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

[2024] AATA 1388

Sharma and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 1388 (5 June 2024)

Division:                  GENERAL DIVISION

File Number:          2023/3284

Re:Seron Sharma

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:5 June 2024

Place:Sydney

The reviewable decision dated 20 October 2022 is affirmed.

................................[sgd]........................................

Mrs J C Kelly, Senior Member

CATCHWORDS

CITIZENSHIP - application for citizenship by conferral – citizenship application refused – whether the applicant is a person of good character – domestic violence – seriousness of offence – whether sufficient time has elapsed since Applicant’s offending – reviewable decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

SECONDARY MATERIALS

CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

5 June 2024

Introduction

1. On 20 October 2022, a decision-maker refused Mr Sharma’s application for Australian citizenship by conferral because that person was not satisfied that Mr Sharma was a person of good character at the time of the decision, as required by section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).

2. On reviewing that decision, I have to decide whether I am satisfied that Mr Sharma is a person of good character at the time I make the decision.

3. The principal reason the decision-maker was not satisfied that Mr Sharma is a person of good character was that on 9 October 2020, Mr Sharma was found guilty and convicted of the offence Common assault (DV)-T2 committed against his wife on 3 October 2020.  He was sentenced to an 18 month Community Correction Order commencing 9 October 2020 and concluding on 8 April 2022.

4. At the hearing, the Respondent also relied upon a number of traffic offences and a move on order in material produced under summons by police.

   The evidence

5. Mr Sharma arrived in Australia on 29 May 2016 on a Temporary spouse (Subclass 309) visa. He was granted a Permanent Spouse (Subclass 100) visa on 15 April 2019. He applied for Australian citizenship by conferral on 4 October 2021.

6. The Police Fact Sheet set out the following details about the domestic violence committed on 3 October 2020 against Mr Sharma’s wife.  

7. Mr Sharma had been in an intimate relationship with his wife for the previous eight years.  They had one son who was aged two at the time of the offence. Mr Sharma’s wife had a son from a previous relationship who was aged 9 at the time of the offence.  Both children lived with Mr Sharma and his wife and were present in the lounge room of the house and witnessed the assault.  

8. Mr Sharma had spent the majority of the day consuming alcohol with his wife’s brother. He returned home around 8pm after consuming half a case of beer. He and his partner/wife began to argue. His wife was standing in front of the lounge and Mr Sharma approached her and, in his rage, used his right hand to slap her across the left side of her face which caused her immediate pain, and redness and swelling to her left eye. Mr Sharma then used both of his hands to push her back into the lounge and he landed on top of her with all of his body weight. He then grabbed his wife by her wrists and began hitting her across the face with her own hands. During this scuffle, his wife used her legs to kick Mr Sharma to force him off her.

9. Mr Sharma’s wife contacted emergency services for assistance. Both children were heard during the phone call to be distressed and crying.

10. A short time later the police arrived and separated both parties. Both children were visibly upset by the incident. Police cautioned Mr Sharma and spoke to him about the incident. He said ‘yeah things got heated and she pushed me too far so I slapped her across the face’. The conversation was captured on police body worn video.

11. Mr Sharma was taken to a police station. He declined the opportunity to participate in an electronically recorded interview.  

12. Other police records about the incident record the following.

13. On 4 October 2020, Mr Sharma was charged and released on police bail that included conditions that he not assault or threaten, stalk, harass or intimidate, intentionally or recklessly destroy or damage any property that belongs to, or approach or be in the company of his wife for 12 hours after consuming alcohol. He signed the acknowledgment of those conditions at 12:35 on 4 October 2020.

14. A police record dated 3 October 2020 22:23 stated that Mr Sharma’s wife suffered ‘Nil’ injuries and received no medical treatment following the assault. I do not accept that she suffered no injury and prefer the accounts in the record dated 3 October 2020 22:58 and the Police Facts that she suffered immediate pain, and redness and swelling to her left eye.

15. A police record dated 3 October 2020 23:03 stated that Mr Sharma’s wife ‘has fears when the defendant consumes alcohol which he does on regular occasions. Police hold fears that the domestic incident has now progressed from verbal to physical assault and that Mr Sharma has no regard for his wife or the children being witness to the incident’.

16. At the hearing, Mr Sharma disputed some of the facts set out in the police fact sheet.  However, he acknowledged that he had not read that document until after his citizenship application had been refused. Therefore, I accept that the magistrate sentenced Mr Sharma based on the police fact sheet.    

17. I infer that Mr Sharma pleaded guilty to the offence at the earliest opportunity, that is, when the matter came before the court on 9 October 2020.

18. I infer from the police records that an Interim Apprehended Domestic Violence Order (ADVO) was issued on 4 October 2020 at 00:17 and a final ADVO was issued by the court on 9 October 2020. Police spoke to Mr Sharma’s wife in person on 9 December 2020 and 14 May 2022. On both occasions they reported that there was no current breach of the ADVO detected.

19. The Respondent relied on the following further police records in support of the argument  that Mr Sharma is not a person of good character. 

20. On 20 December 2021 at 08:29, a traffic infringement notice was issued to Mr Sharma for ‘Class A motor vehicle exceed speed limit – over 10 km/h’. When stopped, Mr Sharma said ‘I get a 15 minute break. I was trying to get back in time. I work up there’. 

21. On 25 June 2018 at 14:10 a traffic infringement notice was issued to Mr Sharma for the offence of ‘Class A motor vehicle exceed speed limit – over 30 km/h’.

22. At the hearing Mr Sharma talked about this offence in detail. I accept his evidence that he took this matter to court in Canberra which required him to attend twice, taking a day off work on each occasion, and the matter was dismissed because the police officer did not attend. 

