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

Singh and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 3340 (13 October 2022)
Division:GENERAL DIVISION
File Number: 2021/9372
Re:Mandeep Singh
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Dr L Bygrave, Member
Date:13 October 2022
Place:Sydney

The decision under review is affirmed.
.................................[SGD].......................................
Dr L Bygrave, Member
Catchwords
CITIZENSHIP – application for Australian citizenship by conferral – whether Applicant is a person of good character pursuant to paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) – Australian Citizenship [Policy Statement] – Citizenship Procedural Instruction 15 – decision under review affirmed
legislation
Australian Citizenship Act 2007 (Cth) ss 21, 24
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
secondary materials
Australian Citizenship [Policy Statement] (27 November 2020)
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (26 February 2021)
REASONS FOR DECISION
Dr L Bygrave, Member
13 October 2022
INTRODUCTION

Mr Mandeep Singh is a citizen of India who first arrived in Australia on 15 April 2009 as the holder of a Vocational Education and Training Sector (subclass 572) visa. He was granted an Employer Nomination Scheme (subclass 186) permanent visa as a dependent applicant on 29 July 2016.
On 14 June 2021, Mr Singh lodged an application for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (Cth) (the Act). This application was refused by a delegate of the Minister[1] on 8 November 2021 on the basis that Mr Singh did not satisfy the ‘good character’ requirement in paragraph 21(2)(h) of the Act.
[1] A delegated decision-maker under section 53 of the Act for the purposes of exercising the Minister’s powers under section 24 of the Act.
On 2 December 2021, Mr Singh made an application for review to the General Division of the Administrative Appeals Tribunal (the Tribunal).
The matter was heard by the Tribunal in Sydney on 19 September 2022. Mr Singh did not have legal representation; he attended the hearing by videoconference and gave oral evidence with the assistance of an interpreter of the Punjabi language.
RELEVANT LEGISLATION and policy
Subsection 21(1) of the Act states that a person may make an application to the Minister to become an Australian citizen. Pursuant to subsection 24(1) of the Act:
24 Minister’s decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
The general eligibility requirements for Australian citizenship are stipulated in subsection 21(2) of the Act and relevantly include:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application. [emphasis added]
Australian Citizenship [Policy Statement] and Citizenship Procedural Instruction 15
The Act does not define the term ‘good character’; however, policy guidance can be found in the Australian Citizenship [Policy Statement] (the Citizenship Statement).
The Citizenship Statement outlines the ‘overarching legislative requirements for the process of becoming an Australian citizen’ and lists a framework of related documents. These documents include the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) that was reissued on 26 February 2021 with the purpose to ‘identify the legal requirements, and related policy and procedures, that apply to the assessment of an application for Australian citizenship’ under the Act.[2]
[2] Australian Citizenship [Policy Statement] and CPI 15 – Assessing Good Character under the Citizenship Act, section 1.
Although I am not bound to strictly apply the Citizenship Statement and CPI 15, these are government policies and should be considered unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[3]
[3] [1979] AATA 179; (1979) 2 ALD 634.
The Citizenship Statement sets out the rights and responsibilities of Australian citizenship, observing that Australian citizenship is ‘a privilege requiring a continuing commitment to Australia’ and ‘a common bond, involving reciprocal rights and obligations.’[4]
[4] Australian Citizenship [Policy Statement], section 3.2.
CPI 15 provides policy guidance on the interpretation and application of the good character requirement. The decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs is cited as guidance to the definition of good character:
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 while 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] [emphasis added]
[5] (1996) 68 FCR 422 at [431]-[432].
CPI 15 further states that the phrase ‘enduring moral qualities’ encompasses concepts such as characteristics that have endured over a long period of time, distinguishing right from wrong, and behaving in an ethical manner including conforming to the rules and values of Australian society.[6] This good character requirement necessitates considering a person ‘in a holistic way’ and deliberating about all aspects of their life that may be relevant to their character.[7] I can be satisfied a person is of good character if they have demonstrated ‘good enduring/lasting moral qualities’ before and throughout the time they have held a visa and their citizenship application process.[8]
[6] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.
[7] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.
[8] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.
The ‘role’ of the character requirement in a citizenship application is explained as follows by Deputy President Breen in Re Fenn and Minister for Immigration and Multicultural Affairs:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.[9]
[9] [2000] AATA 931 at [8].
CPI 15 also highlights ‘community standards’ and refers to the decision by Deputy President Forgie in Zheng and Minister for Immigration and Citizenship, in which she stated:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.[10]
[10] [2011] AATA 304 at [120].
