Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 3093

Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3093 (1 September 2021)
Division:GENERAL DIVISION
File Number: 2020/1251
Re:AMRIT PAL SINGH
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R Maguire
Date:01 September 2021
Place:Brisbane

The Reviewable Decision, dated 04 February 2020, is affirmed.
.........................[SGD] .........................
Member R Maguire
Catchwords
CITIZENSHIP – citizenship cancellation – character test – whether Applicant is of good character – existence of Domestic Violence Order by consent – independent evidence of multiple contraventions – insufficient evidence to formally charge – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Domestic and Family Violence Protection Act 2012 (Qld)
Cases
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Karatunov and Minister for Immigration and Border Protection [2017] AATA 132
Khan and Minister for Immigration and Border Protection [2018] AATA 3029
Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Re Mendoza v Minister for Immigration and Border Protection [2018] AATA 686
Re Prasad v Minister for Immigration and Border Protection [2017] AATA 1506
Re Umer v Minister for Immigration and Border Protection [2018] AATA 1630
Re VQLM and Minister for Home Affairs [2018] AATA 3540
Secondary Materials
Australian Citizenship Policy
Convention on the Rights of the Child
REASONS FOR DECISION
Member R Maguire
01 September 2021
INTRODUCTION

This is an application by Mr. Amrit Pal Singh (’the Applicant’) for the review of a decision[1] by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘MICMSMA’) to cancel the approval of the Applicant’s application to become an Australian citizen, on the ground that the Applicant was not of good character as provided for in section 25(2)(b)(iii) of the Australian Citizenship Act 2007 (’the Act’).
[1] Exhibit 1, T documents, T2, pages 10 to 20.
BACKGROUND
The Applicant is a 37-year-old citizen of India. He first arrived in Australia on 30 June 2009, as the holder of a Vocational Education and Training Sector (subclass 572) visa.[2] On 12 December 2014, he was granted a Skilled-Independent (subclass 189) visa.[3]
[2] Exhibit 1, T Documents, T18, page 236.
[3] Exhibit 1, T Documents, T19, page 237.
On 21 April 2017 the Applicant applied for Australian citizenship by conferral.[4]
[4] Exhibit 1, T Documents, T4, page 131.
On 20 September 2017, a Temporary Protection Order (‘TPO’) was made against the Applicant by the Applicant’s wife as the Aggrieved, the Aggrieved’s brother, as an associate of the aggrieved and MSB (‘the Child’) as the son of the aggrieved.[5]
[5] Exhibit 1, T Documents, SM1, pages 33 to 34.
On 13 December 2017, a Domestic Violence Order (‘DVO’) was made against the Applicant by consent and without admissions.[6] It was originally to remain in place until 20 June 2023, but was later extended until 6 November 2024.[7]
[6] Exhibit 1, T Documents, SM1, pages 11 to 12.
[7] Exhibit 1, T Documents, SM1, page 7.
On 6 June 2018, the Applicant was notified that his application for Australian citizenship had been approved.[8]
[8] Exhibit 1, T Documents, T2, page 13.
On 14 September 2018, the Applicant was advised by the Department of Home Affairs (’the Department’) not to attend his citizenship ceremony due to information the Department had received relating to his character that required further investigation.[9]
[9] Exhibit 1, T Documents, T8, page 173.
On 28 December 2018, the Applicant was charged with contravening the DVO made on 20 June 2018.[10] On 18 March 2019, the Toowoomba Magistrates Court found there was no evidence to offer on this charge.[11]
[10] Exhibit 1, T Documents, SM1, pages 128 to 131.
[11] Exhibit 10, QPS Queensland Person History.
On 21 May 2019, the Applicant was charged with three counts of contravening the DVO on various dates,[12] and one count of assault causing bodily harm.[13] All of those charges were dismissed by the Toowoomba Magistrates Court on 28 August 2019.[14]
[12]    Exhibit 1, T Documents, SM1, pages 132 to 140.
[13]    Ibid, pages 142 to 146.
[14]    Exhibit 10, QPS Queensland Person History.
On 13 July 2019, the Applicant received a Notification of Intention to Consider Cancellation of Approval (’the NOICCA’) of his Australian citizenship.[15]
[15] Exhibit 1, T Documents, T11, pages 192 to 195.
