Sharma and Minister for Immigration and Multicultural Affairs (Citizenship)
[2025] ARTA 354
•10 April 2025
Sharma and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 354 (10 April 2025)
Applicant/s: Manav Sharma
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/4586
Tribunal:General Member A. Maryniak KC
Place:Melbourne
Date:10 April 2025
Decision:The decision under review dated 13 June 2024 is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the direction that the Applicant is of good character for the purposes of s 25(2)(b)(iii) of the Australian Citizenship Act 2007 (Cth).
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General Member A. Maryniak KC
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – cancellation of approval on character grounds – whether Tribunal considers Applicant is not of good character – Citizenship Policy – whether non-convictions may be considered in assessing character – decision under review set aside and remitted
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Joud and Minister for Immigration and Multicultural Affairs [2025] ARTA 64Grass v Minister for Immigration and Border Protection [2015] 231 FCR 128
Secondary Materials
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
Statement of Reasons
INTRODUCTION
The Applicant seeks review of a decision of a delegate of the Respondent made 13 June 2024 to cancel the approval of his application for Australian citizenship, pursuant to s 25(2)(b)(iii) of the Australian Citizenship Act 2007 (Cth) (the Act).
The Tribunal is to determine de novo, as at the date of the hearing, whether the Applicant is not of good character pursuant to s 25(2)(b)(iii) of the Act, as set out below. If the Tribunal so determines, then the Tribunal is to consider whether, under s 25(1) of the Act, it should exercise the discretion to cancel the approval of the application for Australian citizenship.
The Tribunal has considered the documentary evidence tendered, being the Applicant’s Statement of Facts, Issues and Contentions with attachments tendered as Exhibit A1, various documents lodged by the Applicant on 16 September 2024 tendered as Exhibit A2, the T-Documents tendered as Exhibit R1 and the bundle of the Respondent’s Supplementary Documents tendered as Exhibit R2, together with the testimony of the Applicant, Mr Abhishek Soni, Mr Ravi Kant Sharma and Mr Jyanshu Gour. The Tribunal has also considered the oral and written submissions of the parties.
RELEVANT LEGISLATION
Section 25 of the Act provides that:
(1)The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a)the person has not become an Australian citizen under section 28; and
(b)either of the following 2 situations apply.
Eligibility criteria not met
(2)The first situation applies if:
(a)the person is covered by subsection 21(2), (3) or (4); and
(b)the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i)not a permanent resident; or
(ii)not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii)not of good character.
…
Effect of cancellation
(5)If the Minister cancels an approval given to a person, the approval is taken never to have been given.
Note:A person cannot become an Australian citizen under this Subdivision unless the Minister approves the person becoming an Australian citizen. This subsection has the effect that the person will need to make another application if the person wants to become an Australian citizen.
RELEVANT POLICY
Good character is not defined in the Act. As the Full Court stated in Grass v Minister for Immigration and Border Protection [2015] 231 FCR 128 at [60], “Parliament clearly intended the term to be used in a broad way and refrained from taking the approach adopted in the Migration Act or giving specific content to a character criterion”. The Tribunal is to evaluatively and wholistically assess whether or not the applicant is of good character: BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39. Whilst not bound by it (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 69–70) the Tribunal is to have regard to the policy set out in the Citizenship Procedural Instructions (CPI), relevantly CPI 15 – Assessing Good Character under the Citizenship Act. The CPI provides some guidance on the meaning of ‘good character’ in the context of decision making under the Act. Chapter 15 states:
Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen.
This instruction provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers must:
·consider any character issues that arise on the facts of a case;
·consider all relevant information;
·guard against bias;
·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;
·be mindful that a person who may not have been of good character can become a person of good character;
·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.
In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required.
The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case.
CONSIDERATION
The Tribunal has considered a number of incidents involving the Applicant in the context of the body evidence before it, the first of which occurred on 2 May 2017. Whilst no conviction was recorded upon sentencing, the Applicant pled guilty to the offending on 16 February 2018, hence the elements of the offence were made out and accepted by the Applicant before that Court. The Tribunal may therefore consider the conduct associated with this incident in assessing good character under the Act: Joud and Minister for Immigration and Multicultural Affairs [2025] ARTA 64. During the hearing the Applicant not only confirmed that he had pled guilty but also, on the evidence, the Tribunal is satisfied that he is very remorseful for the incident. It involved an act of domestic violence against his then wife (who he divorced on 29 November 2024 after around 14 months of living separately, and has since re-united with since late December 2024).
Although all acts of domestic violence are serious, this one involving the Applicant whilst intoxicated throwing a thong which struck his then wife’s arm when she was holding their very young child during an argument about money, was treated by the Court as being at the lower end of the scale. The Court imposed no fine, recorded no conviction and placed the Applicant on a 12 month good behaviour bond which he complied with. Further, the Court required the Applicant to complete an accredited Men’s Behaviour Change Program, which involved a significant commitment, by number of contact hours, which the Applicant duly completed by 30 January 2019.
