Selamat and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2023] AATA 856

Selamat and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 856 (21 April 2023)

Division:GENERAL DIVISION

File Number:          2022/4490

Re:Ima Dullah Selamat

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:21 April 2023

Place:Melbourne

The reviewable decision is affirmed.

....................................[SGD]....................................

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – applicant applied for Australian citizenship by conferral – applicant satisfied certain requirements – delegate not satisfied applicant of good character – application therefore refused – applicant applied for review by Tribunal – criminal offending – minor traffic offences – domestic violence offence – good character must be assessed as at date of decision – applicant has discharged obligations to the Court – offences committed after citizenship application lodged – Tribunal finds more time must pass before being satisfied applicant of good character – decision under review is affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 37

Australian Citizenship Act 2007 (Cth), Preamble, ss 21, 24, 52, Sch 1

Cases

BOY19 v Minister for Immigration and BorderProtection [2019] FCA 574

Irving and Minister of State for Immigration, Local Government and Ethnic Affairs [1996] 68 FCR 442

Secondary Materials

Department of Home Affairs – Revised Citizenship Procedural Instructions (CPIs) – CPI 15 – Assessing good character under the Act

REASONS FOR DECISION

Senior Member D. J. Morris

21 April 2023

1. The Applicant was born in the Union of Burma (now Myanmar) in 1977. He arrived in Australia in 2011. He married in Australia and he and his wife have two young children.

2. On 7 September 2016 the Applicant, as the holder of a visa which gave him permanent residency, applied for Australian citizenship by conferral on the general eligibility pathway. Some six years later, in May 2022 the Department of Home Affairs (‘the Department’), in considering his application, obtained a criminal history check in relation to the Applicant. It disclosed two Court appearances, both before the Magistrates’ Court of Victoria. The first was in October 2018 in relation to two traffic offences. The second was in November 2020, where the Applicant was convicted of the offences of Recklessly cause injury; Possess prohibited weapon without exemption or approval; Unlawful assault (2 counts); and Intentionally damage property. The Applicant was ordered to complete a twelve-month Community Correction Order (‘CCO’).

3. Mr Selamat was invited by the Department to comment on the criminal history records and to provide other supporting evidence to show he is of good character.

4. The Applicant provided a statement, evidence of completion of a 20-week Men’s Behaviour Change Group programme with Relationships Australia, a letter from his general practitioner, a referral to a psychologist dated January 2021 with a medical history, an order completion report from the Victorian Department of Justice confirming that the Applicant’s CCO had been discharged, and a letter from the Chairman of the Australian Burmese Rohingya Organization dated 19 May 2022.

5. On 26 May 2022 a delegate of the then Minister administering the Australian Citizenship Act 2007 (‘the Act’) refused the application for citizenship. The delegate was not satisfied that Mr Selamat was of good character, and accordingly found he did not satisfy s 21(2)(h) of the Act, and was not eligible for the grant of Australian citizenship under s 24(1) of the Act.

6. On 2 June 2022 the Applicant applied for review of the delegate’s decision by the Tribunal, as he is entitled to do under s 52(1)(b) of the Act.

   HEARING

7. A hearing was held on 11 April 2023. The Applicant was represented by Ms Madhu Warnakulasuriya, solicitor, of Warna Legal. The Respondent was represented by Ms Michelle Stone, of The Australian Government Solicitor. The Applicant gave evidence and was cross-examined. Other witnesses called by the Applicant were: the Applicant’s wife who will be called ‘Ms AW’; Dr Jo Hur, general practitioner; Ms Manyang Zhuang, a friend of the Applicant; and Mr Sayed Hussain, a friend of the Applicant. Apart from the Applicant, all the witnesses gave evidence by telephone as allowed by the Tribunal under s 33A of the Administrative Appeals Tribunal Act 1975. The Tribunal appreciates the assistance of an interpreter in the Rohingya language in relation to some of the witnesses.

8. The Tribunal had regard for Statements of Facts, Issues and Contentions submitted by both parties. The Tribunal also admitted into evidence the exhibits listed in the annexure to these reasons.

