Re Zhang and Minister for Immigration and Border Protection

[2014] AATA 136

[2014] AATA 136

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/3943
Re	Hang Zhang
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member J Toohey Professor McCallum, Member
Date	13 March 2014
Place	Sydney

The Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that the applicant is of good character.

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Senior Member J Toohey

CATCHWORDS – CITIZENSHIP – whether applicant of good character – offences committed on one day – good behaviour bonds imposed – Tribunal satisfied offences out of character – Tribunal satisfied applicant of good character – decision under review set aside

Legislation

Australian Citizenship Act 2007 s 21(2)

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Secondary Materials

Australian Citizenship Instructions

REASONS FOR DECISION

Senior Member J Toohey
Professor McCallum, Member

BACKGROUND

1. Mr Hang Zhang is a 49-year old citizen of China and a permanent resident of Australia.  He seeks review of a decision by a delegate of the Minister for Immigration and Border Protection (the Minister) that he is not eligible for Australian citizenship because he is not of good character. 

2. It is a requirement for eligibility for Australian citizenship by conferral that a person be of good character: Australian Citizenship Act 2007 (the Citizenship Act) s 21(2)(h). The Minister contends that Mr Zhang is not of good character by reason of his conviction in November 2009 of two counts of common assault and one of breaching an Apprehended Violence Order (AVO). The charges arose out of an argument between Mr Zhang and his then wife on 22 October 2009.

3. Mr Zhang does not dispute that his offences were serious but submits that, taking into account the circumstances in which they occurred and the time that has passed since they occurred, the Tribunal can now be satisfied that he is of good character.  The Minister contends that insufficient time has passed for the Tribunal to be satisfied that Mr Zhang is now of good character.

4. We have to decide whether Mr Zhang is of good character and so eligible for Australian citizenship. None of the other eligibility criteria in s 21 (2) of the Citizenship Act is in issue.

5. Mr Zhang gave written and oral evidence.  A report from his treating psychologist, Mr Ross Calvi, and statements from his former employer and from friends, are also in evidence.  None of his witnesses were required for cross-examination.

   CIRCUMSTANCES OF MR ZHANG’S OFFENDING

6. Mr Zhang arrived in Australia in 2001 as a member of the family unit of his first wife.  From 2001 to 2008 he spent most of his time in China where he had a successful electrical business.  He and his first wife divorced in 2008.  According to Mr Zhang the divorce was amicable; they had no children and they divided their property by agreement. 

7. Mr Zhang met his second wife in China in 2007.  She gave birth to their son in November 2008.  She arrived in Australia with their son in August 2009 and she and Mr Zhang married the following month.  According to Mr Zhang, the relationship had been difficult from around the birth of their son and became more so in Australia.  On 22 October 2009, he and his wife had the argument that led to the charges against Mr Zhang.  In June 2010, his wife moved out of the home and, in October 2010, she returned to China.  Mr Zhang has not seen her or his son since.  They divorced in November 2011.

   Events on 22 October 2009

8. According to Mr Zhang, he and his wife had a “serious argument” over money on the morning of 22 October 2009.  While she was in China, he had been sending her money which she saved into her bank account.  His plan was to buy a business in Australia.  When she refused to give him the money, they argued and Mr Zhang lost his temper.  He threw food from the table onto the floor, and grabbed his wife’s hair, pulling her toward the door.  She took their son upstairs and shut herself in the bedroom.  He knocked on the door “wanting to fix up our relationship”.  She refused to open the door and called the police.  They arrived and she said she wanted him taken to the police station.  Once there, an AVO was issued to the effect that Mr Zhang was not to “assault, molest, harass, threaten or otherwise interfere with” his wife, he was not to “engage in any other conduct that intimidates her” and he was not to “stalk” her. 

9. Mr Zhang was released from the police station around 6pm that day.  He says he was exhausted, ashamed and frustrated by the time he arrived home.  He was “overwhelmed” by his “mixed feelings”.  He slapped his wife on the head and smashed his laptop on the floor.  He was charged with two counts of common assault and one of contravening the AVO.

   Hornsby Local Court, 29 November 2009

10. In relation to what occurred on the morning of 22 October 2009, the Facts Sheet prepared by the police for the Court shows “there is a history of violence where the accused has hit the victim in the past but this has never been reported to police.”  It also shows that Mr Zhang picked up the chair in which his son was sitting and “put it back on the ground hard”.  Mr Zhang disputes both of these statements and says he denied them to the police at the time.  We found him to be a credible witness and, in the absence of evidence to the contrary, we accept that neither statement is true.