In association with the 2 May 2017 incident the Court issued an intervention order (IVO) against the Applicant on 4 May 2017, to expire on 3 May 2018, with the consent of the Applicant, without admissions. The Tribunal is satisfied that in consenting to this IVO without admissions such does not detract from the fact that the Applicant accepts that he did carry out the 2 May 2017 incident and that he is remorseful for it. Importantly, the Applicant did not breach this IVO or the subsequent one issued 22 September 2023. The Tribunal accepts that the Applicant consented to the IVOs without admissions in circumstances where he was very distressed and sad as a consequence of relationship difficulties he and his then wife were having at the relevant times.
The 4 May 2017 interim IVO was varied on 26 October 2017, as a result of some allegations made against the Applicant (S2, 28). However, such allegations were not pursued, and the Applicant directly denied them during the hearing. Also, the variation to the interim IVO was revoked at the request of the Applicant’s then wife a couple of months later on 1 December 2017. In such circumstances the Tribunal does not place any significant weight on untested allegations, as with the allegations regarding a separation related incident on 2 April 2023 (S2, 14–5).
Allegations against the Applicant were also made regarding an incident on 7 February 2023, and an associated IVO issued on 22 September 2023, to expire on 22 September 2024. Again, the Applicant consented to the interim IVO on the basis on no admissions. The Applicant was cross examined regarding this incident and questioned by the Tribunal. The Applicant denied the allegations against him and such evidence is consistent with the fact that charges arising from that incident were subsequently withdrawn/struck out and the content of the statutory declaration lodged by the then wife, now current partner of the Applicant, Ms Sonam Verma, dated 17 March 2025. Although this statutory declaration was only received by the Tribunal at the start of the hearing, after the Tribunal provided a brief adjournment, the Applicant’s representative consented to it being relied upon and indicated that Ms Verma would not be required for cross examination.
The Tribunal accepts the content of Ms Verma’s declaration which states, inter alia, that the Applicant:
… is a loving father to our three daughters. He has always been committed to the family. Throughout our time together, I have witnessed [the Applicant’s] strong moral character, sense of responsibility and willing (sic) to help others. I truly believe that he is a good partner, father, son, brother, and friend who is always there for others when needed. I respectfully ask that you take this into consideration when reviewing his case for Australian citizenship.
This evidence is of significance as Ms Verma is the sole individual associated with the incidents discussed above. It supports the conclusions the Tribunal has reached about their significance apropos of assessing whether the Applicant is not of good character.
The one incident established on the evidence as having occurred and for which the Applicant takes full responsibility and is remorseful of occurred in May 2017. In light of the evidence before the Tribunal including the consistent evidence given by the character witnesses, importantly as to the fact that the Applicant is not an angry person, is not a heavy drinker and was visibly sad at the various relevant times when tensions occurred within his now resumed relationship with Ms Verma, the Tribunal does not elevate the allegations of the other incidents, as they are simply allegations, all of which have been denied by the Applicant during his testimony. The Tribunal accepts the Applicant’s testimony.
The Respondent in closing submissions accepted that the Applicant had not informed the Respondent’s department of the September 2023 IVO through inadvertence, as established by his testimony. The Tribunal therefore does not consider this incident to detract from the Applicant’s character in its assessment of it.
The Tribunal has also noted, as submitted by the Respondent, that the “Applicant has provided evidence that he has made significant contributions to his local community, including through his engagement with Are-Able (a disability employment service), his sponsorship of a local club, his volunteering efforts, and his employment and payment of taxes”. Further, the Applicant has now commenced his own business and the Tribunal found the testimony of each of the character witnesses to be consistent and compelling with respect to the Applicant’s character. However, the Tribunal only places limited weight on such evidence, especially that which goes more towards the Applicant’s good standing within the community.
On balance, in light of the matters discussed above, the Tribunal considers the 4 May 2017 incident to be essentially a “one off” and notes that a significant amount of time has passed since that incident. It represents the one real blemish upon the Applicant’s character and the Tribunal notes that CPI 15 reminds the decision maker to “be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’”. After looking wholistically at all the evidence before the Tribunal, and evaluating it, the Tribunal is not satisfied, pursuant to s 25(2)(b)(iii) of the Act, that the Applicant is not of good character. Further, in the circumstances, the Tribunal is not inclined in its discretion to cancel the approval of the Applicant’s application for Australian citizenship.
DECISION
The decision under review dated 13 June 2024 is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the direction that the Applicant is of good character for the purposes of s 25(2)(b)(iii) of the Act.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC
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Associate
Dated: 10 April 2025
Date(s) of hearing: 18 & 19 March 2025 Applicant: In person Solicitors for the Respondent: Ms Miriam Williams, MinterEllison
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