Rewharewha and Minister for Immigration and Border Protection (Citizenship)

Rewharewha and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2877 (15 August 2018)
Division:GENERAL DIVISION
File Number: 2018/0133
Re:Rangi Takauia Rewharewha
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:15 August 2018
Place:Sydney

The decision under review is set aside and remitted to the respondent with a direction that Mr Rangi Rewharewha is a person of good character for the purposes of section 21(2)(h) of the Australian Citizenship Act 2007.
...............[sgd].........................................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – whether Applicant of good character – driving offences – domestic violence – failure to disclose offences – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 s 21
CASES
Ahori v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Bowdler v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Do and Minister for Immigration and Border Protection [2016] AATA 390
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27
KDSP and Minister for Immigration and Border Protection [2017] AATA 2169
Mahmood v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033
Mendoza v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686
Prapysatok v Minister for Immigration and Border Protection [2018] AATA 693
Prasad v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1506
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Safar v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 503
Umer v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1630
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Zaya v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366
SECONDARY MATERIALS
Department of Home Affairs, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
15 August 2018
BACKGROUND

Mr Rangi Takauia Rewharewha is a citizen of New Zealand who was born in June 1952 and first arrived in Australia on 25 September 1988. He has, since that date, made several trips in and out of Australia and at all times has been the holder of a valid visa (Special Category TY-444).[1] He last visited New Zealand in 2000.
[1] Respondent’s Statement of Issues, Facts and Contentions paragraph 3
He is married to a naturalised Australian citizen (of Polish descent) and has a daughter who is also an Australian citizen.[2] His wife had two children by a previous marriage who were close to Mr Rewharewha as his step-children. One surviving step-son still is.
[2] Letter from applicant dated 21 June 2018
It is important to note the nature of Mr Rewharewha’s employment in Australia. He is a skilled supervisor who specialises in the area of major sheet metal installations for major oil and gas projects. He has worked primarily on a fly-in-fly-out basis in locations such as Karratha, Port Headland, Bunbury and Collee (Western Australia), Olympic Dam (South Australia), the Gorgon Gas Field (Western Australia/Northern Territory) and at Tumut in the Snowy Mountains (New South Wales). His work entailed shift arrangements of three to four weeks on / one week off on a regular basis and as a result there were significant periods when he was absent from his family in New South Wales.
He applied for Australian citizenship by conferral on 11 August 2016 and this application was refused on 23 November 2017 by the Delegate of the Minister.
The reasons given by the Delegate for this refusal were that:
(a)Mr Rewharewha was not a person of “good character” as defined by section 21(2)(h) of the Australian Citizenship Act 2007 (the Act) due to his “long history of repeated offences”[3] of domestic violence and traffic violations; and
(b)His failure to disclose or declare details of his criminal offences in his original citizenship application.[4]
[3] Tribunal Documents page 50
[4] Tribunal Documents page 22
The Delegate was also concerned that Mr Rewharewha had failed to submit a personal statement[5] regarding matters brought to his attention by the Department in their original letter of 7 January 2017, which was an invitation to comment on adverse information before the Delegate who was considering the original citizenship application.[6]
[5] Tribunal Documents page 50
[6] Tribunal Documents pages 20-23
On 9 January 2018 Mr Rewharewha applied to this Tribunal for a review of that decision and the matter was heard on 1 August 2018.
In coming to any decision on this matter the Tribunal must apply the provisions of the Act and is further guided by the provisions of the Citizenship Policy (the Policy).[7] The Tribunal notes the statement of the Respondent[8] that:
The Policy reflects government policy and is not binding on the Tribunal. However the Tribunal should apply the Policy unless there are ‘cogent reasons to the contrary’.[9]
[7] Effective as of 1 June 2016
[8] Respondent’s Statement of Issues, Facts and Contentions paragraph 23
[9] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645
This is indeed the approach which will guide the Tribunal in its determination.
In essence the Tribunal has to answer just one question: is Mr Rewharewha, as of now, a person of “good character” within the meaning of the Act?
GOOD CHARACTER AND THE AUSTRALIAN CITIZENSHIP ACT
In order to qualify for a grant of citizenship by conferral any applicant must meet certain requirements which are set out in section 21(2) of the Act.