9. At the conclusion of the hearing, at the Applicant’s request, the Tribunal gave leave for him to provide evidence of consultations with psychologists who whom he was referred by Dr Hur, and the nature of the treatment. After receipt of that material, the Tribunal advised that it would reserve its decision.

   QUESTION BEFORE THE TRIBUNAL

10. Is the Tribunal satisfied that the Applicant is of good character at the time of this decision? (See s 21(2)(h) of the Act.)

    Applicant’s contentions

11. The Applicant’s submissions referred to his fight with his wife. The Applicant submitted that he was stressed at the time of the offending and that he took responsibility ‘for his mistakes’. The submissions referred to Mr Selamat engaging with the Department of Justice and Community Safety and with Relationships Australia to ‘avoid repetition of this behaviour’. It was submitted that he had also attended a psychologist for mental health treatment that ‘he had successfully changed his character to good behaviour’ and had completed the CCO imposed by the Magistrates’ Court.

12. The submissions were that the Applicant had been allowed to return to his family and that there were no ongoing Court matters relating to him. It was submitted that he maintained good relationships at his work with his colleagues and participated in community events and maintained good relations with relatives and friends in Australia.

13. Ms Warnakulasuriya also contended that Mr Selamat understood the nature of his application, possessed a basic knowledge of the English language, and had an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. However, these requirements could only be satisfied if the person applying for citizenship had sat and successfully completed a citizenship test approved by the Minister (s 21(2A) of the Act).  After the hearing, the Tribunal wrote to Mr Selamat’s legal representatives to inquire whether he has successfully completed the citizenship test. The response was that he had not. The Tribunal therefore rejected these particular three submissions because they were conditional on the test having been completed. If the Applicant was successful in this review, the matter would be returned to the Minister’s Department for the remaining requirements to be assessed.

    Respondent’s contentions

14. The Minister contended that the Tribunal could not be satisfied that the Applicant was of good character due to his criminal history, the nature of his offending, the relatively short period of time that has elapsed since the offending and the short period of time since the expiry of the CCO. The Respondent submitted that some of the statements provided in support of the Applicant did not indicate that the authors were aware of his offending, so no weight should therefore be afforded to them.

15. The Respondent accepted that Mr Selamat was putting in effort and had taken steps to improve his relationship with Ms AW, and that there was no evidence that the relationship had fallen away. The Respondent noted that Ms AW was now pregnant with the couple’s third child, due any day. In the written submissions the Respondent submitted that the Tribunal should find that the Applicant was not remorseful for his actions, but Ms Stone altered this slightly to submit that in his oral evidence Mr Selamat gave excuses, but not explanations for his actions, so it was the Respondent’s submission that it was open to the Tribunal to find that he was not showing remorse.

    LEGISLATIVE SCHEME

16. Section 21(2) of the Act sets out the general eligibility requirements for citizenship. The Minister (or his delegate) must be satisfied that the person is aged 18 or over at the time of the application (s 21(2)(a)), is a permanent resident (s 21(2)(b)); satisfies the general residence requirement (s 21(2)(c)); has sat a test approved by the Minister indicating he or she (i) understands the nature of the application, (ii) possesses a basic knowledge of English and (iii) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship (s 21(2A)). In addition, the person must be likely to reside, continue to reside or maintain a close and continuing relationship with Australia (s 21(2)(g)), and lastly, that the person is of good character at the time of the minister’s decision on the application (s 21(2)(h)). In the case of Mr Selamat’s application, the delegate was satisfied he was over 18, was a permanent resident and satisfied the general residence requirement. The requirements relating to the citizenship test were not assessed, nor was the provision in s 21(2)(g) because the delegate was not satisfied he was of good character at the time of the decision (s 21(2)(h)).