11. In relation to what occurred that evening, the Facts Sheet shows Mr Zhang arrived home about 5.45pm; when his wife opened the door, he used an open hand to slap her “on the top of her head” and then smashed his laptop on the kitchen floor; his wife went upstairs and rang the police; Mr Zhang left before they arrived.  He was arrested at home the following day.   

12. There was possibly some confusion in the questions put to Mr Zhang at the hearing about whether his wife was holding their son when he assaulted her.  Asked whether she was holding their son during the incident in the morning, Mr Zhang denied that he was and said he “would never do that”.  The Facts Sheet concerning the morning incident does not suggest that he was.  However, according to the Facts Sheet concerning the afternoon incident, his wife opened the door to him while she was holding their son and Mr Zhang slapped her on the top of her head.  Mr Zhang was not asked whether she was holding their son during the second incident.  We understand his statement that he would “never do that” to be a denial in relation to either incident and, on that basis, we accept his evidence. 

13. Mr Zhang pleaded guilty to two charges of common assault and one of breaching the AVO.  Submissions handed up by his solicitor show that he and his wife had “reconciled” and she “had forgiven” him.  Mr Sam Borenstein, clinical psychologist, who assessed Mr Zhang prior to being sentenced, reported that he acted “uncharacteristically” on the day of the offences.  He described the disappointments and frustrations Mr Zhang had experienced in Australia, including in his marriage, and diagnosed him as suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood.  He recommended Mr Zhang seek counselling with a clinical psychologist (which he did; see below).

14. Mr Zhang was given six-month suspended sentences on one charge of assault and for contravening the AVO, and a two-year good behaviour bond on the other charge of assault.  The magistrate’s sentencing remarks were brief and give little insight into the sentences imposed.   

15. Mr Zhang says he was “shocked” by the severity of his sentence because he understood from his solicitor that mitigating factors meant the Court was likely to be lenient.  He appealed the severity of his sentences (but not the convictions).  On 18 February 2010, the District Court quashed the suspended sentences and imposed two-year good behaviour bonds on all charges.  Sentencing remarks are not available but it is reasonable to conclude that the court found Mr Zhang’s offences at the lower end of the scale.  The bonds expired on 18 February 2012. 

    THE MEANING OF GOOD CHARACTER

16. The Citizenship Act does not define “good character”. Guidance is found in Chapter 10 of the Australian Citizenship Instructions (ACIs) which offers guidance on policy in relation to the interpretation of, and exercise of powers under, the Citizenship Act and Regulations. They are government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

17. “Good character” 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.   The framework for determining whether a person is of good character involves characterising the nature of the offence(s), considering the applicant’s relevant associations and general conduct, considering any mitigating circumstances, weighing up relevant factors and applying community standards: cl 10.1.2

18. As to the meaning of “good character”, the ACIs cite Justice Lee in the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, where he 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 the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

19. The ACIs state that the phrase “enduring moral qualities” encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society.  This broad definition means 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 their migration and citizenship processes”: cl 10.3.1.

20. At cl 10.3.4, setting out a “non-exhaustive” list of characteristics that an applicant of good character would have, the ACIs describe a person of good character as one who would: respect and abide by the law in Australia and other countries; be honest and financially responsible; be truthful in their dealings with the Australian Government, other governments and organisations;  not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct; and not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia.

21. The ACIs set out at length relevant factors when considering the implications of a person’s criminal record for their character.  They include the nature and seriousness of the offence (crimes of violence, including domestic violence, are regarded as serious offences), whether it was pre-meditated,  whether it was a “one-off offence” or there was a pattern of criminal behaviour, and the length of sentence.  In this regard, sentencing remarks may prove useful: cl 10.5.2. 

22. Mitigating factors may mean that, despite serious offending, a person may be found to be of good character.  Factors include the time that has elapsed since offending, whether the person has accepted responsibility and shown remorse for their conduct, their age at the time of offending, and any extenuating circumstances relating to the offences.  Evidence of length of employment, stable family life and community involvement may be indicators of good character and references from independent people such as employers may be helpful: cl 10.5.2. 

    IS MR ZHANG OF GOOD CHARACTER?

23. For Mr Zhang it is submitted that his conduct on 22 October 2009 was an aberration which cannot be excused but which does not offer insight into his character overall.  In support of that submission, he relies on the following.

24. There is no evidence, and nothing to suggest, that Mr Zhang has committed any other offence, before or since 22 October 2009.  A translation of a notarial certificate issued by the MinJiang notary public office on 26 February 2013 confirms that he “had no record of committing offences against the criminal law during his residence in China before February 16, 2013”.  (We understand Mr Zhang has not been in China since).