That section lists eight specific requirements:
(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.
In making the determination on Mr Rewharewha’s original application the Delegate considered each of these requirements, finding that in relation to items (a) to (g) Mr Rewharewha either satisfied the requirement or that it was not necessary to make an assessment of the requirement.
It was only on the basis of finding that Mr Rewharewha failed to meet the requirement of item (h), namely to be of good character, that his application was refused.[10]
[10] Tribunal Documents pages 43-52
The Act itself contains no definition of what constitutes “good character”, nor indeed does the Policy.
The relevant part of the Policy states:
Definition of good character
The term ‘good character’ is not defined in the Act. Therefore, the Federal Court and the AAT have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432) (per Lee J):
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.
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.
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.[11]
[11] Citizenship Policy page 147
The Policy goes on from this to outline what the characteristics of good character might amount to. These are set out as expecting that applicants would:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
oinvolvement in bogus marriage
oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
oinvolvement in Centrelink or Australian Tax Office fraud
ogiving false names and/or addresses to police
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·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
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not be the subject of any extradition order or other international arrest warrant
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.[12]
[12] Citizenship Policy page 147
The items underlined in the list above are those which were called into question during the course of assessing Mr Rewharewha’s application.
MR REWHAREWHA’S “HISTORY OF REPEATED OFFENCES”
Mr Rewharewha has a history of offences in relation to two matters: driving offences and offences involving domestic violence.
Driving offences
The Respondent has provided a list of driving offences recorded against Mr Rewharewha by the police authorities in Australia[13] and New Zealand.[14] There are some 26 Australian and two New Zealand offences listed.
[13] Supplementary Tribunal Documents pages 1-24
[14] Tribunal Documents page 21
However when the Applicant was subjected to detailed examination by the Respondent on these matters he claimed, under oath, that a significant number of them were not offences which he had committed, but that they had been committed by members of his family (in particular his daughter and step-son).[15] Some of these offences resulted from camera detections of speeding or disobeying stop signs and there is no specific identification in any of the records of the offender. Mr Rewharewha claims that because the vehicle(s) in question were owned by him and registered in his name, the traffic infringements were credited against him although he was not the driver at the time.
[15] Letter from applicant dated 21 June 2018 and in oral evidence
When asked by the Respondent why he had not taken steps to notify the authorities that he was not the driver at fault in these instances, he replied that he assumed the costs/fines of the offences on behalf of the members of his family because he could afford to pay them and they could not.
He claims that members of his family were also the responsible drivers in at least two incidents involving motor vehicle collisions. A careful reading of the police reports of these incidents identifies only “the driver” of the vehicle in question and does not specify the name of that person.[16]
[16] Supplementary Tribunal Documents pages 17-18 and 18-19
There is then one matter in which the person involved in a serious incident was, according to Mr Rewharewha, another person to whom he had recently sold the vehicle but where the transfer papers had not yet been registered.[17] Again identity cannot be established from the police report.
[17] Supplementary Tribunal Documents pages 17-18
At least seven of the matters shown against Mr Rewharewha fall into these categories and it is simply not possible from the evidence before the Tribunal to ascertain whether or not all the circumstances are as he claims. They may be – they may not.
There are then a series of camera-detected offences: three for speeding at less than 15 km/h over, two for speeding in excess of 15 km/h and three for disobeying traffic signals.
In November 2015 Mr Rewharewha was issued a traffic infringement notice for driving a vehicle which was unregistered and uninsured.[18] In evidence he told the Tribunal that he has recently returned to New South Wales after working in Western Australia for a period and had failed to notice that the registration and insurance had expired. It does not appear that anything other than an infringement notice resulted on this occasion.
[18] Supplementary Tribunal Documents page 18
Two further offences relate to a licence being suspended as a result of fines not being paid. Mr Rewharewha was unable to recall precise details of these offences which occurred in 1992 and 1999 although he suggested that this may have been a result of his not having been in the State at the time given the nature of his fly-in-fly-out employment in remote parts of Western Australia and the Northern Territory. Alternately he states that at least one of the fine defaults may be related to the driving offences of his daughter. In any event, he says that it is possible that he missed/ignored notifications from the authorities and he denies, or has no recall, of having received at least one “habitual offence warning letter”.[19]
[19] Tribunal Documents pages 29-31. There were two such letters dated 22 April 2002 and 20 September 2002.