17. Section 21(2)(h) provides that the Minister (or in this case the Tribunal) be satisfied that the person is of good character at the time of the Minister’s decision. The time period is important, because the Tribunal must make a contemporary assessment of Mr Selamat’s character now, not at the time he applied for citizenship in 2016 or when it was refused by the delegate in May 2022. It was the requirement under s 21(2)(h) that the delegate found the Applicant did not satisfy. The consequence was that the application was refused under s 24(1) of the Act which requires that the Minister must approve or refuse a person becoming an Australian citizen. It is important to note that there is no provision for putting an application to one side until a requirement is met; the Parliament has stipulated that an application for grant of citizenship must be approved or refused.

18. The Tribunal does not have the power to confer citizenship. If Mr Selamat is successful in this matter, the refusal decision would be set aside with a direction to the Minister that he satisfies s 21(2)(h) of the Act. A delegate of the Minister would then need to go on to consider the remaining requirements for Australian citizenship by conferral which have not been assessed.

    The concept of ‘good character’

19. The Courts have considered the term “good character” on several occasions, especially in relation to the character provisions in the Migration Act 1958. A leading case is Irving and Minister of State for Immigration, Local Government and Ethnic Affairs [1996] 68 FCR 442 (Davies, Lee and R.D. Nicholson, JJ) (‘Irving’). In Irving, Lee J at [431] relevantly said:

    Unless the terms of the Act and regulations require some other meaning to be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proven as a fact whilst the latter is a review of subjective public opinion.

20. The case of BOY19 v Minister for Immigration and BorderProtection [2019] FCA 574 (‘BOY19’) related to the character provisions relating to citizenship by conferral. O’Bryan J referred to previous judgments about the term “good character” in the Migration Act and then stated, at [54] to [55]:

    Section 21(2)(h) requires the Minister to form a judgment as to whether he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite. Second, the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion…...In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is of good character; equally it is not necessary for the decision maker to have a high degree of confidence that the person is of good character.

21. His Honour then said, at [87] to [88]:

    As discussed earlier, the phrase “good character” refers to the enduring moral qualities of a person and not to their physical or mental attributes or abilities.  The expression does not have a fixed and precise content and necessarily imports a discretionary value judgment informed by the subject matter, scope and purpose of the Act. The expression is concerned with moral qualities that are regarded as a necessary concomitant of Australian citizenship.

    Consistently with Chapter 11 of the Citizenship Policy 2016, respect for the Australian Government and the laws of Australia, and respect for the institutions of government including governmental departments, is consistent with being of good character in the statutory sense. Such respect can be characterised as a moral quality that is relevant to citizenship. Conversely, disrespect for the Australian Government, the laws of Australia and governmental department reflects adversely on a person’s character in the statutory sense.

    (Footnotes omitted.)

22. The Department has issued a set of Citizenship Procedural Instructions (CPIs) to assist officers of the Department considering applications. The Tribunal should give due regard to the CPIs because to do so promotes consistency in decision-making. However, the CPIs are not a legislative instrument and have no standing other than as a departmental manual. Where the contents of a CPI are inconsistent with the Act, the Act must prevail. Equally, where applying a CPI might lead to an illogical or unreasonable outcome, it should not be applied.

23. The relevant part of the instructions is CPI 15 – Assessing Good Character under the Act. CPI 15 contains the following statement: The good character requirement necessitates consideration of an applicant views in a holistic way; that is, all aspects of his/her life may be relevant to consideration and character.

24. CPI 15 then goes on to pose various questions that should be considered when assessing an application. The questions and the responses, as relevant to the Applicant on the information before the Tribunal, are as follows.

    General conduct

25. Is the applicant a risk to national security? While the delegate did not assess the security considerations in ss 24(4) and (4A) of the Act, there is no evidence before the Tribunal suggesting this is a factor in the case of the Applicant.

26. How has the applicant behaved in their interactions with government officials? There is no evidence of Mr Selamat having any unsatisfactory interactions with the Department or another government agency. He has been compliant with orders made by the Courts.

27. Has the applicant debts to the Commonwealth? There is no information before the Tribunal about this.

28. Does the applicant have associations of concern? The Respondent did not contend that this was relevant to the refusal decision. 

29. Is the Applicant a family member of a person who has committed an offence? There is no evidence of any offending by any member of the Applicant’s family.

