Shahzad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2020] AATA 4722

Shahzad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4722 (26 November 2020)

Division:GENERAL DIVISION

File Number(s):      2020/0564

Re:Khurram Shahzad

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:26 November 2020

Place:Sydney

The Tribunal affirms the reviewable decision.

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

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – refusal – good character requirement – assault occasioning actual bodily harm – domestic violence – one-off act – insight and rehabilitation – reviewable decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Migration Act 1958 (Cth)

Migration Regulations 1989 (Cth)

CASES

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

SECONDARY MATERIALS

Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

26 November 2020

1. Migration is a journey requiring both courage and fortitude. For many, the transitional settling-in phase is painful and difficult. Migration with a young family is not for the faint of heart. It can be a gruelling experience.

2. The applicant is a 36 year old citizen of Pakistan.[1] He is married with three children. He entered Australia on 24 November 2013, on a Skilled Sponsored (subclass 176) visa issued nine days earlier.[2] On 22 April 2014, he punched his wife in the face and chest during a domestic argument, an act he later described as ‘horrific’.[3] On 6 May 2014, he was convicted of assault occasioning actual bodily harm (DV)-T2 and sentenced to a good behaviour bond for a period of 18 months.[4]

   [1] T4/194.

   [2] T2/14.

   [3] T1/7.

   [4] T14/310.

3. On 24 November 2017, he lodged an application for citizenship by conferral under the Australian Citizenship Act 2007 (Cth) (the Act).[5] On 21 January 2020, the application was refused by a delegate of the respondent under subsection 24(1) of the Act (the reviewable decision).[6] The delegate was not satisfied that the applicant was of good character, as required by paragraph 21(2)(h) of the Act.[7]

   [5] T4/158-185.

   [6] T2/10-21.

   [7] Ibid.

4. On 23 January 2020, the applicant lodged an application for review of the reviewable decision with the Administrative Appeals Tribunal (the Tribunal).[8] He said that he was living with his wife and three children happily in ‘a stable and well balanced life’ and had ‘developed an excellent relationship with community members’.[9]  He emphasised that there were no other criminal acts before or after the ‘horrific act’.[10]

   [8] T1/4-9.

   [9] T1/7.

   [10] Ibid.

   THE LEGAL FRAMEWORK

5. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

6. Subsection 24(1) of the Act provides that if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

7. Subsection 24(1A) of the Act provides that the ‘Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2)…’.

8. Relevantly, paragraph 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application’.

9. The term ‘good character’ is not defined in the Act, but it is addressed in the Citizenship Policy (the Policy). Chapter 11 of the Policy defines ‘good character’ for administrative purposes and provides a framework for assessing an applicant under the provisions of the Act.[11] 

   [11] T3/83.

10. The Full Court of the Federal Court had cause to consider the expression ‘good character’ in a different statutory context in Irving v Minister of Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422. This case involved a refusal by the relevant Minister to grant a Business Visitor (Short Stay) visa to Mr David Irving, a prominent British historian, who had been convicted of offences in Germany for making comments about the Holocaust. He had been expelled from Germany and also deported from Canada. The Minister was therefore not satisfied that he was of good character. The Ministerial decision was upheld by the Federal Court at first instance and a subsequent appeal of this decision was dismissed by the Full Court of the Federal Court.

11. Davies J stated at 425:

    It should also be observed that the term "good character" is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute. See Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5… If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

12. In an oft quoted passage, Lee J stated at 431-432:

    Unless the terms of the Act and Regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

    (emphasis added)

13. Davies J stated at 424-425:

    The question whether a person is or is not of "good character" is primarily an issue of fact. It is not the function of this Court to form its own view of such a fact. Provided that the decision-maker has approached the issue correctly, has acted in accordance with the principles of procedural fairness, has taken into account all material factors, has disregarded immaterial factors and has reached a decision which was open on the material, which is to say that the decision made was not one which no reasonable decision-maker would have made, then this Court will not grant an order of review…

14. Davies J further stated at 427-428:

    I should reiterate that the issue for decision was an issue of fact, the determination of which Parliament reposed in the Minister and his delegates. It is not the task of this Court to come to its own view of that fact. The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of "good character" requires the exercise of a value judgment. There are no precise parameters which distinguish "good character" from "bad character". Although, in general, "good character" can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision. Once the decision has been made, it matters not that another decision-maker may have concluded differently. The decision will stand unless an error of law is established, eg., that the decision was such that no reasonable decision-maker could have arrived at it. No such error has been established in the present case.