On 4 February 2020, a delegate of MICMSMA (’the delegate’) made a decision to cancel the approval of the Applicant’s application for Australian citizenship by conferral[16] on the ground that the applicant was not of good character, as provided in section 25(2)(b)(iii) of the Act.
[16]Ibid, T2, pages 10 to 20.
The Applicant subsequently sought a review of the delegate’s decision by way of an application to this Tribunal, dated 16 March 2020.[17]
[17] Ibid, T1, pages 1 to 9.
Hearings were held on 11 March and 7 July respectively, with the assistance of an interpreter. The Applicant attended the hearing in person.
For the reasons outlined below, the Tribunal considers that the decision under review should be affirmed.
ISSUE
The issue for the Tribunal to determine is whether, at the time of the decision to cancel the approval of the Applicant’s application for Australian citizenship by conferral, the Applicant was not of good character for the purposes of section 25(2)(b)(iii) of the Act.
The Tribunal has jurisdiction to review the Decision pursuant to section 52(1)(c) of the Act.
A synopsis of the Applicant’s submissions is as follows:
·The Applicant conceded that he is the subject of a DVO in effect until 6 November 2024.[18]
[18]    Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, page 1, [4]. See also, Transcript of     Tribunal Proceedings (11 March 2021), page 34, lines 10 to 35.
·On 21 April 2017, the Applicant applied for Australian citizenship by conferral which was approved on 6 June 2018.
·On 20 September 2017, a TPO was made against the Applicant, listing the Applicant's wife as the Aggrieved, the Aggrieved’s brother as an associate and a child of the Aggrieved. The TPO resulted from an incident that took place between the Applicant, the Aggrieved and her brother.
·On 13 December 2017, a DVO was made against the Applicant by the Aggrieved as a result of the incident that took place on 17 September 2017, described above. The DVO was ordered by consent without admissions and was originally to remain in place until 20 June 2023.
·The Applicant provided a Statutory Declaration detailing the incident that occurred on 17 September 2017.[19]. The Applicant states that the incident began when he was spending time at his home with the Child, who was three years of age at the time.
[19]    Exhibit 3, pages 1 to 2.
·In his Statutory Declaration, the Applicant stated that he suddenly discovered that the Child had been placed in a vehicle owned by the Aggrieved’s brother without the Applicant's knowledge or permission.
·As described in his Statutory Declaration, the Applicant felt afraid and panicked when he was unable to locate the Child as he feared for their safety. The Applicant was then confronted by the Aggrieved’s brother who physically prevented him from accessing the Child, or from releasing him from the vehicle where he was being held. The confrontation resulted in a minor physical altercation between the Applicant and the Aggrieved’s brother.
·The Applicant’s entry into and presence at the Aggrieved’s residential address without her knowledge on the day of this incident formed the basis of the reason as to why the DVO was made against the Applicant by the Aggrieved.
·On 14 September 2018, the Applicant was advised by the Department not to attend his citizenship ceremony due to information the Department had received relating to his character.
·On 28 December 2018, the Applicant was charged with attending the home of the Aggrieved, in contravention of the DVO made on 20 June 2018. On 18 March 2019, the Toowoomba Magistrates Court found there was no evidence to offer on this charge.
·On 21 May 2019, the Applicant was charged with three charges of contravening the DVO on 24 April 2019, 27 April 2019 and on 03 May 2019. The Applicant was charged with a single count of assaults causing bodily harm allegedly committed on 24 April 2019. On 28 August 2019, all charges were dismissed by the Toowoomba Magistrates Court.
·On 13 July 2019, the Applicant received a NOICCA of his application for Australian citizenship, as the Department had been made aware that the Applicant was the subject of a DVO until 20 June 2023.
·On 04 February 2020, the Applicant received a notification of the decision to cancel the approval of his application for Australian citizenship. The Applicant subsequently appealed to the Tribunal for review of this decision.
·It was submitted that the Applicant is of good character as the Applicant had demonstrated good enduring and lasting moral qualities.[20] The Applicant's behaviour on 17 September 2017 was a one-off occurrence that was an action of fear, not aggression.[21]
[20]    Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions, page 10, [34].
[21]    Ibid.
·The Applicant had shown remorse for his conduct and taken positive steps to prevent a repeat of this behaviour.[22]
[22]    Ibid.
·Overall, on examination of the Applicant's moral qualities holistically, he should be considered a person of good character to be deemed eligible to be granted Australian citizenship.[23]
[23]    Ibid.