    Offending conduct

30. Were offences declared? Are there any ongoing obligations such as a good behaviour bond? Both the traffic offences and the group of domestic violence offences occurred after Mr Selamat had lodged his application for citizenship in 2016. In relation to the traffic offences, no convictions were recorded, and Mr Selamat paid $50 to charity. In relation to the group of domestic violence offences, in the Respondent’s tender bundle was an Order Completion Report of the Victorian Department of Justice dated 21 December 2021 stating that the Applicant’s CCO ‘has been officially discharged as satisfactorily completed’. The delegate found that Mr Selamat was not prohibited from being approved for citizenship because of the terms of s 24(6) of the Act which relates, among other things, to continuing compliance to conditions imposed by a Court. The Tribunal is also satisfied that as from 21 December 2021 there are no ongoing Court-imposed orders relating to Mr Selamat.

31. Was the victim of the offending a child, elderly, disabled or a person who was reliant on, or placed trust in, the applicant? In relation to the domestic violence group of offences, the victim was the Applicant’s wife, Ms AW. The victim was not elderly nor, on the information before the Tribunal, disabled. It would be fair to conclude that Ms AW would have placed trust in her spouse which was breached when he assaulted her, first with his fist and then with the branch of a tree.

32. Is there a pattern of criminal behaviour? The national coordinated criminal history check produced by the Australian Criminal Intelligence Commission dated 13 May 2022 (TD, pp 88-89) details two Court appearances, in relation to the two traffic offences in October 2018 and in relation to the five domestic violence-related offences in November 2020. No other offending is recorded. On this basis, the Tribunal does not find that there is a pattern of criminal behaviour.

33. Was the offence premeditated? In relation to the traffic offences, the evidence of the Applicant was that he was driving on the Sydney Road in Melbourne early one morning, having visited some friends. The headlights on his car were not working properly so he used a fog light in substitution. He was pulled over by the police and subsequently two charges were proven against him without conviction, with him to pay $50 to charity. The Tribunal does not place any significant weight on these two traffic offences.

34. In relation to the events of 4 October 2020 a police report was before the Tribunal (TB, p 17-18). Mr Selamat made clear in his oral evidence that he accepted the summary in the police report in almost its entirety, so the Tribunal is satisfied to rely on its contents. The police report stated that on the evening of 4 October 2020 at their home an argument developed between the Applicant and Ms AW. The report stated:

    The accused punched the victim in the forehead with the closed fist causing her intense pain and swelling. The accused then took a large kitchen knife from the drawer and walked out to the backyard. The victim was very scared and watched the accused through the window. She saw the accused use the kitchen knife and cut off a large, thick branch from the tree. The accused approached the victim who was in the family room and stated that he was going to teach her a lesson. The accused started hitting the victim with the wooden stick on her back three to four times. The accused continued hitting the victim numerous times on her right arm and shoulder. The accused was holding the wooden stick with both hands and using his full strength whilst hitting the victim.

    The victim ran to the kitchen to grab her phone to call 000. The victim picked up her mobile phone and the accused hit her on the right forearm again causing the phone to fall to the floor. The victim raised her left arm to protect her head as the accused was hitting her repeatedly causing her intense pain. The accused also used the wooden stick to smash the victim’s phone which was lying on the ground. The front screen of the victim’s phone was smashed.

    Their two children were inside the house when this assault occurred and are believed to have witnessed the ongoing assaults. The victim stated that at some stage during the assault, the children went into their bedroom and locked themselves inside. The accused pulled the victim by her arm into the backyard and locked her out of the house.

1. The evidence of Ms AW is that, after she was locked out of the house, she walked to a local service station and rang for an ambulance, and the police attended as well. The ambulance took her to hospital. The police spoke to an attending doctor who reported ‘massive swelling’ to Ms AW’s right arm and some deformity which it was suspected might mean a fracture. There was also a bruise to Ms AW’s forehead, tenderness around the neck and bruising and tenderness to her right shoulder and arm. Further medical investigations revealed no fracture.

