Rujira Forster and Minister for Immigration and Border Protection
[2014] AATA 829
•5 November 2014
[2014] AATA 829
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0433
Re
Rujira Forster
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member Date 5 November 2014 Place Sydney The decision under review is set aside and the matter remitted to the respondent for reconsideration in accordance with the direction that the applicant is of good character.
....................[sgd]..............................................
Ms N Isenberg, Senior Member
CATCHWORDS
CITIZENSHIP – refusal of application for citizenship by conferral – whether the applicant is of good character – common assault – no conviction recorded – good behaviour bond – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 s 21
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Zhang and Minister for Immigration and Border Protection [2014] AATA 136Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Ms N Isenberg, Senior Member
5 November 2014
The applicant, Rujira Forster, is a citizen of Thailand. She became a permanent resident of Australia on 23 February 2009, having first come to Australia in 2006.
On 5 September 2012, she lodged an application for Australian citizenship.
On 22 February 2013, the respondent’s delegate wrote to the applicant inviting her to comment on information that indicated that she may not be of good character, namely that on 25 September 2012 she had been found guilty of common assault in relation to which a good behaviour bond for 12 months was imposed. In her reply, the applicant explained the circumstances of the offence, referring to a breakdown in the relationship with her husband. She also claimed she was told by the police that if she “did not break the law within the year the charge would be taken off the record” and, for this reason, she did not appeal the finding of guilt.
On 16 January 2014, her application for Australian citizenship was refused on the basis that she did not satisfy s 21(2)(h) of the Australian Citizenship Act 2007 (the Act) because she was not a person of “good character”.
The applicant seeks review of that decision.
The applicant was represented at the hearing by her fiancé, Mr Marich, who also gave evidence.
RELEVANT LEGISLATION AND POLICY
Section 21(2) of the Act provides (relevantly) that:
(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.
“Good character” is not defined in the Act.
The Australian Citizenship Instructions (ACIs) are issued by the Minister to provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Whilst I am not bound to apply policy guidelines, unless the legislation conferring the right to review expressly requires the Tribunal to regard itself bound (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60), I may do so and, indeed, the Tribunal will usually apply the guidelines unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645; Re Dainty and Minister for Immigration and Ethic Affairs (1987) 6 AAR 259 at 267; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.
The ACIs provide guidance on the administration of the “good character” provisions and define, for administrative purposes, the meaning of “good character”. The ACIs provide a framework for assessing applicants under the “good character” provisions. However, the ACIs also note “[i]t is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are ‘satisfied’, on a reasoned basis, that an applicant is, or is not, of good character.”
Chapter 10 of the ACIs provides that: “‘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” (see: paragraph 10.1.2).
The ACIs also provide that (at paragraph 10.3.1):
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.
In relation to offences committed by a person, the ACIs outline a number of factors which should be taken into account when determining whether a person is not of good character because of their criminal offending. In particular the ACIs outline that the following factors are relevant:
(a)seriousness of the offence. In this context the ACIs provide that crimes of violence (including assault and domestic violence) and other offences which attract a sentence of more than 12 months will be considered serious offences (see paragraph 10.5.2);
(b)whether there were victims of the offence, and particularly whether they were vulnerable victims;
(c)whether the offence was pre-meditated;
(d)the length of the sentence, if one was imposed, for the offending;
(e)any ongoing obligations in respect of the offending;
(f)observations in the decision of the court, particularly the sentencing remarks; and
(g)whether there is a pattern of criminal behaviour as evidenced by the criminal record.
The ACIs also list a number of mitigating factors that decision makers should consider in determining whether the person may be of “good character”' notwithstanding their conduct. Those factors include:
(a)the length of time between the date of offence or conviction and application for citizenship;
(b)whether the person has accepted responsibility and shown remorse for their conduct;
(c)how the person has behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond. In particular the ACIs state that:
it is important to see how the client behaves when they are free from the obligations of such a sentence or bond. A reasonable amount of time will need to have passed in order for the person to have established a pattern of good behaviour and thus justify a conclusion that the person is now of good character and is upholding Australian laws.
(d)whether the person has rehabilitated themselves;
(e)the person’s age at the time of offending;
(f)whether there were any extenuating circumstances relating to the offence; and
(g)whether there is evidence of length of employment, stable family life and/or community involvement.
ISSUE
The applicant’s eligibility for Australian citizenship is to be assessed against s 21(2) of the Act. It is not in dispute that the issue in this matter is whether the applicant satisfies s 21(2)(h) of the Act, that is, whether she is of good character.
The respondent agreed that it was appropriate for the Tribunal, in reaching the correct or preferable decision, to assess whether the applicant is of good character at the time of the decision in accordance with Shi v Migration Agents Registration Authority (2008) 235 CLR 286, that is, the Tribunal is entitled to take into account facts and circumstances at the time of review.