There are finally two other offences, although they present themselves in more than one entry in the relevant documentation. On 6 September 2001 Mr Rewharewha was subject to a random breath test at Batlow (New South Wales) where he recorded a reading of 0.105 grammes of alcohol and was charged with a mid-level PCA offence. This resulted in the suspension of his unrestricted licence and he appeared in the Blacktown Local Court on 31 October 2001 where he was fined and was disqualified from driving for 12 months.[20]
[20] Tribunal Documents page 21
It was during this disqualification period that he offended again when on 5 December 2001 the speeding vehicle which he was driving was stopped by the police at Kirkconnell. Mr Rewharewha explained that he and a mate were driving back from Bathurst where they had been living and working, that his mate who was the scheduled driver had complained of tiredness and Mr Rewharewha had offered to take over the driving.[21] The offences were dealt with in the Singleton Local Court on 19 February 2002 where a fine of $1500 was imposed, together with a further two year licence suspension. Mr Rewharewha appealed the severity of this fine, and that appeal was dealt with and dismissed in the East Maitland Court on 28 June 2002.[22]
[21] Supplementary Tribunal Documents page 15
[22] Tribunal Documents pages 21 and 29
If one accepts the sworn evidence of Mr Rewharewha then his driving offences appear to be as follows:
(a)Two offences in New Zealand, one involving excess alcohol in 1976 and another related to license matters in 1987;
(b)Several possible camera-detected speeding/red light offences in 1995, 2000 and 2001;
(c)A mid-range PCA offence in 2001;
(d)A driving while suspended offence in 2002 (because “my mate had been driving all day”);[23] and
(e)Traffic infringement for driving unregistered/uninsured vehicle in 2015.
[23] Supplementary Tribunal Documents page 15
There do not appear to be any offences recorded after November 2015 and it appears that only one instance evidences an alcohol-related offence in Australia.
If the Tribunal is correct in its analysis, then Mr Rewharewha’s driving record assumes a somewhat different complexion than that advanced by the Respondent, although it is admitted that making sense of many of the details in the various reports and records is far from an easy task.
There have been numerous decisions of this Tribunal making it clear that it regards drink-driving offences as matters of great seriousness which will usually weigh heavily against an applicant who is seeking citizenship.[24] However, in Mr Rewharewha’s case his traffic offences do not appear to be primarily alcohol-related and there is only the 2001 offence (plus the offence in New Zealand back in 1976) under consideration.
[24] Zaya v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366; Bowdler v Minister for Immigration and Border Protection(Citizenship) [2018] AATA 347
There are also decisions in citizenship matters which have upheld original refusals of citizenship by the Delegate where extensive non-alcohol related driving offences have been considered as weighing against applicants.[25] However in these instances the number and seriousness of the offences appear to be somewhat more than those which the Tribunal has ascribed to the Applicant in this case.
[25] Mahmood v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033; Safar v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 503; Bowdler v Minister for Immigration and Border Protection(Citizenship) [2018] AATA 347
The Respondent drew the attention of the Tribunal to a determination in Ahori v Minister for Immigration and Border Protection (Citizenship)[26] where reference was made to an applicant who the Tribunal accepted was “turning his life around” but where the transgressions under consideration were “too frequent and too recent” for the Tribunal to overlook. With respect to the Respondent, the Tribunal does not find sufficient convergence between the facts in that case, nor the age and experience of the Applicant, for it to be sufficiently apposite to this matter for this Tribunal to embrace a similar finding or outcome.
[26] [2017] AATA 601 at [81] and [83]

Given the extent and nature of the offences which can be held against Mr Rewharewha and the length of time that has passed since most of them (up to 16 years ago, other than the single 2015 incident) the Tribunal is not inclined to find that his driving record itself should be taken as indicative of the fact that he is not of good character.
Domestic violence offences
Evidence before the Tribunal draws attention to four incidents of domestic violence.