·The Applicant has not been convicted of any offence and the charges described above have been withdrawn.[24]
[24]    Ibid, page 11, [36].
·The Applicant experienced fear and concern when he was unable to locate the Child and when he witnessed him in the vehicle of another person. His actions, though incorrect, were committed as a result of fear and panic rather than aggression or malice.[25]
[25]    Ibid, [38].
·The Applicant's actions were in response to the actions committed by the Aggrieved’s brother against him whilst he was forcibly prevented from retrieving the Child from the vehicle of a person who removed the Child from his home without his permission or consent. The Applicant's actions did not cause injury, loss of life or liberty of another person or any other type of long-term harm.[26]
[26]    Ibid, [39].
·The Applicant's actions were not directed towards a vulnerable member of the community. Instead, this was simply a one-off incident that resulted out of the fear and shock that he experienced when he suddenly saw the Child in the vehicle of a person who was attempting to forcibly take him from his home.[27]
[27]    Ibid, [40].
·The circumstances which gave rise to the incident leading to the DVO have been resolved. The Applicant has not demonstrated a pattern of wrongful behaviour and has not had any further altercations or infractions since this single incident. The Applicant acknowledges his previous wrongful actions and has taken positive steps to ensure he does not make a further mistake.[28]
[28]    Ibid, [41].
·The Applicant's character issues should be considered on the less serious end of the spectrum and should not be considered a serious offence.[29]
[29]    Ibid, [42].
·The Applicant is holistically a person of good character who made an error during a temporary and brief lapse of better judgement.[30]
[30]    Ibid, [43].
·The Applicant does not have a history of wrongful behaviour and other than the incident that led to the DVO being placed against him, his behaviour in Australia has been exemplary. Even a person of good character may on occasion suffer a temporary lapse of judgment and make a mistake.[31]
[31]    Ibid, [44].
·The Applicant has resided in Australia for more than eleven years, during which time he has positively contributed to the Australian community in several ways. He has always been honest and truthful with Australian Federal and State governments, various governing bodies and other individuals.[32]
[32]    Ibid, [45].
·The Applicant is gainfully employed and serves his community by providing safe and reliable taxi driving services, as well as through his employment as a personal carer for elderly and disabled Australians. The Applicant has remained gainfully employed for the majority of the time he has remained in Australia and has contributed significantly to his community since first arriving in Australia in 2009.[33]
[33]    Ibid, [46].
·The Applicant contributes to the Australian economy through his work and through the taxes he contributes, and he has always acted honestly and is financially responsible. In addition to obeying Australian laws and sharing Australian values, the Applicant has not practised deception or fraud in dealing with the Australian government or with individuals.[34]
[34]    Ibid, [47].
·Other than the minor incident that formed the basis of the DVO issued on 13 December 2017, the Applicant has behaved in accordance with Australia's community standards and obeyed the law.[35]
·The Applicant does not have a history of violence or assault of any sort, either in Australia or in any other country. He is recognised by friends and colleagues as a kind and caring member of the Australian community who is quick to assist others.[36]
·Each of the Statements in Support describe the Applicant as a kind, honest, generous individual who shows patience and respect to others. They describe how the Applicant provides care and support to elderly and disabled members of the Australian community through his work with Ozcare, a local community service centre, and describes his contributions as a volunteer with different organisations including the local Toowoomba Sikh community.[37]
·The Applicant enthusiastically shares Australia's democratic beliefs and respects the rights and liberties of its people. The Applicant appreciates Australia and feels proud to live in a country that ensures individual rights and freedoms are preserved.[38]
·Since the September 2017 incident, the Applicant has taken significant, tangible actions to change himself and his lifestyle in order to prevent any further issues from occurring. As described in the Applicant's Statutory Declaration, he accepts responsibility for his previous actions, openly acknowledges his mistakes and condemns his wrongful behaviour.[39]
·In August 2020, the Applicant successfully completed the Men's Behavioural Change Program (‘MBCP’) through the Domestic Violence Action Centre ('DVAC') which he commenced in October 2019.[40]
·The Applicant has already completed sessions with DVAC over twenty-seven weeks and plans to continue attending regular sessions. The Applicant describes that he has gained valuable understanding of how to act and respond positively to challenges and conflicts as they arise, and now feels more confident and capable resolving issues and handling challenging situations in a positive manner.[41]
·The incident of September 2017 took place in the context of tensions and anxieties arising from the breakdown of his marriage, which he has since come to terms with. He is no longer in conflict with the Aggrieved.[42]
·The Applicant regrets his previous wrongful actions and has changed his circumstances and himself to ensure he does not make any further mistakes.[43]
·The Applicant does not have a criminal record, has not been convicted of any offence and does not have any pending charges against him.[44]
[35]    Ibid, [48].