Community standards that are reflected in Government initiatives are identified in CPI 15 and include the view that ‘domestic violence…in any form is not acceptable in the Australian community’.[11]
[11] CPI 15 – Assessing Good Character under the Citizenship Act, section 3.3.
CPI 15 sets out a non-exhaustive list of characteristics of good character. Relevant to this matter, as a general proposition, a person of good character would:
·‘respect and abide by the law in Australia’;
·‘not practice deception…in dealings with the Australian Government’ such as ‘concealing criminal convictions’; and
·‘not be violent…and not cause harm to others through their conduct’.[12]
[12] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.
I note that CPI 15 states the application of these principles should be considered in view of the facts of the particular case and ‘should not be applied rigidly or inflexibly’.[13] Further, it is necessary to consider any other information relevant to a person’s character such as their family life, whether they are responsibly employed and paying taxes, the time that has elapsed since their offending and whether they have expressed genuine remorse for their past wrong doing. CPI 15 articulates this process as follows:
Ultimately, a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.[14]
EVIDENCE
[13] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.
[14] CPI 15 – Assessing Good Character under the Citizenship Act, section 4.
The Applicant
Mr Singh is 40 years old. He has been married to Ms ‘A’, now an Australian citizen, since 2008 and they have two children who were born in Australia in 2010 and 2017.
Mr Singh and Ms ‘A’ first arrived in Australia in April 2009; Ms ‘A’ was the primary holder of a Vocational Education and Training Sector (subclass 572) visa and studied hairdressing. In July 2016, Ms ‘A’ obtained an Employer Nomination Scheme (subclass 186) permanent visa based on her employment as a hairdresser and Mr Singh was the dependent applicant.
Mr Singh has undertaken employment including as a taxi driver and at a petrol station while in Australia.
Ms ‘A’ acquired Australian citizenship in 2019. Mr Singh and Ms ‘A’ are currently in the process of purchasing a restaurant business in a regional town.
Criminal offences
Mr Singh’s offences are set out in an Australian Criminal Intelligence Commission report dated 25 August 2021.
Conviction on 10 September 2018
On 10 September 2018, Mr Singh was convicted in the Magistrate’s Court of the offence of ‘unlawful assault’ and fined ‘$500 with $82.40 statutory costs.’[15] The details of this offence are described in Court documents as follows:
·On 23 April 2018 at approximately 10pm, Mr Singh was eating dinner with Ms ‘A’ and they engaged in an argument about Ms ‘A’ failing her driving test.
·Mr Singh told Ms ‘A’ she would not be going for her driving test again due to a lack of finances and she became angry with him.
·Mr Singh slapped Ms ‘A’ three times to the side of her face; she sustained soreness to her cheek and began crying.
·The eight-year-old child of Mr Singh and Ms ‘A’ was present during the assault.
·Ms ‘A’ and their children subsequently left their house and went to a neighbour’s house until police arrived.
·Mr Singh told the police he knew it was against the law to hit his wife but he was ‘very tired and stressed and his wife [was] constantly arguing without any reason’.[16]
[15] Exhibit T-T6, page 122.
[16] Exhibit ST-ST1, pages 4, 9-11.
At the Tribunal hearing, Mr Singh and Ms ‘A’ accepted the details of this offence were correct. Mr Singh confirmed that he assaulted Ms ‘A’ in April 2018 but said this was because he was overtired and angry. Ms ‘A’ also said that Mr Singh’s behaviour was because she ‘didn’t listen’ to him. She said that, after the assault, she and their children went to their neighbour’s house and it was their neighbour who called the police.
Convictions on 12 December 2019
Mr Singh was convicted in the Magistrate’s Court on 12 December 2019 of the offences ‘contravene family violence safety notice’ and ‘unlawful assault’ and fined ‘$1500’.[17]
[17] Exhibit T-T6, page 122.
Ms ‘A’ described the behaviour of Mr Singh that resulted in the conviction of ‘unlawful assault’ in a handwritten witness statement dated 16 August 2019. She stated:
·On 16 August 2019 at approximately 2:30pm, Mr Singh began ‘yelling’ at Ms ‘A’ and ‘accusing [her] of cheating on him because [she] had been talking to a new friend’.
·Mr Singh then started to ‘hit [Ms ‘A’] to the back of [her] head with his open hand’.
·Ms ‘A’ called her brother on speaker phone, who told Mr Singh to stop hitting her.
·Mr Singh then started ‘yelling and swearing’ at Ms ‘A’’s brother.
·Mr Singh ‘continued’ to hit Ms ‘A’ to her face and head until she ‘fell to the ground’. He then continued ‘hitting and kicking’ her for ‘over 30 minutes until his anger was gone’.[18]
[18] Exhibit ST-ST8, pages 23-24.
Ms ‘A’ further stated that, as a result of this assault, she had a ‘very sore head [and] neck’, ‘scratches to [her] neck’ and ‘bruises to [her] face and hip’ and concluded:
My husband’s anger is very bad and I am extremely fearful for my safety and the safety of my family.
I am scared that next time I will be killed.[19]
[19] Exhibit ST-ST8, pages 25-26.
Mr Singh and Ms ‘A’ told the Tribunal that Ms ‘A’’s brother called the police who attended their home and subsequently arrested Mr Singh. They both attributed the situation to Ms ‘A’’s brother who was living with them at the time and had insinuated (incorrectly) that Ms ‘A’ was having a relationship with another man in order to provoke a reaction from Mr Singh.