25. Mr Zhang continued to live with his wife and son after the events of 22 October 2009.  There seems to have been some sort of reconciliation but it was short-lived.  According to him, in March 2010 his wife advised Centrelink they had separated and asked Centrelink to pay parenting payments into her account.  He learned of this when Centrelink contacted him about their accounts.  It appears that, around this time, his wife returned to China for a period.  Mr Zhang then sponsored a visit to Australia in April 2010 by her mother.  From June 2010, Mr Zhang paid rent on a separate property where his wife, their son and her mother could live. 

26. Mr Zhang says he believed this separation was temporary.  Between June and September 2010, he and his wife attended marriage counselling on approximately ten occasions.  They met frequently and maintained a sexual relationship.  In August 2010, she found she was pregnant.  She terminated the pregnancy despite his efforts to dissuade her from doing so.  Throughout this time, he says, he worked hard to save his marriage.

27. In October 2010, Mr Zhang’s wife rented a truck and “took just about everything” except his personal luggage from their former home.  According to Mr Zhang, this was shortly after she had been granted permanent residency.  A short time later, she left for China with their son.  He says he arranged for his sister in China to send her $A5000 for dental and living expenses because he was still trying to save his marriage.  In January 2011, he sent her $A1000.  Around that time he learned she was living with a man in China.  He has been to China to find his son, and has commenced proceedings here in an attempt to have contact with his son, but without success.  Mr Zhang understands she has returned to Australia with their son and he has instituted further proceedings here in order to have contact with his son.

28. Mr Zhang says he is deeply ashamed and regrets his conduct on 22 October 2010.  He suffered from depression following his conviction and sought help from a psychologist whose report is considered below.  Until recently he worked in a coffee shop but left in about March 2013 to seek better employment and, possibly, business opportunities.  Since late 2013, he has worked as a sub-contractor courier for a large transport company.  In 2013 he started work as a volunteer for Ku-ring-gai Council doing gardening for elderly people.  His position was suspended on account of his criminal record.  It is not suggested that Mr Zhang attempted to conceal his record.

    Report of Ross Calvi, psychologist

29. In reports dated 8 August 2013 and 21 February 2014, Mr Calvi says Mr Zhang started seeing him for counselling for depression in August 2011; at 21 February 2014, he had seen Mr Zhang on 21 occasions. 

30. Mr Zhang told us he stopped seeing Mr Calvi at the end of 2013 because Mr Calvi had helped him a lot and he felt “ready to turn a new page”.

31. In his second report, Mr Calvi says when he first saw Mr Zhang he felt “very sad most of the time”; he described feelings of “hopelessness and powerlessness” and was “very confused” about why his wife was making it so difficult for him to see his son.  Mr Calvi diagnosed him as suffering from “extremely severe” symptoms of depression.

32. Mr Calvi reports that he worked with Mr Zhang on his “depressions management skills” and his “anger management skills”.  He says Mr Zhang was consistently punctual and was “always polite and engaged well in his treatment”.  In Mr Calvi’s opinion, the events of 22 October 2009 were “isolated incidents that occurred due to a specific set of circumstances at that time”.  In particular, Mr Zhang’s feeling that he was losing control of his relationship with his second wife was complicated by the fact he had ended what he described as a happy first marriage and a prosperous life in China to be with her and their son.

33. Mr Calvi concluded that the risk of Mr Zhang committing a similar offence again was “very minimal because the circumstances surrounding the offences were very specific and no longer exist for him”.  Beside those charges, he wrote, he found no evidence that Mr Zhang was not of good character and he supports his present application. 

    Statutory declarations and letters in support of Mr Zhang’s application

34. The following statutory declarations in support of Mr Zhang’s application have been submitted.  In each case the writer says she or he is aware of the circumstances of Mr Zhang’s convictions.

35. Mr Christian Girardin is the manager of the coffee shop where Mr Zhang worked for approximately three years.  He states they have maintained regular contact since Mr Zhang left.  He demonstrated “at all times a motivated and dedicated attitude towards his work and his customers”.  He is “a reliable and honest employee”.  Mr Girardin says he was very surprised to learn of Mr Zhang’s convictions because “the nature of the offences is totally inconsistent with his personal reputation”.   He says Mr Zhang has expressed his “genuine remorse and significant embarrassment” over the matter and he truly believes his actions were out of character.  Mr Girardin accompanied Mr Zhang to the Tribunal hearing and was available to give oral evidence but was not required for cross-examination.

36. Ms Jennifer Liang has been a friend of Mr Zhang for more than five years; he visits her home regularly and helps her son with his studies.  She says they have talked a lot about his marriage; he tried hard to save his marriage and asked friends, including her, to talk with his former wife but the marriage “just did not work”.  She says Mr Zhang is a “decent, kind and trustworthy person” and she believes what happened on 22 October 2009 was a “one-off event”.