There are no details available as to the first which apparently involved some sort of incident between Mr Rewharewha and his then fiancée in New Zealand in 1987. It does not appear that any sentence was imposed by the Papakura District Court.[27] Under cross-examination by the Respondent Mr Rewharewha asserted that this matter arose as a result of his fiancée (with whom he was in a de facto relationship) having an affair with another person and while he clearly ascribed some “fault” to her in this regard he did state that his behaviour was inappropriate.
[27] Tribunal Documents page 21
A second instance is described in the evidence and the Tribunal reproduces the police report in full:[28]
About 5.00am on Friday the 1^st day of January 1999, the Poi came into his residence at 55 Sentry Drive after having been sleeping in his car. Once inside the house the Poi began annoying the victim[29] and strate (sic) to follow her through the house. The Poi wanted to go to sleep in the bedroom but the victim did not want to be there and told the Poi she would go to another room. The Poi continued harassing the Victim. The Victim told the Poi that she was going to stay at a friends place if the Poi did not stop annoying her. The Poi said, “If you do that you watch me what I’m going to do”. The victim stated that the Poi had previously been violent towards her after he had been drinking, although no violence was involved on this occasion. A telephone interim order was applied for, granted and issued to the Poi at Quakers Hill Police Station.
[28] Supplementary Tribunal Documents page 23
[29] Mrs Marynowski
The narrative in the police report is headed “Domestic Violence – No Offence”.
The Tribunal finds it problematic as to what weight to assign to this incident. The police report is headed “No offence”. There was no act of violence. It is not clear exactly what sort of order was applied for, although it was presumably some sort of AVO, nor who applied, the victim or the police. The incident took place after New Year’s Eve when presumably Mr Rewharewha had been drinking, then slept in the car and in the early hours of the morning came home in an offensive condition and apparently harassed and annoyed his wife. It does not seem to the Tribunal that this sort of incident reaches the level of seriousness, however unpleasant and uncalled for, that generally attends upon instances of domestic violence.
There is then a more complex matter reported on 20 November 2000.[30]
[30] Supplementary Tribunal Documents page 22. All quotations are from the police record of the incident.
On this occasion there was an on-going argument between Mr Rewharewha (who had been drinking all day) and his wife both about the current state of their marriage and about the fact that he was providing support for her two children who Mr Rewharewha said were “bludging” and failing to work, although Mrs Marynowski (the Applicant’s wife) pointed out that they were full-time students and studying.
During the course of this argument Mr Rewharewha “picked up a knife and waved it about but didn’t actually point it at any body”. Mrs Marynowski upbraided Mr Rewharewha about his drinking and told him that “she could not keep living in a marriage where the POI is always drunk”. He then embarrassed her by talking about intimate matters between them in front of the children as a result of which “She then slapped him on the shoulder and said ‘shut up’”.
Mr Rewharewha then started arguing with one of the children and after an exchange of insults he pushed that child backwards causing the chair on which he was sitting to hit the lounge room wall. As a result of the continuing argument with both the wife and children involved, one of the other children “ran out of the house and rang police”.
On arrival the police questioned Mr Rewharewha who was affected by alcohol “but could still carry out a conversation. He stated that he wanted to leave the house and didn’t want to come back as far as he was concerned the marriage was over”.
The police report goes on: “The victim told police that she did not want to lay any charges nor did she want any AVOs taken out as she had no fears for her safety. She supplied police with a statement to this fact. She had no fears for her children as the POI was leaving. The victims main concern was who was going to pay the mortgage and that she would have no money now”. It concludes with the police telling Mr Rewharewha that he could be charged if his wife chose to lay charges; that he understood that but told them that he considered the marriage over and that it was his intention to sell the house.
Once again the Tribunal is confronted with a report which is essentially one of an unpleasant domestic argument but where an intoxicated Mr Rewharewha picks up a knife and waves it about without any apparent direct threat. It ends with his wife telling police that she feels safe – albeit on the basis that her husband is leaving. Once again there is no actual act of violence reported.
The third incident involves the daughter of the couple. By all accounts she was a troubled young person who frequently ran away from home and developed serious problems with drug abuse. Exact details are hard to establish because there is no documentary evidence before the Tribunal which has to rely on the narrative of events given by Mr Rewharewha in his oral evidence.