Court and police documents show police served a ‘Family Violence Safety Notice’ on Mr Singh on 16 August 2019; this notice included ‘full no-contact conditions’ and ‘prohibited’ Mr Singh from contacting Ms ‘A’ unless ‘in the company of a police officer’ and ‘from being within five metres’ of Ms ‘A’.[20] In contravention of this notice, Mr Singh and Ms ‘A’ presented together at the police station at 1:30pm on 17 August 2019 (the following day), and Ms ‘A’ said she ‘wished to withdraw her statement and not have an order with [Mr Singh] any more’.[21] It was this incident that resulted in Mr Singh’s conviction on 12 December 2019 for the offence of ‘contravene family violence safety notice’.
[20] Exhibit ST-ST9, page 29.
[21] Exhibit ST-ST9, page 29.
Rehabilitation
Mr Singh filed a letter from the senior clinician/coordinator at the Djerriwarrh Health Services dated 7 October 2020 that noted Mr Singh had engaged in the ‘Men’s Behaviour Change Group Program’ and attended ‘a 20 week program (a combination of group participation face to face and case management counselling sessions over the phone during COVID-19 restrictions)’.[22]
[22] Exhibit T-T1, page 11.
At the Tribunal hearing, Mr Singh said that he attended this course as a requirement of the Court order made on 12 December 2019. He said the course has taught him how to manage and control his anger, and to walk away if he is unable to control his anger.
In a written statement dated 4 October 2021, Ms ‘A’ stated:
Mandeep has been doing all he could to improve himself by involving and undergoing anger management course and behaviour change program. He is a very calm and positive person; the courses have helped him become a better version of himself.[23]
[23] Exhibit T-T1, page 8.
Character references
CPI 15 provides limited guidance about the weight to be attributed to character references, noting only that less weight should not be attributed to a character reference ‘merely because the text does not contain an explicit statement of support for the applicant acquiring Australian citizenship’.[24]
[24] CPI 15 – Assessing Good Character under the Citizenship Act, section 14.1.
Mr Singh filed written references from a cousin, Mr ‘B’, who has known him since birth and Ms ‘A’ since 2010, and a friend, Ms ‘C’, who has been a friend since 2011. Both Mr ‘B’ and Ms ‘C’ also gave oral evidence at the Tribunal hearing.
Mr ‘B’, in his statement dated 5 October 2021, wrote that he was ‘aware of the phase of [Mr Singh and Ms ‘A’’s] domestic violence in the years 2018 and 2019’ and considered the ‘disputes are now sufficiently resolved’.[25] At the hearing, Mr ‘C’ said that he knew of Mr Singh’s offending and provided support to Mr Singh and Ms ‘A’ during this period. He said he saw them and their children at ‘multiple celebrations’ and considered their relationship was ‘back to normal’.
[25] Exhibit T-T1, page 9.
Ms ‘C’ provided a written statement dated 4 October 2021; she referred to their family violence dispute in 2018 and 2019, which she considered ‘successfully resolved’ and noted ‘they both are doing great for the family needs, wellbeing and raising their two young children’.[26]
[26] Exhibit T-T1, page 10.
CONSIDERATION
The sole issue for determination is whether Mr Singh satisfies the requirements of good character in paragraph 21(2)(h) of the Act.
Guided by the Citizenship Statement and CPI 15, I must weigh all the factors relevant to Mr Singh’s character including the nature and seriousness of his offending, the time elapsed since his offending, his remorse and rehabilitation, and factors including his family life and employment.
Having regard to the evidence, I am satisfied that Mr Singh has been convicted of ‘unlawful assault’ on two occasions following incidents in which he slapped Ms ‘A’ in April 2018, and hit and kicked Ms ‘A’ in August 2019.
I find these offences are extremely serious. In particular, the descriptions of Mr Singh’s offending behaviour in paragraphs 23 to 29 shows he was violent and caused harm to Ms ‘A’ and was aware that this was against the law in Australia. I reiterate the statement in CPI 15 that community standards include the view that domestic violence – or violence of any kind – is not acceptable in the Australian community.
However, I also note that the sentences imposed by the Magistrate’s Court in relation to these offences – convictions and fines – indicates that the Court considered his offending was at the lower end of seriousness.
At the Tribunal hearing, Mr Singh accepted his behaviour included assaulting Ms ‘A’ in April 2018 and August 2019. He said he is remorseful for his behaviour and, to demonstrate this, has made Ms ‘A’ the sole owner of the house they recently built together.
However, I was troubled by the following aspects of the evidence from Mr Singh and Ms ‘A’.
First, they both appeared to blame Ms ‘A’’s brother as the reason for Mr Singh’s assaulting Ms ‘A’. While it may have been the case that Ms ‘A’’s brother antagonised the relationship between Ms ‘A’ and Mr Singh in 2019, he was not present in Australia in April 2018 and cannot be held responsible for the violent assault Mr Singh sustained on Ms ‘A’ in August 2019 because he thought she may be having a relationship with another man. I also find Ms ‘A’’s excuse that Mr Singh slapped her in April 2018 because she did not listen to him extremely concerning.
Second, Mr Singh and Ms ‘A’ submitted to the Tribunal that his aggressive behaviour was due to his epilepsy medication. To support this view, Mr Singh provided a medical certificate from Associate Professor Brian Chambers (neurologist) dated 4 May 2022 that stated Mr Singh had been ‘under [his] care for treatment of epilepsy since 2012’ and the condition is ‘well-controlled’ on medication.[27] However, in contrast to Mr Singh’s view, Associate Professor Chambers stated it was ‘most unlikely’ that Mr Singh’s medication for epilepsy would cause him to be aggressive as it is ‘commonly prescribed as a mood stabiliser’ and further opined that ‘his short fuse’ at the time was more likely explained by him ‘doing night shift taxi driving’.[28] On the basis of this evidence, I reject any notion that Mr Singh’s behaviour was due to the effects of medication.
[27] Exhibit A2.
[28] Exhibit A2.