[36]    Ibid, [49].
[37]    Ibid, [50].
[38]    Ibid, [51].
[39]    Ibid, [52].
[40] Ibid, [53].
[41] Ibid, [54].
[42] Ibid, [55] to [56].
[43] Ibid, [57].
[44] Ibid, [58].
A synopsis of the Respondent’s submissions is as follows:
·The Tribunal should be satisfied that the Applicant is not of good character for the purposes of section 25(2)(b)(iii) of the Act because:[45]
[45] Exhibit 13, Respondent’s Statement of Facts, Issues and Contentions, page 2, [2](a)–(c).
(a)the Applicant remains the subject to a DVO and admits that he had been involved in a domestic violence incident on 17 September 2017. There is evidence that the Applicant has breached that order on multiple occasions and to suggest that the Applicant had been involved in further incidents involving domestic violence since that time;
(b)domestic violence is a serious criminal problem within the Australian community, is viewed seriously within the Australia community, and the Applicant's conduct is not consistent with the actions of a person of good character; and
(c)the mitigating circumstances in favour of the Applicant do not outweigh the seriousness of the conduct such that the Tribunal can be satisfied that the Applicant is of good character.
·The Applicant is currently the subject of a protection order made under the Domestic and Family Violence Protection Act 2012 (Qld) as a result of an incident that occurred on 17 September 2017 between the Applicant, the Aggrieved and Aggrieved’s brother.[46]
[46] Ibid, page 6, [12].
Police obtained statements from independent witnesses who were previously unknown to the parties. The witnesses indicated that the Applicant and the Aggrieved’s brother exchanged punches and slaps and they both fell to the ground whilst the scuffle continued. The Applicant admitted to the police who attended the scene that he wrestled with the Aggrieved’s brother for approximately one minute before they broke free of each other. The Applicant was subsequently seen to have armed himself with a broom whilst walking towards the Aggrieved’s brother. However, as a result of an intervention by the witnesses who were present at the scene, the Applicant dropped the broom and retreated to the house.
[47]
[47] Ibid, [14].
On 20 September 2017, the Toowoomba Magistrates Court issued a temporary protection under the Domestic Family Violence Protection Act 2012 (Qld). On 13 December 2017, the Court made a final protection order against the Applicant. The protection order has subsequently been varied on several occasions. The most recent variation was made at the Toowoomba Magistrates Court on 06 November 2019. The order currently expires on 6 November 2024.
·
·The Tribunal should be satisfied that the Applicant is not of good character on the basis that he is currently the subject of a DVO. Whilst the Applicant had not been charged in relation to the incident, he did not deny that he was involved in a physical altercation with the Aggrieved’s brother.[48]
[48] Ibid, page 7, [16].
·Accounts of independent witnesses were that they saw the Applicant exchange punches and slaps with the Aggrieved’s brother and that the Applicant approached the Aggrieved’s brother with a broom and desisted only as a result of their intervention.[49]
[49] Ibid.
·It is accepted that the DVO was made by consent without admission. However, it is contended that this does not diminish the seriousness of being subjected to such an order, nor the fact that it has been renewed on various occasions since then. As the Tribunal noted in Karatunov and Minister for Immigration and Border Protection [2017] AATA 132 at [24]:[50]
[50] Ibid, [17].
At the hearing, much was sought to be made on behalf of the Applicant that this DVO was made without admissions pursuant to s 51(1)(c) of the Domestic and Family Violence Protection Act 2012 (Qld). The central tenet of this submission was that the making of the DVO without admissions constituted no finding of domestic violence by the court. I have difficulty in seriously entertaining such a submission. To do so, would render the DVO nonsensical and without legal foundation. The point is that a DVO was made upon certain allegations and circumstances presented to the Court that, in turn, duly convinced it to make that order. Whether or not the allegations and circumstances giving rise to the DVO were either vigorously contested or otherwise consented to by the Applicant (on whatever basis) is of no concern to the Tribunal for present purposes. The point is that the DVO was made.