As far as can be ascertained this is to the effect that the daughter (born in February 1993) developed problems with drug abuse while at school or college (this is unclear) and was unresponsive to any attempts to deal with this matter. When her parents, who had been living away from her (they were working in Dubbo), attempted to see her at this educational establishment she declined to see them and, as a result, she somehow ended up in the care or custody of the Department of Community Services (DOCS) in Newcastle. She apparently absconded from there and ended up in Silverwater Women’s Prison (again this is unclear as she was a juvenile) and from there was sent to some sort of rehabilitation facility in Ourimbah. Again apparently she ran away and on several occasions she (and others associated with her drug use) broke into and robbed the family home.
At some stage (again unclear) she appears to have returned to living at home, but in an unsettled fashion and frequently ran away from there.
On 14 March 2010 (around 8.30 pm), having been absent for some time, she arrived home in a taxi without any money to pay for the fare and, through the window of their bedroom, asked her parents for money for this purpose. They refused.
The daughter then started yelling and making a scene which prompted Mr Rewharewha to come out of the house and he slapped his daughter on the side of the head on at least two occasions. His wife then came out and intervened in the matter separating the two. The daughter then returned to the taxi (the driver having witnessed all this) and was taken to the taxi depot from where she called the police.
The police incident report states that about 11.30 pm police attended at the Rewharewha home and “placed the accused under arrest”. He was cautioned and “conveyed to Maitland Police Station and upon arrival was entered into the (sic) where he was explained his rights”. He agreed to a recorded interview in which he described his striking his daughter as “discipline”.[31]
[31] Supplementary Tribunal Documents page 20
There is a separate police report for the same incident which records that when they originally attended at the Rewharewha home, Mrs Marynowski acted in a fashion which deliberately obstructed the police as they were making arrangements to convey her husband to the police station. After they had eventually placed Mr Rewharewha in the police van officers returned to inform Mrs Marynowski that she would be charged with hindering/assaulting a police officer.
It appears that this matter came before the Kurri Kurri Local Court on 20 April 2010 where Mr Rewharewha was given a section 10 Bond for 12 months and enjoined to observe an Apprehended Violence Order[32] which had been issued in relation to this event by the police on 30 March 2010.[33]
[32] Tribunal Documents page 18
[33] Supplementary Tribunal Documents pages 19-20
These events took place in 2010 and it is pleasing for the Tribunal to be able to note that Mr Rewharewha informed it that, since that date, his daughter had managed to secure treatment for her drug-related problems, the family had reconciled and his daughter was now studying at University and had secured employment with a medical centre on the NSW Central Coast. Mr Rewharewha has purchased her a car to allow her to travel the significant distance from her home to that place of employment.
Unfortunately there was a further incident in May 2016. On this occasion it appears that Mrs Marynowski returned home to find her husband “highly intoxicated” and that as a result some sort of confrontation occurred during which time Mr Rewharewha assaulted her (by grabbing her hair). This resulted in Mrs Marynowski contacting her daughter who, in turn, contacted the police. When the police attended at the family home, according to their report:
the victim supplied them with limited details as to what has occurred. The victim did advise the police that at one stage the defendant grabbed her by the hair however refused to elaborate any further. The victim made it quite clear she would not assist the police in anyway. She refused to supply a statement in regards to what had occurred. She declined the use of a DVEK recording. She initially stated she did not want any apprehended violence orders however later went on to state she required something to try and prevent the alcohol problem … The victim had no visible injuries.
The police report noted that “it was established that there is clear domestic issues with both parties when the defendant is intoxicated”. The report concluded that the police thought some form of intervention necessary “to prevent any further assaults on the victim which the police see to be likely”.[34] Finally, it is recorded that Mr Rewharewha was arrested and taken to the Waratah Police Station. It does not appear that any charges were laid although apparently the police issued an AVO.[35]
[34] Supplementary Tribunal Documents page 17
[35] idem
It is clear that there are, or were, significant problems with Mr Rewharewha’s behaviour when he was intoxicated, which was a not altogether infrequent occurrence, and that this misuse of alcohol has been a major causal factor in both his driving and domestic violence offences. The Tribunal will return to this matter later.