37. In a letter to the Tribunal, Mr Clement Deng, a friend of Mr Zhang for three years, attests to his “honest and steady” character, his kindness and willingness to help others.  He “truly believes” what happened was “an isolated and one-off incident”.

38. Shubing Zhuo and Nie Wang say they have been friends with Mr Zhang for about six years and maintain regular contact with him including inviting him to dinners at their home.  They were aware of his unhappy marriage and were very surprised to learn of his convictions.  They believe what happened was an isolated incident and that Mr Zhang deeply regrets what he did.

    CONSIDERATION

39. Mr Zhang’s offences on 22 October 2009 were undoubtedly serious.  Any offence of domestic violence is serious, particularly in the presence of a child.  Moreover, his conduct continued, despite the AVO, when he arrived home from the police station several hours later.  In breaching the AVO, he showed a disregard for the law.  Those matters weigh heavily against him.

40. That said, nothing in Mr Zhang’s conduct suggests he has attempted to minimise the seriousness of his conduct.  We accept that he is genuinely remorseful and ashamed of his conduct.  It is notable that, although he describes his unhappiness about his wife’s attitudes and conduct towards him, he has not sought to blame her for his actions.

1. For the Minister it is submitted that Mr Zhang’s conduct constituted a pattern of behaviour, a matter that weighs heavily against him.  In the circumstances in which they occurred, we do not think Mr Zhang’s offences can fairly be characterised in that way.  There is no evidence, and nothing to suggest, that Mr Zhang has acted in a similar manner before, or since, that day.  Considered in context, we accept that what occurred on 22 October 2009 was an isolated incident, albeit one that comprised two separate assaults, separated by several hours.

2. It is to Mr Zhang’s credit that he attended marriage counselling with his wife even if it was ultimately unsuccessful.  We accept that he tried his best to make his marriage work, despite their difficult circumstances and, even after his wife and son returned to China, he took his responsibility of supporting them seriously. 

3. It is also to Mr Zhang’s credit that he underwent counselling with Mr Calvi over 21 sessions.  We accept that, in doing so, he was genuinely motivated to deal with his depression and his anger.  The contents of Mr Calvi’s report were not challenged.  We have no reason, in all the circumstances, to doubt his opinion that the risk of Mr Zhang repeating his conduct is “very minimal”.  We accept his opinion that Mr Zhang acted “impulsively and out of frustration”.  The risk in such cases is that, faced with similar circumstances again, a person may respond in the same way but we think that most unlikely here.  Mr Zhang continued to live with his wife for several months, and maintained regular contact with her, including a sexual relationship, for a full year before she left Australia.  It is reasonable to assume that the relationship remained difficult throughout much of that time, ending as it did with her returning to China.  Given that he saw Mr Zhang on 21 occasions, we give considerable weight to Mr Calvi’s opinion.

4. For the Minister it is submitted that the character references provided by Mr Zhang’s former employer and friends are inherently unreliable.  We agree that they should be regarded with caution because of the tendency for friends and associates to focus only on what might be helpful.  Nevertheless, it counts in Mr Zhang’s favour that Mr Girardin and Ms Liang have each sworn statutory declarations stating they are aware of his offences and attesting to his good character.

5. When considering a person’s enduring moral qualities, a decision maker needs to look “holistically at an applicant’s behaviour over a lasting or enduring period of time”: cl 10.5.4 of the ACIs.  We accept the submission for the Minister that a period at least equivalent to a supervisory order such as parole or a good behaviour bond would be expected to elapse before a person can be considered reformed and of good character.  We agree that, until a person is free of such obligation to the Court, their conduct cannot truly be tested.  On the other hand, compliance with a supervisory order should not be dismissed as irrelevant.  It is still the case that Mr Zhang has not re-offended for nearly four and a half years, during two of which he was not subject to any supervision.  In all the circumstances, we are satisfied that he has reformed and will not re-offend.      

   CONCLUSION

6. Nothing can excuse or minimise offences of domestic violence.  We are satisfied that Mr Zhang does not seek to do either.  We are satisfied that he genuinely accepts responsibility for his conduct and that he is genuinely remorseful.  We are satisfied that his conduct on 22 October 2009 was out of character and that the chance of it being repeated, even in the unlikely case that he finds himself in similar circumstances again, is extremely low.

7. We are satisfied, in all the circumstances, that Mr Zhang is of good character.  We set aside the decision under review and remit it for reconsideration with a direction to that effect. 

48.       I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member and Professor McCallum, Member. 

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Associate

Dated  13 March 2014

Date of hearing	10 March 2014
Solicitor for the Applicant	Mr D Prince, Kinslor Prince Lawyers
Solicitor for the Respondent	Ms A Wong, DLA Piper Australia