Third, Mr Singh did not fully disclose all his offences in his application for Australian citizenship. Rather, he only stated he contravened a ‘Family Violence Order in 2019’, had ‘completed the conditions’ and ‘the matter was closed’.[29] At the hearing, Mr Singh said this error was made by his lawyer who completed his application for Australian citizenship on his behalf and knew about his convictions. A letter from Mr Singh’s lawyer on 24 October 2021 stated Mr Singh ‘mistakenly failed to disclose all past criminal incidents’ but ‘there was no malice intention by failing to disclose such information’.[30] Weighing this evidence, I accept Mr Singh’s evidence that he did not deliberately seek to deceive the Australian Government by concealing his criminal convictions.
[29] Exhibit T-T4, page 103.
[30] Exhibit T-T10, page 142.
Fourth, despite being issued Court fines on 10 September 2018 and 12 December 2019, Mr Singh did not pay these fines until 1 and 4 October 2021. At the hearing, Mr Singh said he attempted to pay the fines prior to October 2021 but was told there were no charges in the system. Ms ‘A’ provided an email after the hearing also stating that they were unable to pay the fines until they contacted the Melbourne office, which found the charges and they then paid the fines. I have significant difficulties accepting this version of events by Mr Singh and Ms ‘A’, particularly as the timing for the payment of Mr Singh’s fines coincided with his lawyer writing to the Department of Home Affairs in relation to his application for citizenship.
Finally, I note that limited time has elapsed since Mr Singh’s most recent offence. It is approximately three years since his assault on Ms ‘A’ in August 2019 and less than two-and-a-half years since he completed the Men’s Behaviour Change Group Program. It is my view that Mr Singh needs further time to demonstrate his rehabilitation.
In relation to factors that demonstrate a positive view of Mr Singh’s character, I have had regard to evidence filed by Ms ‘A’ that shows he is a ‘very nice and caring husband’ and a ‘very helpful man and responsible father’.[31] I accept that this is further supported by the evidence of Mr ‘B’ and Ms ‘C’. I also place positive weight on Mr Singh’s employment history.
[31] Exhibit A4.
CONCLUSION
In considering all the relevant circumstances and weighing the available evidence, I do not find that Mr Singh is of good character as required by paragraph 21(2)(h) of the Act at this time. For this reason, he does not satisfy paragraph 21(2)(h) of the Act.
My conclusion does not preclude Mr Singh from making an application for citizenship in the future. It may be that with the passage of time, Mr Singh will be able to demonstrate that he does meet the requirements for a grant of citizenship.
DECISION
For the reasons set out above, the decision under review is affirmed.

I certify that the preceding 52 (fifty - two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..................................[SGD]......................................
Associate
Dated: 13 October 2022

Date of hearing: 19 September 2022

Applicant:

Solicitors for the Respondent:

In Person

Ms S Roberts, Mills Oakley Lawyers

[2022] AATA 3340

13 October 2022

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Immigration

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Statutory Interpretation

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