2. The police attended the Applicant’s residence. He showed them the stick and the broken mobile phone. He was arrested and taken to hospital, complaining of chest pains. He was then placed in police custody and subsequently charged. Mr Selamat told the Tribunal he went to a prison for two weeks, then to another for six weeks. When he appeared before the Magistrate his ‘time served’ was taken into account. He said he was issued an IVO for four months and ordered to participate in a Men’s Behaviour course. He said he was not permitted to return to the family home so lived with a friend for five or six months until he finished the course.

3. Mr Selamat said that when he was in custody his wife visited him, but the children were not permitted to, because of the terms of the Court order. He told the Tribunal that he and his wife have repaired their relationship and she is expecting their third child, due imminently.

4. Under cross-examination the Applicant agreed that he punched his wife on the forehead and that he then cut a branch from a tree and hit her with it. He said, “I hit her on the hand, not on the back,” but when taken to the wording of the police report, Mr Selamat said, “I accept what the police said.”

5. He agreed that he smashed his wife’s phone when she tried to call the police, that he then locked her out of the house and that she then went to a local petrol station and called police. He agreed his wife was taken to hospital. He agreed that their two young children (b 2014 and 2016) were present, and saw him hitting his wife.

6. Mr Selamat agreed that the Department wrote to him in May 2022 inviting him to comment on adverse information and, in response, he sent a statement dated 18 May 2022 (TD, p 93) which relevantly said:

   This matter happened in October 2020 during the Covid-19 pandemic lockdown in Victoria. I underwent some work stress and health issues, especially my sleeping problem and I have to take a lot of medication for relief. Continuing unwell sleep and headache. I had an argument and fight with my wife and also, I impulsively damaged her mobile phone. When I calmed down, I felt so sorry for my family, and I think I should be responsible for my actions. I have been charged with a Community Corrections Order for 12 months by Dandenong Magistrate court.

7. Ms Stone asked the Applicant if this was an accurate summary of the incident. He responded, “Yes, everything correct.” She then asked if he thought the statement minimised what actually occurred. Mr Selamat responded, “I’m not trying to minimise. I agree with the police report.”

8. Ms Stone referred to another statement Mr Selamat provided to the Tribunal (Exhibit A9) in which he wrote:

   I underwent some work stress and health issues, especially my sleeping problem and I have to take a lot of medication for relief. With continuing unwell sleep and headache, I had an argument and fight with my wife accidentally. I have been charged with a Community Correction Order for 12 months by Dandenong Magistrate court. I behaved badly because of the stress I had at those times, but I was always worried when I thought about those things when my anger subsided. Therefore, I take responsibility for all those mistakes.

   My wife and I have been married for 7 years; we have two lovely children. They are very important to me. So, I continued to engage with the Dandenong Department of Justice & Community Safety and Relationships Australia. For the actions I have taken to avoid repetition of this behaviour, first I joined the Men’s behaviour changing program for 20 weeks to learn how to manage anger which was provided by Relationships Australia Victoria. Secondly, I attended the LINCS Family Program arranged by Dandenong Department of Justice & Community Safety. Lastly, I went to my psychologist for mental health treatment. With all those things, I successfully, changed my character in good behaviour. Then the Dandenong Magistrate’s Court finalised the completion order confirming that my order has been officially discharged. With that I allowed to go back to my family.

9. Mr Selamat was asked about this statement and his description of the argument with Ms AW happening “coincidentally” and “accidentally” and that he did not mention that he hit his wife with a stick. The Applicant responded that the statement had been prepared for him by someone he knew in the community. Ms Stone suggested that the Applicant had intentionally omitted that he hit his wife. Noting that he had signed it, the Tribunal then asked the Applicant whether he told the person helping him what to put in the statement. He responded: “They have mistakenly not put it here. I had told them…I agree with the police report and what happened in Court; I am not actually hiding information.”

10. Mr Selamat said he had seen a psychologist as referred by his general practitioner six or seven times, once a week. He said this was separate to the Men’s Behaviour course he had done with Relationships Australia.

