Sharma and Minister for Immigration and Multicultural Affairs (Citizenship) - [2025] ARTA 354

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).

............................[sgd]............................................
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 64
Grass 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Sharma and Minister for Immigration and Multicultural Affairs (Citizenship) [2025] ARTA 354
Case: [2025] ARTA 354
Decision Date: 10 April 2025

CaseChat Overview and Summary

The Sharma and Minister for Immigration and Multicultural Affairs (Citizenship) case involved an application for Australian citizenship by conferral, which was subject to cancellation on character grounds. The dispute centred on whether the Applicant was of good character, as required by section 25(2)(b)(iii) of the relevant Act. The case was heard and determined by the Administrative Review Tribunal.

The primary legal issues revolved around the interpretation and application of the concept of 'good character' in the context of citizenship applications. Specifically, the Tribunal had to determine whether non-convictions could be considered in assessing the Applicant's character and whether the decision to cancel the Applicant's citizenship approval was lawful and reasonable.

The Tribunal's reasoning was that while the Applicant had a blemish on his character due to an incident of domestic violence in May 2017, it was a one-off incident and occurred a significant time ago. The Tribunal emphasised that good character does not equate to perfect character and adopted a holistic approach in evaluating the Applicant's character based on all the evidence. The Tribunal found that the Applicant was of good character and exercised its discretion not to cancel the approval of the citizenship application. Consequently, the Tribunal set aside the decision under review and remitted the matter to the Respondent for reconsideration in line with the Tribunal's findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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).