    ISSUE

15. The sole issue for the Tribunal to determine is whether the applicant is of good character for the purposes of paragraph 21(2)(h) of the Act, by taking into consideration the material that was before the delegate of the respondent and any new material that is before the Tribunal.

    THE HEARING

16. The applicant tendered a number of character references from friends and work colleagues as evidence of his good character and was cross-examined at some length by the respondent’s solicitor. The Tribunal heard oral evidence from the applicant, his wife and four character witnesses.

17. Considerable time was spent on the domestic violence incident which occurred in 2014, for which the applicant was convicted of assault occasioning actual bodily harm and sentenced to a good behaviour bond of 18 months duration.

18. The essential facts are as follows. Approximately six months after arriving in Australia, the applicant lost control of his temper and struck his wife after chastising her for interfering, as he saw it, while he was playing with one of their children.[12] He punched her to the face and chest.[13] She suffered bruising and swelling as a result.[14] When she attempted to call the police, the applicant took her phone away.[15] He was arrested the following day, and later convicted as described above.[16] His wife and he reconciled shortly thereafter, and there have been no further incidents. They now have three children, another born after the incident.

    [12] SM2/40.

    [13] Ibid.

    [14] SM2/41.

    [15] Ibid.

    [16] Ibid; T14/310.

19. The applicant said that his behaviour was caused by stress.[17] He was adjusting to a new employment environment and under considerable pressure to find work.[18] He was trained as a chemical engineer, but his qualifications were not recognised in Australia.[19] He had obtained alternative employment, but it was relatively menial and did not provide his family with a sufficient standard of living. He considered that he had special responsibilities as ‘head of the family’ to ensure the material well-being of the family.[20] He said that his wife was not aware of his anxiety and stress.[21]

    [17] Transcript dated 17 November 2020, 15; 30.

    [18] Ibid 15.

    [19] Ibid 13; 29-30.

    [20] Ibid 27.

    [21] Ibid 15-16.

20. The applicant did not deny the contents of the police report or that he had punched his wife. He said he could not remember specifically punching her, but he definitely hit her.[22] He accepted and adopted his wife’s description of his behaviour.[23] He expressed remorse.[24]

    [22] Ibid 21.

    [23] Ibid.

    [24] Ibid 25.

21. He said that he had reflected deeply on his behaviour and adopted strategies aimed to assist him in reducing stress levels, including a focus on diet, family time, not taking work home and so on.[25] He said that his behaviour was out of character and has not been repeated.[26]

    [25] Ibid 11.

    [26] Ibid 29-30.

22. His personal development studies were mostly self-directed studies from the internet; but he has recently commenced anger management sessions in person and has attended three classes.[27] There has been one session touching on domestic violence.[28]  He has not taken any courses dealing specifically with this topic.

    [27] Ibid 29.

    [28] Ibid 31.

23. He understood that domestic violence was problematic because of the serious damage to reputation and income and the corresponding financial strain on the family. He said that in purely material terms they were not as well off as they would have been had the incident not occurred.

24. When asked whether he had intended to ‘control’ his wife, he strongly denied that this was the case.[29]

    [29] Ibid 20.

25. The applicant agreed to leave the hearing so that his wife could give evidence to the Tribunal without any inhibition.

26. She said the applicant’s offence in 2014 was the first incidence of violence in their relationship.[30] She called the police because she did not want any repetition of his behaviour.[31] My overall impression is that she is a strong and confident woman who has taken difficult steps to save her marriage. 

    [30] Ibid 44.

    [31] Ibid 45.

27. There was no inconsistency between the evidence given by the applicant and his wife on any of the material facts.

    CONSIDERATION

28. The applicant can hardly deny that as someone convicted of a serious crime he was at that time held in contempt by the community.  At that point, in 2014, it could not be said that he was of good character. The question for the Tribunal is whether he has reformed and is now of good character.