EVIDENCE
Charge of common assault
The applicant was married to Mr Forster. They have a son. Because the applicant worked long hours at a mushroom farm, often commencing at 5 or 6 am and working late, the child was cared for, primarily, by her in-laws. There was some marital discord over a period of a few months.
The applicant gave evidence that on 20 June 2012, Mr Forster told her the marriage was over and she should leave. They argued. The applicant followed her husband into the garage and took from her pocket the unsheathed “mushroom knife” (which had a blade of about “3 inches”) which she still had in her pocket from work. She said she stood about a metre away from him, and demonstrated that she held it at about head height in her fist with the blade pointing forward her husband. She denied any intention of harming him.
He said he would call the police and he left to go to his parents’ house. Police officers arrived shortly thereafter in response to a 000 call. The applicant was arrested and taken to the police station for interview although an electronically recorded interview did not take place due to language difficulties. It was recorded by an officer that due to “cultural issues” the applicant did not appreciate what she had done was wrong but she came to understand and accept what she had done was wrong and she was remorseful for her actions. Her husband was interviewed in another room. Due to the fears he expressed charges were laid against her for common assault and stalk or intimidate intending to cause fear of physical or mental harm (“the stalking charge”). An interim AVO was issued against her. The applicant and Mr Marich speculated that Mr Forster’s complaint had been a ploy in the looming custody battle, which remains outstanding.
The applicant was on bail until the matter was heard on 25 September 2012. The applicant was represented by Legal Aid at the hearing. In the meantime there had been ongoing discussions between Mr Forster and the applicant and with Mr Marich, who, at that stage, was just the applicant’s friend. Mr Forster was alleged to have said that he did not want to proceed with the charges and that he had told the police he did not want to proceed.
At the hearing the stalking charge was withdrawn and consequently dismissed. At the outset of the hearing of the common assault charge, the magistrate was apparently confused as to whether the applicant or her husband was the alleged victim. The police were also said to be somewhat bemused because the applicant is diminutive whereas her husband was said to be a large man. Mr Forster, at the commencement of his evidence, said he did not want to give evidence against his wife. The magistrate decided that Mr Forster was compellable and was obliged to give evidence. His evidence, it seems was somewhat non-committal. The police relied on his account provided at the time of the complaint. Significant points of difference with his wife’s version were that he had reportedly told police that his wife had threatened him with two knives – one 10 cm and one 12 cm long – that she had taken from the kitchen drawer; that he felt shocked and was “scared shitless” when the applicant had pointed one knife at him.
The applicant was found guilty of the charge of common assault but without proceeding to conviction the court directed the applicant to enter a good behaviour bond for 12 months under s 10(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The respondent conceded that this was a light penalty, having regard to the seriousness of the charge.
Mr Marich said they were going to appeal against the decision but were assured by police that the effect of the finding was that if the applicant remained out of trouble for a year, she would “have no record”.
Completion of the citizenship application
The events leading up to the charge of common assault occurred on 20 June 2012, and the applicant was bailed to appear for hearing on 25 September 2012. In the meantime, on 5 September 2012, she lodged her citizenship application.
In response to questions 29(e) and (g) of the application, the applicant indicated that she was not aware of any proceedings pending against her for an offence in Australia, nor that she had ever been charged with any offence in Australia that was currently awaiting legal action.
The applicant agreed in cross-examination, that at the time she completed the citizenship application she was aware that she faced charges. She was hopeful, having regard to the discussions she and Mr Marich were having with her husband that he would tell the police that he did not want to proceed.
Mr Marich said they filled out the application form together online. He would ask her for the answers to questions he did not know. Mr Marich said that he accepted responsibility for completion of the form. At that time they were in discussions with Mr Forster about dropping the charges and he was under the impression that there would be no charges against the applicant at the next court appearance.
Mr Marich gave evidence that, following receipt of the respondent’s delegate’s invitation to comment about having been found guilty of common assault, he had told the delegate on several occasions about the circumstances of his having completed the application as he did.
Applicant’s conduct otherwise
The applicant has had no other problems with police (other than one traffic infringement notice for speeding) at any time since she has been in Australia, and the bond period expired on 24 September 2013. The AVO has also expired.
The applicant provided a copy of her resume dated December 2010 which showed consistent work since being in Australia. She has also undertaken studies – most recently a Diploma in Hospitality.
References
The applicant provided a number of documents in support of the application for review, including a number of references from friends attesting to her good character. There is no indication on the face of the references whether the persons providing the references are aware of the applicant having offended. In evidence, though, both she and Mr Marich were confident that the referees either knew of what had occurred, or had a general idea of what had occurred.
