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

Case [2020] AATA 1928

Shastri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1928 (26 June 2020)

Division:GENERAL DIVISION

File Number(s):      2019/5650

Re:Prashant Shastri

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:26 June 2020

Place:Sydney

The decision under review is set aside and the matter is remitted to the Respondent with the direction that the Applicant satisfies the requirement in section 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

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

Chris Puplick AM, Senior Member

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship application – whether Applicant has satisfied section 21(2)(h) – good character requirement – Citizenship Policy – meaning of ‘good character’ – enduring moral qualities – common assault – domestic violence – the weight to be given to references – decision under review set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 11A, 12, 13, 14, 15, 15A, 16, 17, 18, 19, 19A, 19G, 20, 21, 22, 22A, 22B, 22C, 23, 23A, 24, 25, 26, 27, 28

Crimes (Sentencing Procedure) Act 1999 (NSW) s 10

CASES

AFY18 v Minister for Home Affairs [2018] FCA 1566

Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601

Al-Boushama and Minister for Immigration and Border Protection [2015] AATA 5

Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

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

Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132

Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686

Prasad and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1506

Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326

Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608

Umer and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1630

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Chris Puplick AM, Senior Member

26 June 2020

THE APPLICATION

  1. Mr Prashant Shastri (Applicant) has applied to this Tribunal to review a decision made by a delegate of the Minister (Respondent) refusing his application for citizenship by conferral.

  2. The Applicant is an Indian national who first arrived in Australia on 26 October 2013 and was granted a subclass BB-155 Resident Return visa on 17 August 2018. Prior to that grant the Applicant had lodged an application for citizenship by conferral on 30 June 2018.

  3. An initial assessment of his application led the Respondent to consider details of a charge of common assault (domestic violence) which had been pressed against the Applicant on 22 January 2016. He was given the opportunity to make submissions to the Respondent on this matter and, after consideration of those representations, the Respondent decided, on…

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AGLC
Shastri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1928
Case
[2020] AATA 1928
Decision Date

CaseChat Overview and Summary

This matter concerned an application for Australian citizenship by conferral made by Mr Prashant Shastri. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused Mr Shastri’s application, and he sought a review of that decision before the Administrative Appeals Tribunal. The central dispute revolved around whether Mr Shastri satisfied the "good character" requirement under section 21(2)(h) of the *Australian Citizenship Act 2007* (Cth), following a finding of guilt for common assault (domestic violence) in the Parramatta Local Court.

The Tribunal was required to determine the meaning of "good character" in the context of citizenship by conferral and, specifically, how an applicant's past conduct, including a conviction for common assault dismissed without conviction under a good behaviour bond, should be weighed against other evidence. The Tribunal also had to consider the weight to be given to references and evidence of rehabilitation, such as psychological counselling, in assessing an applicant's enduring moral qualities.

The Tribunal reasoned that while the principle of non-tolerance for domestic violence is well-established, each case must be evaluated on its own evidence. It accepted Mr Shastri's sworn evidence that the assault was unintentional and accidental, occurring during an argument. The Tribunal also noted that Mr Shastri had sought professional assistance for anger and stress management following the incident and had received a report indicating considerable improvement. Despite the absence of evidence from the victim, the Tribunal found no basis to reject Mr Shastri's account of the incident or his subsequent efforts at rehabilitation.

Consequently, the Tribunal set aside the Minister's decision to refuse the citizenship application and remitted the matter to the Minister for reconsideration. The Tribunal was satisfied that Mr Shastri had met the good character requirement for citizenship by conferral.