The Tribunal has, on numerous occasions, made clear its abhorrence of and its intolerance for domestic violence.
In Prasad, Deputy President Constance made this clear:
Domestic violence, in any form and in any circumstances, is fundamentally inconsistent with the standard of behaviour expected by the Australian community.[36]
[36] Prasad v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1506 at [32]
The Respondent pointed to a statement by this Tribunal itself in Mendoza to the effect that:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[37]
[37] Mendoza v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686 at [48]
In Umer, Senior Member Kirk adopted an approach that:
[T]here is a presumption that a person is not of good character in circumstances where the applicant for citizenship has been convicted of a domestic violence offence.[38]
[38] Umer v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1630 at [54]
In Ahori, Senior Member Sosso discussed this more fully within the context of the circumstances surrounding any convictions for domestic violence. The Senior Member stated:
[53] Domestic violence is a very serious matter. 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 can be serious and long lasting.
[54] The fact that the Applicant breached the Protection Order of itself is sufficiently serious to make a prima facie finding of lack of good character. There would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character and not a person who deserves the conferral of Australian citizenship.
[55] That said, the test of good character enunciated by Lee J is comprehensive and not unilateral. The Tribunal would be in error if it automatically reached a conclusion based purely on a conviction for domestic violence, or other serious offence, without considering and evaluating all the evidence presented.[39]
[39] Ahori v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601. The reference to Lee J is his statement in Irving quoted above.
In Mr Rewharewha’s case although there are several police reports of being called to attend at his home due to domestic violence reports and possible incidents, the only matter from which charges arose were those in relation to the problems with his daughter. His wife has never pressed charges; he has never been convicted of any assault upon her; he has never been charged with any breach of an AVO.
The Tribunal is of course fully aware of the reluctance on the part of victims of domestic violence, especially dependant wives, to give evidence and/or press charges against their partners. However the Tribunal can only proceed on the basis of the evidence before it.
In relation to matters involving his wife Mr Rewharewha was cross-examined effectively by the Respondent and in a number of instances his version of events was at odds with that in the police reports. Because matters never came to court there were no sentencing remarks or other material to guide the Tribunal.
Nevertheless Mr Rewharewha did not deny that various incidents had occurred nor that he had been violent towards his wife. He ascribed all these events to the impact of alcohol and explained that he had grown up in an environment in which heavy drinking was the norm and that for most of his working life he had been on construction sites where the all-male culture of workers separated from their families normalised both excessive drinking and overt displays of aggression and violence.[40]
[40] Statement of Mr Rewharewha attached to his Application for Review of Decision dated 9 January 2018.
He further made the point that both separation from his family and the existence of extreme financial pressures[41] had caused him to seek refuge in alcohol on many occasions.
[41] These were outlined to the Tribunal in oral evidence but the details do not need to be elaborated. Suffice to say that the Tribunal accepts that Mr Rewharewha faced significant problems managing an over-commitment of debts for a mortgage, property investments and the purchase of several expensive motor vehicles.
Mr Rewharewha told the Tribunal that he had given up drinking[42] after an “ultimatum” from his wife. It was not clear as to exactly when he had ceased drinking but it appears to have been some time around the May 2016 incident.
[42] Letter from applicant dated 21 June 2018 and in oral evidence
In relation to the incident with his daughter Mr Rewharewha told the police that he regarded his slapping of his daughter as a form of “discipline”. He said that this was how he was brought up as a child, subjected to such “discipline” and that:
I have grown up within low socio-economic circles where certain wrong, antisocial behaviours are exhibited on regular basis. I have copied those behaviours and, sometimes, I have overstepped the boundaries of acceptable conduct and, consequently, broke the law, causing discomfort and harm to others, especially my family. I do not intend to shift blame upon my social upbringing but, I realised, later in life, that it had some bearing on the ways I have behaved.[43]
[43] Statement of Mr Rewharewha attached to his Application for Review of Decision dated 9 January 2018
Careful consideration of the evidence, such as it is, surrounding all of the domestic violence incidents leads the Tribunal, along the lines suggested in Ahori, to be inclined not to accept that their nature is such as to establish them as constituting an automatic disqualification for Mr Rewharewha in terms of establishing matters of good character, although the fact that such incidents took place is of no credit to him.