·Courts and Tribunals have repeatedly observed that domestic and family violence of any kind is a very serious matter. The Tribunal in Re Mendoza v Minister for Immigration and Border Protection [2018] AATA 686 observed at [48]:[51]
[51] Ibid, [18].
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms violence are unacceptable at any time - in any place - in any circumstances - and whether manifest physically, emotionally or psychologically.
·The Tribunal in Re VQLM and Minister for Home Affairs [2018] AATA 3540 stated at [42]:[52]
[52] Ibid.
The fight against domestic violence in Australia, in the Tribunal’s opinion, goes to the core value of what is, and is not acceptable in the Australian society.
·See also: Re Karatunov and Minister for Immigration and Border Protection [2017] AATA 132 at [34]; Re Prasad v Minister for Immigration and Border Protection [2017] AATA 1506 at [32]; Re Umer v Minister for Immigration and Border Protection [2018] AATA 1630 at [54]; Re Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53].[53]
[53] Ibid.
·As stated in Citizenship Policy Instruction (‘CPI’) 15, these initiatives indicate that:[54]
[54] Ibid, page 8, [20].
Domestic violence…is not acceptable in the Australian community. Behaviour that impinges on the safety of, or creates fear in the community, is not acceptable. Persons taking part in, or condoning, such activities do not respect the rights and liberties of others in the community.
·The Tribunal should view the incident on 17 September 2017 seriously in light of the attitude of the Australian community towards domestic violence.
·The repeated renewals and length of the order imposed by the Court, being some seven years after the initial incident, reflected the objective seriousness of the incident that occurred on 16 September 2017 as did the fact that the Applicant had failed to comply with the order. It may be inferred that there is some risk of violence or danger that the Aggrieved had hoped to minimise by seeking successfully to extend the order. This incident should be treated seriously in circumstances where it occurred in front of the Applicant's and the Aggrieved’s minor child.[55]
[55] Ibid, [22].
·The Applicant's police records evinced a pattern of conduct involving domestic violence. Between 2017 and 2019, the Aggrieved has reported a range of conduct that may be considered to constitute domestic violence. The Aggrieved reported that the Applicant:[56]
[56] Ibid, pages 8 to 9, [23].
(a)approached the Indian community in Kearney Spring and the Aggrieved’s relatives in India in order to pressure her into withdrawing the protection order. She was told that it was a shame for the Indian community for her to take her husband to court;
(b)threatened the Aggrieved that he would publish videos and images of her 'private activities' to their friends and the community so that no one would marry her again. The Applicant showed the Aggrieved a snippet of such a video and informed her that he had sent a copy of that video to his brother;
(c)called the Aggrieved on a number of occasions in breach of the protection order (on some occasions repeatedly), followed her whilst she was in public, and attended her house or workplace late at night;
(d)attended the Aggrieved’s house on a number of occasions in April 2019 in order to move personal effects into her shed. On 22 April 2019, the Applicant took her laptop and attempted to leave with it. When the Aggrieved attempted to retrieve her laptop, the Applicant pushed her into a bedroom door leaving a bruise on her arm, which was observed by the police. On 27 April 2018, the Applicant attended the Aggrieved’s house and when the Aggrieved attempted to contact the police, the Applicant took her phone and ended her phone call; and
(e)attended the Aggrieved’s house on 03 May 2019 and told her to 'piss off' and get out of the house as 'it was his house now'. The Applicant was present when the police arrived. The police observed a series of text messages from the Aggrieved dated 24 April 2019 on the Applicant's phone where she expressly requested the Applicant to leave her premises as she was feeling manipulated and controlled after previously having given him permission to attend the house.
·It is accepted that the Applicant was not convicted of an offences in relation to these incidents. The Tribunal, as an administrative decision maker, is entitled to take into consideration information from a range of sources in assessing whether the Applicant is not of good character. The Tribunal should give appropriate weight to the Applicant’s conduct set out in the police reports in circumstances where:[57]
[57] Ibid, page 9, [24].
