharma in his application for citizenship. There is no evidence that he has been convicted of any further offences, nor is there evidence of any further incidents resulting in police involvement after January 2012.
THE ISSUE
The only issue for determination is whether, at the time of the Tribunal’s decision, Mr Sharma is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).
LEGISLATION
Applications for the conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth).
Section 24 of the Act provides, in part:
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Section 21(2) of the Act establishes requirements for eligibility for the grant of citizenship. It provides, in part:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
...
(h) is of good character at the time of the Minister's decision on the application.
It is only this subsection which is in issue in the present application.
AUSTRALIAN CITIZENSHIP INSTRUCTIONS
The Australian Citizenship Instructions have been adopted by the Minister to guide those making decisions under the Act. Chapter 10 provides “guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”.
The Instructions reflect government policy and are not binding on the Tribunal. However, the Tribunal should apply the policy unless there are cogent reasons to the contrary.[6]
[6] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645.
Paragraph 10.1.2 of the Instructions provides, in part:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.
This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[7]
Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion ... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. ... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character. (citations of authorities omitted).
[7] (1996) 68 FCR 422 at 431-432.
After referring to the judgement of the Court in the Irving, Paragraph 10.3.1 provides, in part:
In this context, "moral" does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:
§ characteristics which have been demonstrated over a very long period of time
§ distinguishing right from wrong
§ behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
In considering the Australian Citizenship Instructions I have taken into account that they refer to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[8]:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what person says, in part what a person does and in part what a person is heard to say and seen to do.
[8] [2011] AATA 304 at [120].
The Instructions go on to say that an applicant of good character would, amongst other things, respect and abide by the law of Australia, and be truthful and not practise deception in dealings with the Australian Government.[9]
[9] Paragraph 10.3.4.
EVIDENCE OF MR SHARMA
Mr Sharma gave evidence at the hearing with the assistance of a Nepalese interpreter.
He disputed a number of comments contained within the police reports. With respect to the offences which resulted in conviction, Mr Sharma stated that he never threatened to kill his daughter. He accepted that a dispute arose out of his telling his daughter not to go out.
Mr Sharma accepted that he was convicted, however claimed that he did not engage in the conduct that gave rise to the offences. Mr Sharma stated that when he entered a plea of guilty he did not fully comprehend what he was doing as he did not have any support and struggled with the English language.
According to Mr Sharma, the laptop broke when Mr Sharma and his daughter were fighting over its use. He and his daughter were both pulling the computer, resulting in its breaking apart.
Mr Sharma also stated that he did not dig his fingers into his daughter’s hands so hard that they bled, as reported by the police. He said that he did not touch her on this occasion. Mr Sharma described the incident as a “minor issue”.
Throughout his evidence, Mr Sharma complained about his daughter’s behaviour. He noted that she had no discipline. He disputed throwing his daughter out of home before she turned 18, stating that she left by herself.
At the conclusion of the giving of evidence at the hearing, Mr Sharma observed that he could not recall seeing a copy of the Minister’s Statement of Facts, Issues and Contentions. In order to allow Mr Sharma an appropriate opportunity to respond to the Minister’s submissions, I allowed him two weeks from the conclusion of the hearing to file any written submissions.
Those submissions focussed on Mr Sharma’s relationship with his daughter. He stated that his daughter was very good from 2007 to 2009 and there were no problems at home or at school. He then detailed an incident in about late 2009/early 2010 when he states that his daughter ran away from home after he refused her permission to travel to Nelson Bay by train. He further stated that from 2010, his daughter did not come home on time from school. The school informed him that she was regularly absent.
CONSIDERATION
Characteristics of a person of good character
In paragraph 10.3.4 of the Instructions there is a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of Chapter 10. They include:
·respect and abide by the law in Australia and other countries;
…
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example: …
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship;
…
·not be violent … and not cause harm to others through their conduct.
...
Paragraph 10.5 provides a “Framework for making ‘good character’ decisions”. Its provisions are not exhaustive. The factors listed “may have different weights, depending on the circumstances of the case”. The relevant factors to be taken into account in considering why an applicant might not be of good character (as set out in paragraph 10.5.2) include the following:
·Has the applicant committed any offences and if so, did they admit that in their citizenship application?
· If the applicant has committed an offence, was it serious or minor?
·Were there victims of the offence? In particular, were the victims vulnerable people like children, the elderly or disabled, or others who trusted the applicant?
The Instructions provide that this framework should be considered first before considering whether there are any mitigating factors which may indicate that a person is now of good character.
Under the heading, Weighing up the decision, the Instructions provide:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
• would a person of good character have behaved the way the applicant did
• what is there to demonstrate that the applicant has upheld and obeyed the law
• has the applicant behaved in accordance with Australia's community standards
• does the applicant share Australia’s democratic beliefs and respect its rights and liberties.[10]
[10] Paragraph 10.5.4.
