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

Singh and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 4031 (30 November 2023)
Division:GENERAL DIVISION
File Number: 2022/6535
Re:Raminder Jeet Singh
APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Mr S Evans, Member
Date:30 November 2023
Place:Sydney

The decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 18 July 2022 to refuse Mr Singh’s application for citizenship is affirmed.
................[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 — domestic violence — traffic offences — Inconsistent evidence — not positively satisfied — Decision under review affirmed.
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1972) 2 ALD 634
Secondary Materials
Australian Citizenship Policy Statement
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
30 November 2023
INTRODUCTION

The applicant, Raminder Jeet Singh, is a citizen of India[1] who currently holds a permanent Regional Sponsored Migration Scheme (Subclass 187) visa.[2] On 26 August 2021 Mr Singh applied for Australian citizenship by conferral.[3] His application was refused by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs on 18 July 2022.[4] The delegate was not satisfied that Mr Singh was of good character, which is a requirement for eligibility to become an Australian citizen.
[1] T2/29
[2] T13/191
[3] T4/117
[4] T2/25
Mr Singh seeks review of the delegate’s decision at the Tribunal.[5] For the reason which follow, the reviewable decision will be affirmed.
[5] T1/4
ISSUE TO BE DETERMINED
The issue to be determined 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.[6]
[6] (1996) 139 ALR 84, 94
In determining whether an individual is of good character, the Australian Citizenship Policy Statement and the Citizenship Procedural Instructions (CPI) provide guidance for decision makers. The policy relevant to this application is found in CPI 15 - Assessing Good Character under the Citizenship Act (the Instructions).
Informed by the discussion in Irving, subsection 3.3 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.[7]
[7] T3/98
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.’[8] 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.
The Instructions reflect government policy and are not binding on the Tribunal. However, it is well established that the Tribunal will apply government policy unless there are cogent reasons not to do so.[9]
FACTS AND EVIDENCE
[9] 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
Driving offences
On 1 July 2011 Mr Singh appeared in the Downing Centre Local Court where he was convicted of drive high range PCA, no stop at stop sign at red light, Class A m/v exceed speed and drive with middle range PCA. Mr Singh was fined and sentenced to a s9 good behaviour bond and disqualified from driving.
On 29 July 2011 Mr Singh appeared at the Downing Centre Local Court where he was convicted of Class A m/v exceed speed, driving with unrestrained passenger under the age of 16 years and drive when visiting privileges withdrawn and fined for each offence.[10]
[10] T5/153
On 2 July 2013 Mr Singh appeared at Burwood Local Court where he was convicted of driving with middle range PCA. He was fined, sentenced to a 18-month s9 good behaviour bond and a 2 year driving disqualification.[11]
[11] T10/183
On 30 August 2017 Mr Singh appeared in the Downing Street Local Court and was convicted of driving with middle range PCA – second offence and sentenced to a community service order of 200 hours, had his license disqualified and directed to participate in the alcohol interlock program.[12]
[12] T10/183
Common assault
On 8 May 2018 Mr Singh appeared at the Parramatta Local Court where he was convicted of Common Assault – Domestic Violence (the common assault) and sentenced to a s10 good behaviour bond for 12 months, a treatment plan and required to continue to attend counselling and remain gainfully employed. The NSW Police Facts record that there was a heated argument during which Mr Singh threw his wallet at his wife, Ms Sohal, hitting her in the right side of her face and right shoulder. According to the police facts, there was continued yelling after which Mr Singh picked up a table fan. Mr Singh began to approach Ms Sohal, who feared she was going to be assaulted by Mr Singh throwing the fan at her. At this point her children and Mr Singh’s father stood between them and pushed Mr Singh away from her.[13]
[13] SM2/57
Mr Singh’s evidence
Mr Singh gave evidence at the hearing into his application and provided an affidavit dated 8 August 2022. He works as a security officer at a shopping centre. In the affidavit he confirms he resides with his wife, Ms Sohal, and their three children, all of whom are Australian citizens. Not holding Australian citizenship creates difficulties when he and his family are making arrangements to travel overseas.
Regarding his offending, Mr Singh writes he ‘committed a few driving offences’ between 2011 and 2019, and identifies a further speeding offence which was not acknowledged in the reviewable decision. He explained that some of his offending occurred when he was experiencing ‘stressful circumstances, such as marital issues, financial issues while settling into a new country with a young family’, and his parents were experiencing health issues.[14]
[14] T1/12
Regarding the common assault conviction, he writes of being charged for a ‘verbal argument’ he had with Ms Sohal ‘without any physical altercation’. Mr Singh is ashamed of his behaviour which led to the common assault conviction. He did not contest the charge and plead guilty.
At the hearing Mr Singh detailed the events leading to the common assault charge. He and Ms Sohal had been to a party. Ms Singh had been drinking at the party while Ms Sohal had not. On the way home they began to argue. The argument became loud and Ms Sohal was crying. One of their neighbours called police who attended their home. Before he was arrested, Mr Singh claims police asked Ms Sohal if Mr Singh had hurt or threatened her, which she denied. He claims she told police that nothing had happened beyond the couple having an argument.
Mr Singh gave evidence that when he appeared in court regarding the common assault he had been instructed by his legal adviser not to say anything other than to enter a guilty plea. He gave evidence that had he known the consequences, particularly regarding his application for citizenship, he would have done things differently.
In his affidavit Mr Singh discusses his remorse and sets out his efforts at reform:
I do not want to justify my mistakes or use the above- mentioned circumstances as the excuses to my offences. I take responsibility of my past actions and accept that I made mistakes and drove and acted inappropriately while committing those offences. However, I am a reformed person. I am ashamed and very remorseful of my past offences, and I vow to never repeat them again in my life. I have realised the importance of being a safe and responsible driver for my family and other road users' safety. I also did the PCYC Traffic Offenders Intervention Program … 200 hours of community service and Alcoholics Anonymous Meeting … which made me learn the importance of driving safe for mine and others' safety. I also understood the importance of being a responsible father and a husband and since then, my wife and I have been a very loving relationship. I have maintained a good driving record and a clean criminal record since then and recently, have been approved as a bus driver by the Bus Driver Authority, who generally do not allow a person to drive if they consider them a risk to other road users.
The self-realisation and the remorse resulted in me making changes to my lifestyle. I also spend more time with my family and children, and value the importance of family in life, which makes me to act rationally and responsibly at all times in my life. I have more inclination towards my religion (Sikhism), and I go to Sikh temple in Glenwood every day and try to serve the temple and community as much as I can. The closeness to my religion has enhanced the values, such as calmness and compassion, in my life. These changes, in how I conduct my life, have helped me in becoming not just a responsible driver, but also an improved and responsible human being. The evidence of my reform is reflected in the fact that for the past 3 years or more, I have not committed any other offence and have driven safely.[15]