Failure to disclose offences
The Delegate also weighed against Mr Rewharewha’s application the fact that on his application form he had not only failed to disclose his previous convictions but that he had, in effect, sought to mislead the Delegate by providing false information.
This arises from the fact that when asked to answer no or yes to question 34(a) on the form (which reads: “Have you been convicted of, or found guilty of ANY offences overseas or in Australia (include all traffic offences which went to court, including offences included in your permanent residence application, and any ‘spent’ convictions)?”) he ticked the “NO” box when clearly he should have ticked the “YES” box.
In response, Mr Rewharewha states that he “misread the statement at the time” and sincerely apologises.[44]
[44] idem
This is the explanation most frequently given to the Tribunal but it is, in truth, no excuse.
The Citizenship Policy which has been cited above makes it clear that seeking to mislead immigration authorities is to be regarded as a serious matter and one which goes clearly to determinations about questions of good character.
This matter was made clear in Lachmaiya where Deputy President McMahon stated:
The observance of truth in dealing with officials and migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications.[45]
[45] Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35]
It was restated clearly in the recent decision in Prapysatok (following Lachmaiya) where Senior Member Morris held that:
I consider that, as citizenship is effectively the end-point for a non-citizen in the broader immigration process, this principle also extends to apply when permanent residents are applying for Australian citizenship. There is a reasonable expectation by the Australian people that a non-citizen will obey Australia’s laws and be truthful to immigration officials.[46]
[46] Prapysatok v Minister for Immigration and Border Protection [2018] AATA 693 at [28]
CHARACTER EVIDENCE ON BEHALF OF MR REWHAREWHA
Mr Rewharewha supplied the Tribunal with statements of support and character references from Mr Danny Ryan (a Project Manager at Hertel Modern with whom he had worked for many years in Western Australia) dated 3 December 2017 and Mr Paul Cattabriga (a Project Manager for the Insultech Group in New South Wales) dated 26 June 2018, both of whom attested to his professional skills and his personal good character. In answer to questions from the Respondent Mr Rewharewha admitted that neither of these referees had knowledge of his driving record or domestic situation which he said, was never discussed with anyone outside the immediate family.

This factor diminishes the quality of the references for the Tribunal. The Citizenship Policy states:
Referee reports can shed light upon an applicant's character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident.[47]
[47] Citizenship Policy page 155
A further reference was supplied by Mr Rewharewha’s wife dated 29 December 2017 in which she states that as his wife of 26 years she recognises that while he “has his downfalls, showing his temper, but he always apologises and is remorseful”, he is a “good husband and a good father to my children”. She says he is a hard worker, helpful, home-centred and a good financial provider. It would of course be better from Mr Rewharewha’s point of view that he did not have cause to apologise and express remorse quite so often.
Mr Rewharewha gave extensive evidence on his own behalf and was questioned in detail by the Respondent. He also replied to several questions from the Tribunal. In essence he presented himself as a hard-working skilled tradesman who had worked in Australia for some 29 years and was a productive contributor to the Australian community. He has never accepted welfare (Centrelink) during periods of unemployment but always sought to re-enter the workforce and although he is past retirement and pension age he continues to work and intends to continue to do so.
He admitted that he had a poor driving record, but that apart from the 2015 incident these offences had taken place quite some time ago (16 or so years).
He admitted that he had been seriously and adversely affected by alcohol and that this had led to several incidents of inappropriate behaviour for which he was remorseful (a point accepted by the Respondent). He told the Tribunal that he had “changed for the better” and had given up drinking (and smoking) and was in the process of arranging to see a psychiatrist/psychologist to seek “advice” regarding anger management issues.
The Tribunal found him to be a credible witness. He did not seek to evade or avoid answering questions put to him directly about his record or his inappropriate behaviour and he was forthcoming about his personal life and family circumstances.
POLICY GUIDELINES
The Citizenship Policy gives further advice to decision-makers related to character assessment. It provides:[48]
Weighing up the character decision
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. Decision makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards.
…
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.