The offences
Mr Sharma’s convictions for assault occasioning actual bodily harm and destroying or damaging property are serious. The Australian Citizenship Instructions provide that crimes of violence are to be regarded as serious offences. This is particularly so in the case of domestic violence. Such conduct is fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.
Although both of Mr Sharma’s convictions arose out of a single incident, there have been a number of other incidents involving his eldest daughter which have resulted in the involvement of the police. On the basis of these incidents, however, I cannot be satisfied that there exists a pattern of criminal behaviour. The police reports with respect to the earlier incidents indicate that there was no evidence of abuse. In regard to the 19 June 2011 incident, the police reported “verbal argument only”. In February 2011, the police similarly formed the view that the incident was a family dispute that Mr Sharma’s daughter had not won, hence her contacting the police. On each occasion prior to the offences for which Mr Sharma was convicted, the police recorded that they held no fears for the safety of Mr Sharma’s daughter.
I accept that the incidents reflect a highly turbulent relationship between Mr Sharma and his daughter. Nonetheless, when viewed in combination with the offences, they do not establish a pattern of criminal behaviour. Neither do the incidents, when viewed in light of the police comments, establish a pattern of conduct that would cause his daughter to be severely apprehensive.
The offences for which Mr Sharma was convicted, however, are of a different character. Although Mr Sharma denied that the conduct which gave rise to those offences occurred, I cannot go beyond the findings of guilt made by the Court. The offences involved serious violence to Mr Sharma’s daughter. Despite Mr Sharma’s plea of guilty and the fact that it was his first offence, the court still regarded Mr Sharma’s conduct as being of sufficient seriousness to warrant a conviction and a 12 month good behaviour bond.
I note also that the victim of the offences was Mr Sharma’s daughter, a person who could expect to be able to trust him; being his teenage daughter, she was particularly vulnerable. Taking this into account, as well as the seriousness with which crimes of domestic violence are viewed in accordance with the Australian Citizenship Instructions, the offences weigh heavily against Mr Sharma being of good character.
Mitigating Factors
Paragraph 10.5.2 provides, in part:
Once the behaviour of the applicant has been assessed, the decision maker should turn their minds to whether there are any mitigating factors to be taken into account.
oWhat is the length of time between the date of the offence (if known) and application for Australian citizenship, or between conviction and application? ...
oHas the applicant accepted responsibility and shown remorse for their conduct?
oHow has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?…
oHas the applicant rehabilitated themselves?…
oWhat was the applicant’s age at the time the offence was committed?…
oWere there any extenuating circumstances relating to the offence?
Character Evidence
Relevant to the consideration of mitigating factors are the character references provided to the Tribunal by Mr Sharma.
Ms Sharma
The character references include two references from Mr Sharma’s eldest daughter. Ms Sharma stated in her letter dated 1 March 2015 that since the making of an Apprehended Violence Order in 2012 and her leaving the family home, her relationship with Mr Sharma has improved. She notes that it is absent violence and they are slowly building a better relationship. She reiterated that their relationship has improved since she left home and that her father has since “been welcoming and treats me in good behaviour”.[11]
[11] Exhibit A1.
Further Character References
Mr Sharma has provided the Tribunal with a further 11 references which attest to his character. These include references from previous employers, Mr Porta and Ms Billo, his general practitioner, Dr Romero, a conveyancer who acted for Mr Sharma, along with several business proprietors for whom Mr Sharma is a customer.
Each reference recommends Mr Sharma for Australian citizenship. They recognise varyingly that Mr Sharma has a “court history”,[12] “Court action (now settled)”,[13] “issues with his other daughter”,[14] “issues... with the Courts regarding his daughter”,[15] and “parenting issues”.[16] Two references quote the case numbers related to Mr Sharma’s criminal offences, although neither provides details of what the offences were. The only referee to provide any detail of the offences was Dr Romero, who stated:
I am aware of his court appearance which resulted from him attempting to restrain his daughter from attending a party and drinking alcohol before she was 18 years of age.
Dr Romero, however, did not provide any details of the harm caused to Mr Sharma’s daughter nor of the specific offences for which Mr Sharma was ultimately convicted.
[12] Exhibit A1, reference of Ms Gibson.
[13] Exhibit A1, reference of Ms Cranney.
[14] Exhibit A1, reference of Mr Porta.
[15] Exhibit A1, reference of Ms Webber.
[16] Exhibit A1, reference of Ms Billo.
Consideration of Mitigating Factors
Time from conviction to application
Just over two years had expired from the time of Mr Sharma’s convictions to the date on which he lodged his application for citizenship. For twelve months of this period, Mr Sharma was subject to two good behaviour bonds.
