Shrestha and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2023] AATA 1847

Shrestha and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 1847 (26 May 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9254
Re:Rojan Shrestha
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal: Mr S Evans, Member
Date of decision: 26 May 2023
Date of written reasons: 28 June 2023
Place:Sydney

The reviewable decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 14 October 2022 to refuse the Applicant’s application for citizenship is set aside and remitted for reconsideration with a finding that the Applicant is of good character within the meaning of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
................[Sgd]........................................................
Mr S Evans, 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 — Alleged domestic violence — No pattern of behaviour established — Decision under review set aside and remitted.
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Prasad and Minister for Immigration and Border Protection [2017] AATA 1506
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Secondary Materials
Australian Citizenship Policy Statement
CPI 15 - Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
28 June 2023
INTRODUCTION

Rojan Shrestha (the Applicant) is a 38 year-old citizen of Nepal who arrived in Australia on 30 August 2016 as holder of a temporary spouse (Subclass 309) visa.[1] He was granted a permanent spouse (Subclass 100) visa on 27 July 2018. On 11 January 2022 the Applicant lodged an application for Australian Citizenship by conferral.[2] On 14 October 2022 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) refused his application having found that he was not of ‘good character’, which is one of the requirements for Australian citizenship.[3] The Applicant contends he meets the character requirements for conferral of Australian citizenship and has sought review of the delegate’s decision at the Administrative Appeals Tribunal (the Tribunal).[4]
[1] T3/10
[2] T4/17
[3] T3/10-16
[4] T2/4
The matter was heard on 26 May 2022. Having heard the evidence I made a determination on Mr Shrestha’s application and gave my reasons orally. At the request of the Respondent, these are the written reasons for that decision.
Issue to be determined
The issue to be determined by the Tribunal is whether, at the time of the Tribunal’s decision, the Applicant is of ‘good character’ such that he meets the requirements of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).
Legislative and policy framework
Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.
Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen.
Determining questions of character
The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J said:
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.[5]
[5] (1996) 139 ALR 84, 94
The Department’s official guides to decision makers include both the Australian Citizenship Policy Statement, which details the overarching legislative requirements for becoming an Australian citizen, and the Revised Citizenship Procedural Instructions (the Instructions).
The relevant policy to this application is found in Citizen Procedural Instruction 15 Assessing Good Character under the Citizenship Act (CPI 15). CPI 15 provides guidance for decision makers, including the Tribunal, in determining whether an applicant is of good character.
Informed by the discussion in Irving, subsection 4.3 of the Instruction state that:
A decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout the time the applicant held a visa, and during the time their citizenship application was lodged and processed.[6]
[6] T17/156
The Instructions specifically call for decision makers to ‘look holistically at [an] applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities.’[7] A person’s enduring moral qualities encompass:
- characteristics which have endured over a long period of time;
- distinguishing right from wrong; and
- behaving in an ethical manner, conforming to the rules and values of Australian society.
It is well established that the Tribunal will apply government policy unless there are cogent reasons not to do so.[8] The Tribunal is guided by the considerations outlined above when determining whether the Applicant meets the good character requirement for Australian citizenship.
[8] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ
EVIDENCE AND FACTS
The Applicant and his wife, Putanti Shrestha (Ms Shrestha) met in Nepal in 2014. Ms Shrestha had been residing in Australia since 2008, having arrived as a student. The Applicant lives with his Australian citizen wife and son.
When completing his citizenship application the Applicant answered ‘yes’ to the question where asked whether he had any prior convictions in Australian and overseas and provided details of his conviction and sentence for the assault offence.[9]
[9] T4/32
The Applicant’s offence
On 22 October 2020, the Applicant was convicted of one count of assault occasioning actual bodily harm (DV) – T2 at Burwood Local Court (the assault offence) and was sentenced to an 18-month Community Corrections Order (CCO) as well as fined $800.[10] An Apprehended Violence Order was made against the Applicant on 15 September 2020 as part of his bail conditions.[11]
[10] T11/86
[11] ST/9
The details of the offence are set out in a Police Facts Sheet.[12] In summary, police attended the Applicant’s apartment at around 1:00am on 15 September 2020 after a neighbour reported hearing ‘yelling and screaming.’[13] Police were greeted by Ms Shrestha who was carrying the couple’s child. She was ‘visibly upset’ and told police that the Applicant ‘had been dancing with other females’ at a party, which caused her to ‘become jealous.’[14] A verbal argument ensued during which Ms Shrestha slapped the Applicant in the face. Mr Shrestha retaliated by slapping his wife across the face, which caused a cut to her right eyebrow which was bleeding heavily.[15]
[12] ST/16-19
[13] ST/17
[14] ST/17
[15] ST/18
The Applicant told officers that he had ‘slapped his wife ‘hard’ after she slapped him twice. Police notes state that the Applicant had ‘a bruise on his right temple region, scratches on his chin, a scratch on his chest and a scratch on his left side of his face.’[16]
[16] ST/18
Evidence
On 15 September 2022 the Respondent invited the Applicant to provide comment on his assault offence.[17] The Applicant responded on 7 October 2022 providing statutory declarations made from he and his wife and a copy of the court order notice.[18]
[17] T11/79-82
[18] T12/88-95
In his statutory declaration of 7 October 2022 the Applicant confirmed his offence and sentence as set out in the court order notice. He confirmed his wife was the ‘victim in that incident’ and that he has asked her to ‘provide her version in order to reflect the whole incident accurately.’ The Applicant also writes that he regrets his ‘mistake’ and has learnt from his actions.[19]
[19] T12/89
In her statement Ms Shrestha writes in part:
In 2020, as we were quite new to this country, we did not know many people