(a)the authors of the police reports are independent parties with no vested interests in these proceedings (or the dispute between the Applicant and the Aggrieved) and these reports are contemporaneous records of these incidents;
(b)the police reports referred to various objective circumstances which are consistent with a finding that the Applicant had acted in breach of the protection order. For example, the police observed the Applicant to be present at the Aggrieved’s premises on 03 May 2019. The police also observed earlier text messages on the Applicant's phone from the Aggrieved requesting him to leave, suggesting that he was present at her premises without her permission and in breach of the protection order then in effect . The police also observed bruising on the Aggrieved’s arm consistent with her claim that the Applicant pushed her into a bedroom door; and
(c)the Applicant's involvement in the incident on 17 September 2017 (which he does not deny) suggests that he has a propensity to act violently, which is consistent with the Aggrieved’s allegation against him.
·The Tribunal is also required to consider whether there are any mitigating circumstances that outweigh the seriousness of the Applicant's conduct.[58]
[58] Ibid, [25].
·The Applicant's domestic violence incident occurred on 17 September 2017. The Applicant was alleged to have been involved in a number of further domestic violence incidents since that time. The current protection order against the Applicant does not expire until 6 November 2024 and as such, the Applicant will remain under an obligation to the Court for a further period of four years. Given that since the order was made the Applicant has breached the order on various occasions, the Tribunal should be satisfied that the Applicant is of bad character. Certainly, insufficient time had elapsed for the Applicant to demonstrate that he is now a person of good character.[59]
[59] Ibid, pages 9 to 10, [26].
·The Applicant was 34 years of age at the time of the incident on 17 September 2017. He was a mature adult and his age should not be accepted by the Tribunal as a mitigating factor.[60]
[60] Ibid, [27].
·The Applicant had sought to explain the circumstance in which the 17 September 2017 incident occurred. The Applicant claimed that his conduct was 'a result of fear and panic rather than aggression or malice' in circumstances where he was 'retrieving his son from the vehicle of a person who removed a child from his home without permission or consent of the Applicant': ASFIC at [39]. This argument should not be accepted. The evidence suggested that the circumstances were such that the Applicant was aware that his (then) wife intended to take the Child out for an excursion. The police report suggested that the Aggrieved had communicated to the Applicant by text message that she intended to their child out that afternoon to which the Applicant responded, albeit indicating his discontent , and that she was present and visible to the Applicant when the latter attempted to retrieve their child from the vehicle. Further, on the Applicant's own account of the incident in his Statutory Declaration dated 11 September 2019, he stated that the Aggrieved was present when the physical altercation broke out between him and the Aggrieved’s brother. It appeared that the Applicant's conduct was motivated by his discontent with his wife's decision to take their child for an excursion rather than in fear or panic as a result of a person taking his child away from him without his parents.[61]
[61] Ibid, [28].
·The Applicant had also sought to explain that the fight broke out in circumstances where the Aggrieved’s brother pushed him in the face. This explanation should also not be accepted. The Applicant, by his own admission to the police, accepted that he and the Aggrieved’s brother had been wrestling on the ground for approximately one minute. The Applicant was also observed to have exchanged punches and slaps with the Aggrieved’s brother and later picked up a broom and walked towards him. There was no evidence to suggest that the Applicant's behaviour was an appropriate response to the alleged conduct of the Aggrieved’s brother, even if it was assumed for the purposes of argument that he did in fact push the Applicant in the face. There is no corroborating evidence to suggest that this was in fact the case.[62]
[62] Ibid, [29].
·It is accepted that the Applicant has expressed some qualified remorse for his conduct. However, the Applicant's remorse was at least partly motivated by the immediate consequences in which he found himself. Further there was some evidence that the Applicant had attempted to diminish the seriousness of his conduct at the time of the offence. For example, in his Statutory Declaration dated 07 September 2020, the Applicant claimed that 'I heard [the Aggrieved] calling the police. I walked back onto the driveway, picked up a broom and continued cleaning the taxi as I waited for the police to arrive'. This was inconsistent with the statements given by two independent witnesses who were at the scene that 'once the [Applicant] gained his feet he picked up a broom and walked towards [redacted] believing that the respondent was likely to assault [redacted] with that broom. The respondent has dropped the broom when confronted by the witnesses'. This, and the Applicant's attempt to offer excuses for his conduct on 17 September 2017 as set out in the preceding paragraphs suggests that he had not fully accepted responsibility for his actions.[63]
[63] Ibid, [30].
·The Applicant has provided evidence of some community support in the form of character references. However, the character references were provided by persons who appeared to be the Applicant's friends, or members of his family.[64]
[64] Ibid, page 11, [31].