Behaviour since release of obligations under the good behaviour bonds
There is no evidence that Mr Sharma has been charged with any offences since the expiry of the bonds in 2013 other than a traffic infringement. Nonetheless, the relatively short period between the expiry of the bonds and the date of this decision, being just over two years, means that I cannot be satisfied, without more, that Mr Sharma has reformed.
Remorse and acceptance of responsibility
I am not satisfied that Mr Sharma has accepted responsibility for his offences. He denied that he assaulted his daughter and continually sought to attribute blame to her. In evidence and in his written submissions, Mr Sharma repeatedly expressed his frustration with his daughter’s conduct and emphasised that from 2010 she was not disciplined. When questioned about the police reports, Mr Sharma said that his daughter was always against him. He said that he was very sad that his daughter was making up such allegations and that he was on medications at the time.
At no time did Mr Sharma accept that his conduct was serious. In fact, he downplayed the 2012 incident as minor. Mr Sharma expressed some regret in his written submissions. However, when viewed in the context of his evidence, and his submissions, which focussed on his daughter’s misbehaviour, I cannot be satisfied that his remorse is genuine.
Rehabilitation
Mr Sharma refused suggestions by the police to engage in counselling with his daughter in 2011. He states that he has received help from the local community mental health team. In the absence of evidence as to the nature of this assistance, for how long it has been taking place, and its effectiveness, I cannot give any such assistance significant weight in considering whether Mr Sharma has been rehabilitated.
Age
Mr Sharma is currently 45 years old. Age is not a factor which mitigates the seriousness of his conduct.
Extenuating circumstances
Mr Sharma focussed on the influence of his daughter on his conduct. I accept that their relationship was turbulent. Nonetheless, this does not in any way mitigate or lessen the seriousness of Mr Sharma’s conduct. Domestic violence is often present in volatile relationships. To say that such circumstances lessen the seriousness of domestic violence is fundamentally inconsistent with the values of the Australian community as reflected in the Australian Citizenship Instructions.
Weighing the various factors
In deciding whether I am satisfied that Mr Sharma is of good character, the evidence has to be looked at as a whole. Paragraph 10.5.4 of the Instructions provides, in part:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities.… A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time.
The offences for which Mr Sharma was convicted are undoubtedly serious offences. As noted above, these weigh heavily against his good character.
I have considered the character references provided by Mr Sharma. They indicate varyingly that he is honest, humble, respectful and hard-working. The authors mostly recognise that Mr Sharma has had problems with his daughter and that he has appeared in court. However, they do not provide any great detail as to what those problems were. None of the references specifically acknowledge the offences for which Mr Sharma was convicted. Accordingly, I cannot be satisfied that the writers were fully apprised of Mr Sharma’s conduct when forming their opinions. I note also that none of the references were given by way of statutory declaration. In the circumstances, they cannot be given significant weight.
Mr Sharma disclosed his convictions in his application for citizenship. He has not been charged with an offence, other than a traffic infringement, in the three years since his convictions.
Nonetheless, Mr Sharma was only released from his obligations to comply with two good behaviour bonds in June 2013. Without evidence of the steps that Mr Sharma has taken to rehabilitate himself, the period since his release from the bonds is not long enough for me to be satisfied that Mr Sharma has in fact reformed. This is even more so when it is considered that, despite the passage of over three years since the commission of the offences, Mr Sharma has not expressed genuine remorse, or accepted responsibility, for his conduct. At the hearing, Mr Sharma denied, downplayed and sought to excuse various aspects of his conduct. To this end, he repeatedly referred to the behaviour of his daughter in an attempt to justify his conduct.
Mr Sharma also characterised the incident for which he was convicted as minor. I am not satisfied that he fully appreciates the seriousness of his conduct; nor am I satisfied that he properly appreciates the seriousness of domestic violence. In these circumstances, I cannot find that Mr Sharma holds the values which the Australian community expects of an Australian citizen.
Taking into account all of the above, I am not satisfied that Mr Sharma presently satisfies the legislative requirement to be shown to be of good character.
CONCLUSION
My conclusion does not preclude Mr Sharma from making a further application for citizenship at some time in the future. It may be that with the passage of time, Mr Sharma will be able to demonstrate that he does meet the requirements for a grant of citizenship.
The decision to refuse Mr Sharma’s application for Australian citizenship by conferral will be affirmed.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance ...........................[sgd].............................................
Associate
Dated 19 August 2015
Date(s) of hearing 27 July 2015 Date final submissions received 7 August 2015 Applicant In person Solicitors for the Respondent R Krishnan; Australian Government Solicitor
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