other than a few family members in Sydney.
On 14 September 2020, we were invited to attend my sister's birthday party dinner and while we were there, we were joined with a number of other guests to celebrate my sister's birthday.
Due to the overwhelming atmosphere on that night (and always confined to our small family environment), my husband and I consumed a number of alcoholic drinks beyond our usual limit.
As a result of our alcohol consumption, I saw my husband cheerfully dancing with a few female guests.
I became very jealous of his behaviour but I did not say anything then.
However, when we returned to our Campsie residence in the early morning of 15 September 2020, I became very angry and I confronted my husband about his behaviours.
Our verbal argument became hostile and under the influence of alcohol, I hit my husband's face two times.
To my surprise, my husband retaliated and he slapped me back about three to four time using his left hand.
Normally, my husband is very gentle and he would never hurt anyone, but I think he was also under the influence of alcohol at that time.
…
I do not know what to say and I certainly do not condone what we did in the early morning of 15 September 2020, but I still feel that I am partly responsible for his offence as I initiated the physical assault first on that day.[20]
[20] T12/93-94
The Applicant’s evidence
Applicant told the Tribunal that the common assault is his only conviction. His driving record is without blemish and he was able to access a fifty percent discount when renewing his driver’s licence earlier in the year.
The Applicant works as a telecommunication engineer. His occupation requires regular overseas travel, which he believes will be facilitated if he was to hold an Australian passport. He and Mrs Shrestha are planning on having a second child and buy their first home.
The Applicant participates in a Non-Residents Nepalese group, through which he raises funds and helps newly arrived Nepalese migrants access accommodation and find employment in Sydney.
CONSIDERATION
In determining if the Applicant is of good character, I am to consider the evidence as a whole and the Applicant’s behaviour over time, including prior to making his citizenship application.
I found the Applicant to be a credible witness who answered questions truthfully and to the best of his ability, and I accept his evidence in relation to his offending and his life in Australia.
The Applicant has committed a single offence. The Respondent submits that the offence was serious as it involved an act of domestic violence, which I accept.[21] The Applicant slapped his wife four times across the face whilst their child was present – albeit in another room. Considering the verbal argument lasted 10 minutes and was tumultuous enough for a neighbour to call police, it is inevitable that the experience was distressing for the Applicant’s son.[22]
[21] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [24]
[22] RSFIC, [30]
The Applicant told me the assault was an ‘accident.’ There is no question he is liable for the assault. When asked about why he used the word ‘accident’ to characterise his offending, the Applicant clarified that his offending was caused by his intentional action for which he is responsible, but that he did not expect he would respond the way he did. I accept that his expectation was reasonable given previous disagreements between he and Ms Shrestha had not escalated beyond verbal arguments.
The Applicant demonstrated significant insight into his actions the night of the offending and no longer consumes alcohol, which he considers the most effective measure he can take to prevent reoffending. The Applicant has not undertaken anger management or counselling, but it is apparent he has considered his actions with a view to understanding why he behaved in a manner inconsistent with the expectations he has of himself. As the offending was an isolated incident and the central role played by alcohol, I am satisfied the Applicant has taken appropriate measures to prevent reoffending.
The good character and credibility of the Applicant is supported by his otherwise unblemished record. CPI 15 provides that the length of time since an offence may be a mitigating factor. The Respondent contends that insufficient time has elapsed for the Applicant to have established a pattern of good behaviour.[23] The offending occurred in September 2020 and the Applicant’s obligation to the Court expired on 21 April 2022. There is no hard and fast rule as to how much time needs to pass before an Applicant can be considered to be of good character, but this factor does not favour the Applicant.
[23] RSFIC, [34]
Mrs Shrestha did not appear and provide evidence at the hearing. As the victim of the offence, her appearance before the Tribunal may have been of assistance but I accept she was unavailable as she had recently started a new job. Mrs Shrestha provided a statement to the Court on 22 September 2022 which is consistent with her October 2022 statement to the Respondent. The events as described are also consistent with the Applicant’s evidence to the Tribunal.
Whilst the Applicant was credible, his offending was serious. In Prasad and Minister for Immigration and Border Protection[24] Deputy President Constance stated at [32]:
Domestic violence, in any form and in any circumstances, is fundamentally inconsistent with the standard of behaviour expected by the Australian community.
[24] [2017] AATA 1506
I found the Applicant to have been an honest witness whose remorse was genuine. He presents as a hard working individual who is seeking to better himself and the lives of his wife and child. He claims holding Australian citizenship will help him to achieve this goal. Whilst this has no direct bearing on my decision, it supports a finding that the Applicant is sincere in his commitment to family and contribution to the community through his work.
Having considered the evidence, I find that the correct and preferable decision is to set aside the reviewable decision and remitted to the Respondent with the direction that the Applicant meets the good character requirement under s. 21(2)(h) of the Act. This means that this matter will now go back to the Respondent with the direction that the Applicant is of good character at this time and provided he satisfies the remainder of the eligibility criteria, he will be eligible for citizenship.
DECISION
The Tribunal sets aside the reviewable decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 14 October 2022 to refuse the Applicant’s application for citizenship. The matter is remitted for reconsideration with a finding that the Applicant is of good character within the meaning of paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of

..............................[Sgd]..........................................
Associate
Dated: 28 June 2023

Date of hearing: 26 May 2023

Applicant: In person

Solicitors for the Respondent: Mr H McLaurin, Minter Ellison

Date of hearing:	26 May 2023
Applicant:	In person
Solicitors for the Respondent:	Mr H McLaurin, Minter Ellison