[15] T1/12-13
Mr Singh argues he has been punished for his offending and noted that his poor driving record had caused him to be rejected for jobs he had applied for. He submits he has changed significantly since his last offence and writes in his affidavit ‘I have given up on alcohol and have not drunk any alcohol for almost past 5 years’ [sic].
When questioned about his alcohol use, Mr Singh confirmed having reduced his intake. He gave evidence of having slowly reduced his drinking following the common assault. Mr Singh said that he had been a daily drinker but now his drinking is almost exclusively on the weekends. He occasionally consumes alcohol during the week, but when he does he consumes less alcohol than he did previously.
Mr Singh conceded that the reduced alcohol consumption he described at the hearing was inconsistent to the affidavit where he claimed not to have not drunk alcohol for almost 5 years. However, he claimed to have completely stopped drinking following the common assault conviction and the period during which he was subject to a good behaviour bond.
In his application for citizenship Mr Singh was asked if he ‘had been convicted of, or found guilty of, any offences overseas or in Australia?’ Mr Singh confirmed he had and provided details of the driving offences from January and May 2011, and drink driving convictions from April 2013 and May 2017, but not the common assault conviction of April 2018[16]
[16] T4/132
During cross examination Mr Singh was asked why he did not declare the common assault in his application. He explained Ms Sohal had completed the application on his behalf. It was his evidence that she had told him there was limited space to provide details of the offending and he had asked her to attach his criminal history as a separate document, which he agreed had not been done.
Jagbir Karu Sohal’s evidence
Jagbir Karu Sohal is Mr Singh’s wife. They married in India prior to immigrating to Australia together in 2008. Ms Sohal has provided an affidavit dated 8 August 2022 in support of Mr Singh’s application and gave evidence at the hearing into his application.
In her affidavit Ms Sohal acknowledges Mr Singh’s past offending including his driving offences and the conviction for common assault. Consistent with Mr Singh, she writes that he was stressed at the time he committed the ‘middle range PCA offence in 2017’, as his elderly parents In India had some major health issues. She also states that the incident leading to the common assault conviction was a ‘verbal’ argument. She writes in part:
Due to his work and family commitments, he could not travel and was very worried about them. The speeding offence committed in 2019 (which is not mentioned in the decision record) was when I had to go work and kids were all alone at home, and thus, he tried to rush back. The common assault charge was in relation to a "verbal" argument Raminder had with me, and our neighbours complained to the police. There was no physical altercation. Whilst these are not excuses and Raminder accepts that he committed those mistakes in the past, his circumstances were very stressful. Raising a young family in a new country was not easy. He was stressed about finances, family issues, and health of his parents in India…[17]
[17] T1/16
Ms Shoal confirms that Mr Singh has participated in counselling, the PCYC Traffic Offenders Intervention Program, 200 hours of community services and Alcoholics Anonymous.[18] She writes in part:
He has completely given up on alcohol and have not drunk any alcohol for almost past 5 years. He has a meaningful employment and spends more time with family and children and values the importance of family in life. He participates actively in children's education, upbringing, and extra-curricular activities. He has been an ideal husband and father since then.
He has also indulged in religious activities and goes to Sikh temple in Glenwood every day and serves the temple. We can observe the change in him after this and we can notice that he is very calm and compassionate human-being. Our friends and family also describe him as a kind soul.
The evidence of his reform is reflected in the fact that for the past 3 years, he has not committed any other offence. His criminal record and driving record have been spotless since then and he vows to improve continuously all his life. I will continue to do the same in future.[19]
[18] T1/17
[19] T1/17
Ms Sohal confirmed she helped Mr Singh complete his application for citizenship as she had previously successfully applied for citizenship for her and their children. Ms Sohal gave evidence that Mr Singh was present when she was completing his application. She recalled discussing listing his offending in response to the character declaration question. It was Ms Sohal’s evidence that she was ‘a bit confused’ but relied on her husband as to which offences should be listed in response to the character declaration question. She claims that he had told her the common assault conviction had been ‘quashed’.
Character references
Mr Singh has provided character references in support of his application including from his friends, his employer and Ms Sohal. The references speak to his remorse and shame at his offending. They confirm he has worked to improve himself through community service and participation at Temple.
CONSIDERATION
The Instructions provide a non-exhaustive list of factors that decision makers may consider when assessing whether an applicant is of good character. These include mitigating factors which may indicate the person is of good character despite adverse information.
Relevantly the factors identified include the length of time since the applicant’s offences and convictions, whether the applicant has shown remorse, extenuating circumstances that existed at the time of the offence and other evidence that a person is of good character.
The Respondent contends that limited time has passed since the most recent offending. Mr Singh remained subject to a good behaviour bond until May 2019 but in the context of a long period of offending spanning seven years, the Respondent argues this is insufficient for a finding of good character.[20]
[20] Respondent’s Statement of Facts, Issues and Contentions, [29]
Having first arrived in Australia in 2008, Mr Singh’s offending began in 2011 and his repeated driving offences represent a pattern of behaviour which I accept may be indicative of a disregard for the law. However, the most recent offending of note was the common assault in 2018 and his obligation to the court ended in May 2019. Clearly a considerable period of time has now passed during which Mr Singh has not reoffended.
It is not in dispute that following the common assault Mr Singh engaged in substantial rehabilitation including counselling and he completed his community service obligations.
Mr Singh maintains that the common assault, which he refers to as a ‘verbal argument’, was significantly less serious than recorded in the police facts. His account is largely supported by Ms Sohal, who was the victim of the offence. However, I consider the police account more plausible given the circumstances and his having plead guilty.
Regardless of the specific circumstances of the offence, Mr Singh was obliged to acknowledge the common assault in his citizenship application. The common assault offence does not appear on the Nationally Coordinated Criminal History Check Certificate – which I accept may indicates he was found guilty without a conviction being recorded - but Mr Singh did not submit this was the reason he failed to declare the conviction. In any event, he would still have been required to acknowledge the offence as part of this application.
The explanation he provided essentially makes Ms Sohal responsible for the omission. Ms Sohal indicated she was acting on Mr Singh’s instructions not to include the offending in the application. Her evidence was more credible and consistent with the facts and I find Mr Singh’s failure to declare the offence reflects poorly on his character.