    Evidence of Ms AW

11. Ms AW said she and the Applicant had been married for ten years. She said that the incident in October 2020 began when they had an argument about cooking; he wanted her to get food ready for the children. However, Ms AW had been having a conversation on the phone with a friend instead. She corroborated the evidence in the police report about what took place.

12. Ms AW said: “He went to gaol for six weeks. He got an IVO. During this time, he tried to contact. He was very regretful for his behaviour. He did the programme course. He did everything the Court ordered for him. He really loves his family. He wanted everything back to normal and [when living away] still supported us for accommodation and food and daily bills. After six months the Court varied the order to let him back home early.”

13. Ms AW said that there has been no further incident. She said she is due to give birth to their third child very soon.

14. In response to direct questions from the Tribunal, Ms AW said that there had been no prior incidents of concern relating to the behaviour of the Applicant before October 2020.

    Evidence of Dr Jo Hur, general practitioner

15. Dr Hur said she had been treating the Applicant for almost five years. In respect of his general health, she said he has a well-controlled reflux condition, hypertension and that he sees a gastroenterologist relating to a liver condition, just for monitoring. She said she had referred him to a nearby psychological clinic as part of a mental health plan.

16. When asked what she knew about the Applicant’s unlawful conduct, Dr Hur said Ms AW was also her patient and had reported domestic violence to her. She said she still sees both the Applicant and Ms AW. She said: “At the time of the incident, he was stressed. I saw Ms AW often. She wanted to make things better with him. He did, too, and to have a stable family life. They tried to come into the surgery together.”

    Evidence of Ms Manyang Zhuang, friend

17. Ms Zhuang said she had got to know the Applicant in 2012 as he and his family had been neighbours. She said: “He is a decent person. Kind to his wife, his parents-in-law. Kind to my kids. He came to my home sometimes to help when something was broken. He is a kind and gentle person.”

18. When asked if she ever saw any violence or misbehaviour, Ms Zhuang responded, “No; absolutely, no.”

19. Ms Zhuang said she frequently saw Mr Selamat and Ms AW and his parents-in-law, and there was a good relationship between her family and his.

20. Under cross-examination, Ms Zhuang said she had only been asked by Mr Selamat to “keep eyes on a phone call” and “just answer your questions, tell the truth”. She did not know the purpose of the hearing. She said she did not know if the Applicant had a criminal record. 

21. In answer to a direct question from the Tribunal, Ms Zhuang said the Applicant and his family moved away from her in around 2018 when they bought their current house.

    Evidence of Mr Sayed Hussain, friend

22. Mr Hussain said he had known the Applicant for eight to ten years. He described Mr Selamat as a “good person. Worker. Family man. No issue with the family as far as I understand.”

23. When asked if he had heard anything about misbehaviour or misconduct, Mr Hussain said, “Yes, I heard a little bit. He had depression and mental health issues at that time and there was a problem with his conduct.”

24. Under cross-examination, Mr Hussain said he had been asked to give telephone evidence. He said he did not know the question the Tribunal was considering. Mr Hussain said he understood the Applicant had an argument with his wife: “He told me he’d been arrested and taken into custody. Told me it was a bad situation.”

25. Ms Stone asked Ms Hussain whether the Applicant told him why he was arrested. He responded that Mr Selamat said to him, “‘Slapped wife, that’s why police arrested me’ – I also asked his wife, and she told me that.”

26. Mr Hussain said he visits the Applicant and Ms AW frequently and that things were “much better than before”.

    CONSIDERATION

27. As discussed above, the Tribunal must make decide whether it has an affirmative belief that satisfies it that the Applicant is now of good character.

28. There are a number of qualities of the Applicant that support such a finding. He has a solid work history. There is evidence that he is active in his local community and a supporter, for example, of his local mosque (Exhibit A8).