[48] Citizenship Policy page 149
In Contreras[49] the full bench of the Federal Court referred to the balancing of all the elements which this Tribunal is required to consider as a “calculus”. All of the disparate elements must be considered and each of them must be given appropriate weight. Although neither the scheme of the Act nor the directions in the Policy set out the relative weights to be assigned to any individual element in the section 21(2) check-list, and although these weights will vary on a case-by-case basis, there are, naturally, some which weigh more heavily than others.
[49] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52]
In Mr Rewharewha’s case the matters which the Tribunal must address are these:
(a)Is Mr Rewharewha’s driving record such that it would tend towards a conclusion that he is not a person of good character?
(b)Has Mr Rewharewha committed or been convicted of such acts of domestic violence as would preclude him being regarded as a person of good character?
(c)Is the fact that Mr Rewharewha failed to answer an important and relevant question on his Citizenship Application form, a failure of such magnitude as to lead to a conclusion that he is not a person of good character?
(d)Do these matters in aggregate lead to a conclusion that Mr Rewharewha is not a person of good character?
(e)Are there any factors which tend towards the credit of Mr Rewharewha such that any negative conclusions based on answers to the above questions might be offset in the calculus of weighing up the character decision?
The conclusions of the Tribunal are as follows:
(a)The driving offences, although not to Mr Rewharewha’s credit, are such that the Australian community would not take them, on their own, to be an insuperable barrier to a finding of good character.
(b)The domestic violence matters, viewed holistically and in their proper context, likewise, would not lead to a community assessment that Mr Rewharewha is not of good character.
(c)The failure of Mr Rewharewha to answer an important question truthfully is a significant matter and would lead to the conclusion that Mr Rewharewha is not a person of good character.
(d)In aggregate these matters might suggest a negative assessment of Mr Rewharewha in terms of the good character test.
(e)In all other respects Mr Rewharewha presents himself as a hard-working, honest man who has sought to do the best by his family, and despite various challenges has, by and large, been successful in overcoming them. He has made a positive and long-term economic contribution to the Australian economy and community, having been a resident here for several decades. His family are all Australian citizens. He acknowledges that he has had problems with alcohol and, as far as can be understood, this is the root cause of most of his problems. He has indicated an understanding of this and has taken steps to address and overcome it. He clearly understands the gravity of his past behaviour and is genuinely remorseful. He seeks to become an Australian citizen because he feels a genuine attachment to and loyalty to this country.
There are some further findings from Tribunal decisions which this Tribunal takes into account. They are as follows.
In KDSP and Minister for Immigration and Border Protection,[50] Senior Member McGrowdie stated at [36]:
The Australian community could not be said to be intolerant of any risk. While the Australian community abhors domestic violence, looking at the whole of the circumstances of the applicant’s behaviour, I would consider that the Australian community would not assume that the applicant will reoffend
[50] [2017] AATA 2169
The Tribunal also notes Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”.[51] In this case where the Citizenship Policy stands in place of the Principles referred to, this Tribunal believes that that assessment should be made on the basis of the individual circumstances of each case and considered in light of the purpose of the legislation.
[51] [2016] AATA 999 at [68]
Deputy President McCabe in Do and Minister for Immigration and Border Protection[52] commented that:
A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful… after all: we are a nation built on second chances.
[52] [2016] AATA 390 at [23]
A similar formulation was expressed by this Tribunal in Waits and Minister for Immigration and Multicultural and Indigenous Affairs[53]
the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power
[53] [2003] AATA 1336 at [36]
CONCLUSION
After analysis of all the factors which the Tribunal considers relevant, and for the reasons stated above, the calculus of the Tribunal is that despite his various failings and offences, Mr Rewharewha is a person of good character in terms of section 21(2)(h) of the Act.
DECISION
The decision under review is set aside and remitted to the respondent with a direction that Mr Rangi Rewharewha is a person of good character for the purposes of section 21(2)(h) of the Australian Citizenship Act 2007.

I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...............[sgd].........................................................
Associate
Dated: 15 August 2018

Date of hearing: 1 August 2018

Applicant: In person

Solicitors for the Respondent: Ms A Nanson, Australian Government Solicitor

[2018] AATA 2877

15 August 2018

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	1 August 2018
Applicant:	In person
Solicitors for the Respondent:	Ms A Nanson, Australian Government Solicitor