Orders

Orders of the court

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Background

Background to the litigation

The evidence before the Tribunal is that, on 22 January 2016, the Applicant appeared before the Parramatta Local Court where he was found guilty of the offence of “Common Assault (Domestic Violence)”.[11] He pleaded guilty.[12] The charges against the Applicant were dismissed without conviction under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), as a first offender, on condition of his entering a good behaviour bond for a period of 18 months.[13] In addition, a Provisional Apprehended Violence Order (AVO) was issued by the NSW Police whilst the Applicant was in police custody[14] and a Final AVO was made by the Local Court on 22 January 2016 for a period of 12 months in relation to the victim of the assault.[15][11] National Police Certificate dated 27 August 2019.[12] T documents at 85.[13] Ibid at 83-84.[14] NSW Police Facts Sheet dated 12 October 2015 and printed on 22 January 2016 (Police Facts Sheet) at 3.[15] T documents at 81-82. An associated charge of assault occasioning actual bodily harm was withdrawn.[16][16] Court Attendance Notice (defendant copy) dated 22 January 2016. In the absence of any sentencing remarks from the Bench, the Tribunal turns to the Facts Sheet presented to the Court by the NSW Police. That Police Facts Sheet records details of an incident which occurred on 12 October 2015 when the Police were called to the grounds of Westmead Hospital by a witness who had observed “a verbal argument between the Accused, Prashant SHASTRI and the Victim, Alpa PATEL”.[17][17] Police Facts Sheet at 2. The Facts Sheet continues:Police attended the location and spoke with the Witness. The Witness advised that about 9.45am, he was patrolling the car park of Westmead Hospital and observed three people to be arguing. [Deleted material[18]]. When the Witness enquired as to what had occurred, the husband of the Victim stated that the Victim and the Accused had been involved in a disagreement but everything was fine.The Witness has taken details and tried to make further enquiries with the Victim [deleted material]. The Victim refused to give the Witness any details.The Accused has approached Security and advised him that he had had an argument with the Victim and during the argument, the Accused has hit the Victim.Whilst talking to the Witness and obtaining his details and details of the event, Police were advised that the Accused had returned. The Accused wished to apologise to the Witness for what had happened.Police approached the Accused and he advised Police that the Victim was with him. The Accused exited the Security office and pointed out the Victim to Police.Police have escorted the Accused and the Victim to a private room and separated them. [Deleted material].[Deleted material] The Victim declined to provide Police with any information other than the Accused hit her whilst they were discussing a personal matter.Police, away from the Victim, cautioned and questioned the Accused about what had occurred earlier in the day. The Accused stated that he and the Victim were arguing and during the argument, the Accused got angry and hit the Victim across her face. The Accused said “I got angry and I didn’t intend on hitting her. I swung my arm whilst asking ‘why are you doing this?’ and my hand hit her face as she moved her head.”The Accused stated he and the Victim were arguing as the Accused believes the Victim is cheating on him with her ex boyfriend.[18] The Police Facts Sheet contains several deletions of text. The Tribunal put it to the Respondent that the most likely explanation for this was that these comments were included when a charge of assault occasioning actual bodily harm was being contemplated, but when this charge was withdrawn the deletions were made and the amended statement tendered to the Court. The Respondent accepted that this proposition was probably correct.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