29. Before the Tribunal is a letter from Mr Mohammed Amin, Chairman of the Australian Burmese Rohingya Organization (TD, p 92) dated 19 May 2022. Mr Amin was listed to be called in evidence, but contact was unable to be made. He relevantly records in his letter that Mr Selamat is known to the Organization since 2013 when the Applicant moved to Melbourne. He wrote:

    As far as we know, he is a good father of two kids in Australia and looking after family back home. He is only one lucky to be here in Australia from his family, a hard working and an emerging businessman like him must therefore be given priority in becoming Australia citizen. We also acknowledge that he is one of the Rohingyas successfully contributing to Australia thru his hard works.

30. In considering whether the Tribunal is satisfied that a person is of ‘good character’, it is important not to conflate the notion of ‘good character’ with ‘good reputation’. A person may be well-regarded by his friends and in his local community but nonetheless not be of good character because of conduct of which they are unaware. Equally, a person may have done a terrible thing in the past, which is known, but may have redeemed him or herself by subsequent good conduct and no repetition of the notorious conduct. The first person in these examples might not be found to be of good character, and the second person might be.

31. It is also important to keep in mind that a failure to be satisfied of an affirmative belief that a person is of good character for the purposes of s 21(2)(h) of the Act is not a finding that the person is of ‘bad character’.

32. In this particular case, Mr Selamat is not a person who has a pattern of bad conduct. The evidence of Ms Zhuang records that he was a good and reliable neighbour, who she would trust with her own children. Mr Hussain also spoke of his good qualities, and Mr Amin wrote that he was successful in business and contributing positively to Australia. However, neither Ms Zhuang nor Mr Hussain had an appreciation of what happened in October 2020 which led to the domestic violence convictions. That considerably lessens the weight I give to their evidence.

33. Along similar lines, Mr Amin as a community leader has written – no doubt entirely truthfully – of his views on Mr Selamat’s role in the community and his knowledge of him as a hard-working family man. Again, however, the weight I give this letter in regard to an assessment of character is diluted because it is not apparent Mr Amin was aware of the Applicant’s convictions.

34. When Mr Selamat applied for citizenship in 2016, he had no convictions. As I say above, I place no significance on the two 2018 related traffic offences; they are regrettable but isolated and do not reflect any pattern of dangerous driving conduct. It would appear the related offences were committed in a well-lit built-up area, as the result of faulty headlights. A motorist is expected to ensure his vehicle is roadworthy, but these offences are not at the higher end of the range of traffic infringements, as is reflected in the penalty imposed.

35. However, I regard the 2020 domestic violence offences as serious. It was bad enough for the Applicant to strike his wife, but for him to then go out into the garden with a knife, cut a  branch from a tree to use as a weapon, and then to  hit her further, displays a deliberateness that is particularly concerning. Mr Selamat admitted that their two young children witnessed the altercation between their parents. They were old enough at the end of 2020 for that incident to have been frightening – and children are entitled to expect protection, security, and safety from both their parents, and not to be exposed to violence; especially not in the home.

36. The delegate gave ‘significant weight’ to the Applicant’s health problems in his behaviour in October 2020. I give no such weight. The evidence of Dr Hur was that Mr Selamat is in general good health. I am not satisfied that ‘stress’ of itself is any foundation for physical violence against a family member. The Applicant’s smashing of his wife’s mobile phone when she tried to call for emergency aid is also a violent act, and redolent of coercive control. I note that even though the Magistrate knew the Applicant had no prior convictions to his name, he imposed convictions on all charges.

37. The Respondent submitted that it would be open to the Tribunal to find that Mr Selamat was not remorseful for his actions. I do not make that finding. Making allowances for vocabulary choices when a person’s first language is not English, I consider that the Applicant is genuinely regretful for what he did. I do not necessarily accept his evidence that he told the person helping him with his statement about the actual physical assault, and they simply did not include it. That is highly unlikely. It is more likely that Mr Selamat did not fully explain to the scribe what actually occurred. But that is potentially because of embarrassment, not necessarily owing to a lack of remorse.  Regrettably, the person who helped with the statement was to be called as a witness but could not be contacted to give evidence.