CONSIDERATION
The respondent contended that the applicant does not satisfy s 21(2)(h) of the Act, as she is not a person of “good character”. The respondent contended that the commission of the offence of common assault indicates that the applicant was not a person of good character when the offence was committed.
The respondent submitted that the conduct which gave rise to the charge was violent, involving the use of at least one knife, and was intimidatory and threatening behaviour. The respondent submitted that the applicant had committed a serious offence.
Consideration of whether an offence is “serious” or “minor” takes place in the context of the question: “[i]f the applicant has committed an offence, was it serious or minor”?: para 10.5.2 of the ACIs. The ACIs provide a non-exhaustive list of “serious offences” which includes “crimes of violence”, such as assault and domestic violence, and offences which have incurred a sentence of 12 months or more, whereas “minor offences” include those which did not lead to a conviction or sentence. In this matter, while the offence involved assault and domestic violence, the “victim” was not physically attacked and no conviction or sentence was recorded. It does not neatly fall into one category or the other. The magistrate who heard all the evidence did not consider the matter warranted incarceration, or even a fine, only the light “penalty”, namely a 12 month s 10 bond. The offence arose in the context of a domestic dispute, although, as the Tribunal observed in Re Zhang and Minister for Immigration and Border Protection [2014] AATA 136, “nothing can excuse or minimise offences of domestic violence”. I accept the offence, which, at its highest, involved a threat of violence, was a “one-off”. There was no evidence, nor any submission, that the applicant poses any threat to the community.
While the respondent accepted the applicant has not been convicted or found guilty of any further offences since the offence, a period of only approximately 12 months has elapsed since the applicant was free of her obligation to the court to be of good behaviour pursuant to the bond issued in respect of the offence. I observe that recently in Zhang the respondent had submitted 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. The Tribunal accepted that submission. While not determinative, the passage of a period of time equivalent to the term of an order or bond without any incidences of concerning conduct may serve as an indication of reformed character. For reasons which are unclear, no such submission was made in the present matter, notwithstanding that in Zhang the Tribunal had adopted the respondent’s submission as an appropriate benchmark. The applicant has now been free of any obligation for over 12 months without further transgression. Further, I do not discount that she was in fact of good behaviour for the period of the bond, and that she had not previously been in trouble with the law (except for a single traffic infringement).
I note that this was the applicant’s only offence in the nine years she has been in Australia and that the circumstances of the offence arose out of a difficulty in a domestic relationship which caused her great distress.
The respondent acknowledged that the material submitted by the applicant, including references attesting to her good character, is evidence that is capable of demonstrating that the applicant is of good character. However, the respondent submitted that none of these references appear to acknowledge the applicant’s offending. I accept the applicant’s evidence that most of her referees have some understanding of her offence. Mr Marich was an impressive witness and is obviously very supportive of the applicant. I do discount his evidence, notwithstanding that he was giving evidence on behalf of his fiancée; they are soon to be married, and Mr Marich is well aware of the applicant’s history of domestic violence with her previous husband.
The respondent pointed to the response to questions 29(e) and (g) of the applicant’s citizenship application, where the applicant indicated that she was not aware of any proceedings pending against her for an offence in Australia, nor that she had ever been charged with any offence in Australia that was currently awaiting legal action. The respondent submitted that the applicant would have been aware of the proceedings and that she had been charged with two offences at the time of the application and was to answer those charges on 25 September 2012. The respondent submitted the applicant had made a statement in her citizenship application that was false or misleading in a material particular and that this weighs against the conclusion that she is a person of “good character”.
I accept Mr Marich’s evidence that he was responsible for erroneously completing the form. Further, I accept that, notwithstanding that the matter was still listed for hearing two to three weeks after they completed the citizenship application, Mr Marich and the applicant believed that Mr Forster would not pursue the charge against his wife on that date. In that regard, they were somewhat naïve, believing that if Mr Forster did not wish to give evidence, the charges would be automatically dropped. I accept that the application was completed, not in a deliberate attempt to mislead the Department, but that the responses reflected “wishful thinking” that the charges against the applicant would shortly evaporate.
CONCLUSION
After weighing all of the applicant’s circumstances, on balance, I find that the applicant is of “good character” under s 21(2)(h) of the Act.
DECISION
The decision under review is set aside and the matter remitted to the respondent for reconsideration in accordance with the direction that the applicant is of good character.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ....................[sgd]..............................................
Associate
Dated 5 November 2014
Date of hearing 24 October 2014 Advocate for the Applicant Mr B Marich Solicitors for the Respondent Ms H Dejean, Australian Government Solicitor
0
4
0