23. On 23 June 2018 at 12:23, Mr Sharma was issued with a traffic infringement notice for ‘Disobey no right turn sign-motor vehicle’. This offence was committed at Jindabyne. The offence recorded on 25 June 2018 occurred when he was returning from Jindabyne to Sydney.

24. On 21 May 2017 01:00, Mr Sharma complied with a direction to MOVE ON when a police officer observed him fishing on a wharf.  The reason was a passenger transport regulation for obstructing the wharf.  He provided incorrect details because he did not want to be issued with a fine and was generally uncooperative. He was searched with nothing found.

25. Mr Sharma provided two statutory declarations from a co-worker dated 13 October 2022   and 16 November 2023 which were in similar terms. As of November 2023, the co-worker had known Mr Sharma for six years and had visited his home on more than one occasion. The co-worker wrote of Mr Sharma’s leadership capabilities, forbearance and geniality in the workplace and that he was well-respected and appreciated there. Mr Sharma exercised self-control in a challenging environment and sacrificed his time to share his experience to assist subordinates. The co-worker described Mr Sharma’s warm and devoted relationship with his family members and how he worked extremely hard to provide a better future for them. The co-worker was aware of an incident where Mr Sharma had ‘raised his hand’ to his wife and had expressed his shame and remorse for his actions. The co-worker believes that Mr Sharma is a young man of upright moral character who is extremely unlikely to be party to any offence within the general community.

26. Contrary to Mr Sharma’s belief that the co-worker had mentioned that Mr Sharma had stopped drinking alcohol, that was not the case.

27. Another co-worker also provided a statutory declaration dated 13 October 2022 which expressed a high regard for Mr Sharma and stated that the co-worker was aware of Mr Sharma’s ‘previous domestic violence’. The co-worker confirmed that Mr Sharma ‘has never indicated negative or violent traits’.

28. Mr Sharma claims that after the domestic violence offence, he stopped drinking alcohol, began attending temple on Fridays with his family, and studied Australian laws on domestic violence. Anger management is one of the biggest changes he has made. He acknowledged that Australia regards domestic violence as a serious offence. He claims that he and his wife have little arguments which are resolved. They have a calm relationship that is working. He said that on 3 October 2020 he was really intoxicated and his wife pushed him to the limit. He did apologise to her.

    Consideration

29. The term ‘good character’ is not defined in the Act, however the Australian Citizenship Policy Statement and the Citizenship Procedural Instructions (CPIs) provide extensive guidance.  There is no reason in this case why I should not apply the government policy. Relevantly, CPI 15 provides as follows.

30. ‘Good character’ refers to the enduring moral qualities of a person, that is, characteristics which have endured over a long period of time, distinguishing right from wrong, behaving in an ethical manner and conforming to the rules of Australian society. A person of good character would abide by Australian law and not be violent or cause harm to others.

31. Where a person has a criminal conviction, a decision-maker must consider whether the offence was ‘serious’. Was the offence a ‘one off’ or part of a pattern of demonstrated criminal behaviour? The domestic violence offence was a one off, although before that offence, Mr Sharma’s wife was fearful when he consumed alcohol, which he did on regular occasions. It was a serious offence, as reflected in the police facts and the sentence imposed. Mr Sharma was intoxicated, lost his temper, and injured his wife. She was so concerned, that she contacted police for the first time. The offence was committed in the presence of the two young children which caused them considerable distress over a period of time from the emergency call being made until and including when the police arrived. Mr Sharma blamed his wife for pushing him too far. He made a similar comment at the hearing.

32. The Australian community has zero tolerance for domestic violence perpetrated against any person.

33. There is no reliable corroborative evidence that Mr Sharma is rehabilitated as he claims.  There was no evidence from his wife. He was unrepresented. He said that he was told to put on evidence from people who knew him but not told to put on evidence from his wife.  The evidence from his co-workers does not address his rehabilitation. Both those witnesses gave no detailed account of what happened during the domestic violence incident. Their opinions of Mr Sharma may not be so favourable if they had read the Police Fact sheet.

34. It is only two years since the CCO and ADVO ended. Mr Sharma has not committed another offence in that period, which is in his favour. However, since the refusal of his application on 20 October 2022, he has been aware of how seriously domestic violence offences are regarded in Australia and the negative impact that any further offending would have on his prospects of success in the present proceedings. That may have influenced his behaviour.

    Conclusion

35. I am not positively satisfied that Mr Sharma is a person of good character at the time of my decision because the domestic violence offence was serious, there is no reliable corroborative evidence of his claimed rehabilitation, including stopping drinking alcohol, it is only two years since the CCO and ADVO ended, which is not a sufficiently long period to demonstrate that he is a person of good character, particularly taking into account that since the refusal of his application on 20 October 2022 he has been aware that further offending would adversely affect his prospect of succeeding in the Tribunal, which was an incentive not to reoffend.  

36. Those findings are sufficient to determine the matter. However, for completeness I address the other matters relied upon by the Respondent. The most recent of the two traffic infringements was on 20 December 2021. As Mr Sharma acknowledged, traffic infringements can endanger other road users. The move on direction was in 2017. Those matters do not demonstrate an ongoing disregard for Australian law which would affect my assessment of whether the Applicant is a person of good character.

    DECISION

37. The reviewable decision dated 20 October 2022 is affirmed.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

....................................[sgd]....................................

Associate

Dated: 5 June 2024

Date of hearing:	31 May 2024
Applicant:	In person
Solicitors for the Respondent:	Ms C Warren, Sparke Helmore