38. I accept that the Applicant has reconciled with his wife and that they are trying to put the matter behind them. I note (Exhibit A5) that Ms AW applied for a variation to the IVO to permit Mr Selamat to return to reside at the family home. This was supported by the Victorian Department of Health and Human Services Child Protection unit, and the variation was made on 16 June 2021.

39. I note that, at the request of the Tribunal, the Applicant after the hearing provided a letter from Mrs Diana Arzuman, registered psychologist, stating that she saw Mr Selamat for four sessions between May and July 2021 where she administered cognitive behavioural therapy and relaxation exercises. Mrs Arzuman states that she was aware that the Applicant had been violent towards his wife after losing his temper and that, in her words, he ‘felt very remorseful afterwards’. It is encouraging that the Applicant initiated this treatment, above and beyond the courses ordered by the Court, because it indicates a self-awareness that he needed to address his anger management, and that he knew his conduct was completely unacceptable. It is also clear from her letter that he fully disclosed to Mrs Arzuman that he had committed domestic violence.

40. However, the fact is that the Applicant committed these offences after he had applied for Australian citizenship. The Preamble in the Act recites that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia. And relevantly goes on:

    The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:

    …

    (d)         by upholding and obeying the laws of Australia.

41. The Applicant said a number of times in his oral evidence that he knew what he did was wrong. He suggested some context to the conduct, relating to health issues, stress, and work pressures. In his written statement he also cited the effects of the pandemic lockdown (though he did not raise this in his oral evidence). None of these amount, in the Tribunal’s view, to any excuse for the physical assault on his wife.

42. I am satisfied that Mr Selamat has been compliant with the orders of the Court and has undertaken the behavioural courses required of him. I also accept that he has separately initiated psychological counselling to try and improve his mental health.

43. I am required to arrive at a state of affirmative belief to be satisfied that the Applicant is of good character, such that he satisfies s 21(2)(h) of the Act. On the evidence, his obligations to the Court concluded on 21 December 2021. That is not yet eighteen months ago. Combining the relative recency of that, and the fact that the offending conduct was after he had lodged his application for citizenship – well aware of the expectations inherent in the conferral of citizenship, which are in both the Preamble and in the Pledge of Commitment each non-exempt aspiring citizen must take (Sch 1 of the Act) – I find that the Tribunal is unable to be satisfied the Applicant is of good character as at the date of this decision.

44. Mr Selamat must display, not only by his public acts, but by his personal and private conduct, including towards his wife and family, that he is indeed a person who can be regarded as of good character and that he demonstrates, in the phrase used in Irving and BOY19, enduring moral qualities. He has taken positive steps to correct his offending behaviour, and that behaviour may be accepted as out of step with his normal conduct. But I find that more time during which there is no offending needs to elapse before a positive determination on character can be made.

45. The decision of the Tribunal will be to affirm the reviewable decision. This decision does not have an effect on Mr Selamat’s current status as a permanent resident of Australia. He is at liberty to make a future application for Australian citizenship, if he so chooses, once a period of time has passed and there is no adverse conduct.

    DECISION

46. The decision under review is affirmed.

1.        

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

.................................[SGD].......................................

Associate

Dated:   21 April 2023

Date of hearing: 11 April 2023

Advocate for the Applicant:               Ms Madhu Warnakulasuriya

Solicitors for the Applicant:                Warna Legal

Advocate for the Respondent:           Ms Michelle Stone

Solicitors for the Respondent:           The Australian Government Solicitor

Annexure

Schedule of Exhibits

Documents lodged under s 37 of AAT Act (TD)  Exhibit R1

Tender Bundle of Evidence (TB)  Exhibit R2

Application for Intervention Order, 4 November 2020  Exhibit A1

Family Violence Interim Order, 5 November 2020  Exhibit A2

Family Violence Intervention Order (FIVO), 18 November 2020      Exhibit A3

FIVO Variation, 1 June 2021  Exhibit A4

CCO Completion Report, 21 December 2021  Exhibit A5

Updated witness statement, Dr Jo Hur, 16 June 2022  Exhibit A7

Receipt of donation to Mosque  Exhibit A8

Applicant’s undated submission  Exhibit A9