Alcohol use has been a central component of Mr Singh’s most serious driving offences and appears to have been a factor in the common assault. In August 2022 he claimed to have ‘given up’ alcohol which he had not consumed for almost 5 years. By his own evidence both assertions are incorrect.
In a report prepared by an accredited mental health social worker social worker dated 4 May 2018, Mr Singh is assessed as being in the ‘severe range’ for anxiety and depression, and moderately depressed.[21] Mr Singh attributes his offending in part to external stressors including his parents’ ill health, having a young family, marital and financial issues. While these factors may have contributed to his offending, there is limited evidence regarding his mental health and I am not satisfied the external factors he has cited account for his repeated offending between 2011 and 2018.
[21] SM2/65-68
When making an assessment of Mr Singh’s character, I am required to consider the evidence as a whole and Mr Singh’s behaviour over time. In this this regard I note Mr Singh is currently employed as a security guard and is now an accredited bus driver. He has met the obligations imposed on him by the courts following his convictions and a number of years have since passed without conviction. Those considerations support a finding of good character. I afford some weight to the positive character references provided on behalf of Mr Singh and the support given to him by Ms Sohal.
However, on balance, having particular regard to his unreliable evidence, failure to declare the common assault conviction and the extended period over which he was offending, I cannot be positively satisfied that Mr Singh is of good character at this time.
DECISION
For the reasons outlined above, the decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs dated 18 July 2022 to refuse Mr Singh’s application for citizenship is affirmed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of

.................................[Sgd].......................................
Associate
Dated: 30 November 2023

Date of hearing: 1 September 2023

Applicant: In person

Solicitors for the Respondent: Ms L Hargrave, Clayton Utz

[2023] AATA 4031

30 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date of hearing:	1 September 2023
Applicant:	In person
Solicitors for the Respondent:	Ms L Hargrave, Clayton Utz