An initial assessment of his application led the Respondent to consider details of a charge of common assault (domestic violence) which had been pressed against the Applicant on 22 January 2016. He was given the opportunity to make submissions to the Respondent on this matter and, after consideration of those representations, the Respondent decided, on 12 August 2019, to refuse the citizenship application (citizenship refusal decision). On 9 September 2019 the Applicant lodged an application with this Tribunal for a review of that citizenship refusal decision and his matter was heard on 20 May 2020. At that time, the Tribunal was operating under procedures established in response to the COVID-19 pandemic designed to ensure the safety of all parties. As a result, the hearing was conducted by use of the Microsoft Teams audio-visual platform. The Tribunal is satisfied that procedural fairness was accorded to all parties through use of this platform.BECOMING AN AUSTRALIAN CITIZEN The Australian Citizenship Act 2007 (Cth) (Act) provides that there are a number of ways in which a person may become an Australian citizen. Part 2, Division 1 (sections 11A to 15) deals with the matter of automatic acquisition of citizenship: by birth, by adoption, by being a specific category of abandoned child or where a territory is incorporated into and becomes part of Australia. Part 2, Division 2, Subdivision A (sections 15A to 19A) deals with citizenship by descent and sets out qualifications for the grant of such citizenship dealing, inter alia, with matters of identity, parentage, residency, place of birth, etc. Citizenship by descent requires an applicant to establish certain facts about their lineal descent, especially about their qualifying parentage. Even when all such matters of identity and qualifying parentage are met, such an application may still be refused (section 17). Part 2, Division 2, Subdivision B (sections 19G to 28) deals with citizenship by conferral and sets out a series of requirements which must be met, to the satisfaction of the Minister, before such citizenship can be granted. In this case the Applicant has applied for citizenship by conferral.CITIZENSHIP BY CONFERRAL In order to qualify for citizenship by conferral an applicant must satisfy a number of requirements which are set out in section 21(2) of the Act. The qualifying conditions are enumerated from paragraphs (a) to (h). Each of them must be satisfied. In the citizenship refusal decision, the delegate assessed that paragraphs (a) to (f) were satisfied by the Applicant. The delegate did not, at that stage, assess section 21(2)(g) which requires consideration of whether or not the Applicant is likely to reside, or to continue to reside, in Australia and maintain a close and continuing relationship with Australia.[1] However, the Tribunal notes that the Applicant has stated that he intends to remain resident in Australia. His wife is here, as is his adult Australian citizen daughter.[2][1] Section 37 documents (T documents) at 8.[2] In oral evidence Mr Shastri told the Tribunal that the original citizenship application covered himself, his wife and his daughter and that his daughter was granted citizenship but his wife was not because she failed to satisfy the requirements of the Citizenship Test.

Ratio Decidendi

Legal Principle Established

While the principle of the non-tolerance of any form of domestic violence is well established, the qualification stated in Ahori and referenced in Umer that all cases require the Tribunal to consider and evaluate all the evidence presented, cannot be ignored.Consideration of the incident In oral evidence the Applicant maintained his description of the incident, namely that an argument about a personal matter was underway when the Applicant started swinging his arm about and in the process this caused Ms Patel to be hit in the face, and that the event was non-intentional and hence accidental. The Tribunal notes certain aspects of this narrative:(a)the Witness is reported as having observed three people arguing. There is no suggestion that he witnessed any physical confrontation.(b)the Victim’s husband was present during the argument and he does not appear to have made any statement to the Police about the assault on his wife or to have taken an action in relation to that matter.(c)Ms Patel declined to give any further details to the Police about the incident.(d)the Applicant apparently “returned” to the scene ostensibly to apologise to the Witness and he made no effort to avoid the Police, indeed he pointed out Ms Patel to them.(e)Ms Patel was escorted with the Applicant to the meeting with the Police. In oral testimony the Applicant advised the Tribunal that he and Ms Patel continued to be friends and that while they had been in a sexual relationship, this was no longer the case. It is unfortunate that the Tribunal did not have the benefit of any evidence, by way of statement or appearance, from Ms Patel. The Applicant was asked about this but suggested that Ms Patel’s husband was not in favour of her having any further involvement with the authorities – a position which is not difficult to understand. In the absence of any contradicting evidence, and given that the Applicant was giving sworn evidence, the Tribunal finds no basis other than to accept the evidence that the incident which occurred did so in the manner the Applicant describes.Immediate aftermath The Applicant informed the Tribunal that after he had been charged, he accepted that he needed some form of professional assistance focused upon the management of anger and stress. In his statement to the Department he characterised his approach as needing “to find out how that happened and how I can prevent this in [the] future”.[26] He sought help from Ms Amanda Nassif, a registered psychologist. In a report from her dated 19 November 2019 she writes that by the use of cognitive behavioural therapy, the Applicant had demonstrated “[c]onsiderable signs of improvement and change in character”.[27][26] T documents at 85.[27] Letter from Amanda Nassif dated 19 November 2019. The Respondent, rightly, made the point that it would be difficult for the psychologist to comment on any “change” in behaviour if she had not had the opportunity to observe the Applicant both before and after treatment or counselling.