29. The applicant has many positive qualities, including his commitment to providing a high standard of living for his family.

30. The large number of character references show that by and large he is respected by friends and work colleagues. However, there is a question mark as to how much detail he provided his referees about the assault. One of his referees effectively withdrew his reference when presented with evidence that the applicant had punched his wife.[32]

    [32] Ibid 75.

31. Domestic violence is an insidious force that stalks many families. It is not uncommon for victims of domestic violence to downplay the level of violence within a relationship in order to preserve the relationship and mitigate the collateral damage that inevitably flows from a conviction for domestic violence, including, within the context of non-citizens, the real prospect of removal from Australia. Many complaints are withdrawn and therefore the behaviour is not exposed as truly criminal. There are strong forces that favour silence and covering matters up. The seriousness of the offence creates a double edged sword for many families, especially migrant families.

32. I have reflected on the fact that as a family unit, the applicant’s wife will be seriously prejudiced if the applicant fails to acquire Australian citizenship. Unfortunately, this is not a factor that can be taken into account in assessing whether the applicant is of good character at the present time.

33. The fact that the New South Wales Parliament enacted legislation in 2007 to deal with the issue of domestic violence is proof positive of the gravity of the issue.[33] The Australian community would be surprised to know that a person who has committed an act of serious violence within a domestic context may be seen to be of good character. A person may redeem a very bad act with a high level of remorse, insight and acceptance. But, without strong evidence of a positive change of attitude, even a relatively minor offence of this nature may indicate that a person is not of good character.

    [33] Crimes (Domestic and Personal Violence) Act 2007 (NSW).

34. Where the incident is a solitary lapse in an otherwise unblemished record, a decision-maker will no doubt look for signs of comprehension, remorse and reform. The effluxion of time must also be considered.

35. Despite the passage of some six years since the offending, I am not satisfied that the applicant has gained a sufficient level of insight into his own behaviour and beliefs which led to him inflicting violence on his wife.

36. Having heard from the applicant, his wife and several character witnesses, I think the applicant has a way to go before it can be said that this issue is behind him. Taking into account the intrinsic nature of the act itself, I find that his levels of understanding and insight fall significantly below the standard expected of a person of good character seeking to redeem his or her good name.

37. The applicant sees the issue largely through the prism of damage to living standards, material well-being, and his professional career opportunities. These matters are of course important, but they do not go to the heart of the issue. He recognises the community’s outrage at domestic violence, but I did not get a sense that he sees it primarily as a grievous violation of his wife’s unquestioned right to be free from fear of violence from her husband and safe in her own home. Nor did he see domestic violence as symptomatic of a desire by the perpetrator to control another as a subordinate party in the relationship. He simply denied that he intended to control her, but by hitting her in the way that he did he was attempting to do just that.

38. In the aftermath of the offence, the applicant has not focused specifically or sufficiently on resources that deal with domestic violence. Therefore he lacks a theoretical understanding, or for that matter, practical resources, to mitigate the possibility of future harm. I would expect a person of good character, recovering from an incident such as this, to have acquired such knowledge.

39. This particular case does not simply turn on the amount of time that has passed since the offence was committed, in this case, some six years. His past behaviour came close to destroying his family. With respect to the degree of violence involved in this assault, I note that any striking is unlawful, whether with a fist or an open hand. An assault may cause lasting and unpredictable damage, as well as serious psychological harm. Threats or acts of violence committed within a domestic context are wholly incompatible with a claim to be of good character. Significant remorse and remedial action must be involved in rehabilitating one’s character.

40. Although this was a solitary incident, and despite his many positive attributes, I find with some regret that the applicant does not satisfy the requirement of good character, as required by paragraph 21(2)(h) of the Act.

41. I note that the applicant may apply for citizenship again. I strongly recommend that he takes steps to develop greater awareness and insight into this insidious problem, and to develop practical resources in order to better to protect his family from any recurrence.

    DECISION

42. I therefore affirm the reviewable decision.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated: 26 November 2020

Date(s) of hearing:	17 November 2020
Applicant:	In person
Solicitors for the Respondent:	Clayton Utz