·It is also accepted that the Applicant attended a Men's Behavioural Change Program. However, whatever the benefit of that program, the Applicant remains under an obligation to the Court and that more recent breaches of the order continue to indicate that the Tribunal should not be satisfied that the Applicant is of good character.[65]
[65] Ibid, [32].
·The CPI also provides that, given the cancellation of an approval of an application for citizenship is a discretionary power, the decision-maker should also consider the best interests of any children impacted by the decision.[66]
[66] Ibid, [33].
·Article 3.1 of the Convention on the Rights of the Child (‘CROC’) states:[67]
[67] Ibid, [34].
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.
·Chapter 22 of the Citizenship Policy provides as follows:[68]
[68] Ibid, [35].
The meaning of ‘best interests of the child’ is not defined, but is informed, in part, by the Principles in the CROC. The factors that are most likely to be relevant to citizenship decision are:
ochildren should be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse;
ofamilies should be able to stay together, as far as possible;
othe rights and duties of parents and other relevant family members should be respected and it should be recognised that both parents have common responsibilities for the upbringing and development of the child;
othe child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law;
oprevention of the illicit transfer and non-return of children abroad;
ofreedom of religion;
othe views of the child should be given weight in accordance with the child’s age, maturity and level of understanding; and
othe degree of the child’s integration into the Australian community.
·A decision to cancel the approval of the Applicant's visa would not be contrary to the best interest of the Child because:[69]
(a)the Child is an Australian citizen (having acquired Australian citizenship in 2018 with his mother) and may continue to reside in or travel to or out of Australia (subject to restrictions of general applicability) and access education, health care and social welfare in Australia and are protected by Australian laws and authorities;
(b)there is no evidence to suggest that the Child would be otherwise subjected to violence, abuse, neglect or maltreatment as a result of the cancellation of the approval of the applicant's citizenship application; and
(c)the Child would not be separated from either of his parents as a result of a decision to cancel the approval of the Applicant's citizenship application, as the Applicant is currently a permanent resident.
·In these circumstances, the best interests of the Child did not weigh against a decision to cancel the approval of the Applicant's citizenship application.[70]
·Domestic violence was viewed by the Australian community as a very serious matter. Any mitigating factors that weigh in favour of the Applicant are not sufficient to outweigh the Applicant's serious conduct and the Tribunal should be satisfied that the Applicant is not of good character for the purposes of section 25(2)(b)(iii) of the Act.[71]
·The correct or preferable decision is for the Tribunal to affirm the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).[72]
[69] Ibid, page 12, [36](a)–(c).
[70] Ibid, [37].
[71] Ibid, [38].
[72] Ibid, [39].
EVIDENCE AT HEARING :

This application was heard on 11 March 2021 and 07 July 2021. The Applicant was represented by Mr V Jain of Wickham Lawyers Pty Ltd, and the Respondent by Mr A Zhang of Clayton Utz.
The Respondent’s concerns as to the character of the Applicant arose initially from a DVO initially made in respect of an incident which occurred on 17 September 2017. The DVO has been varied or extended with the consent of the applicant a total of ten times and is presently due to expire on 06 November 2024. Concerns also arose from apparent breaches of the order by the Applicant. The Applicant acknowledged that breach of a DVO was an offence,[73] and denied having physically or verbally abused the Aggrieved.[74]
[73] Transcript of Tribunal Proceedings (11 March 2021), page 60, line 20.
[74] Ibid, page 62, lines 15 to 16,
The Applicant gave evidence consistent with submissions made on his behalf and his Statutory Declaration dated 07 September 2020. He expressed remorse for his behaviour, which he said was prompted in part by his concern that the Aggrieved’s brother (with whom he had a poor relationship) had been a serious drug addict with a bad driving history associated with drug use.[75]
[75] Ibid, page 48, lines 6 to 7.
It is clear from the evidence that an altercation occurred on 17 September 2017, (the September Incident’). However, the independent evidence leaves it unclear whether the incident was perpetrated by the Applicant or the Aggrieved’s brother (a point accepted by the Respondent)[76] and whether the Applicant was acting in self-defence. That same evidence is that the Applicant picked up a broom and walked towards the Aggrieved’s brother. He dropped the broom following the intervention of witnesses. Neither the Applicant nor the Aggrieved’s brother appears to have suffered any significant injury. Witnesses reported that they had exchanged punches, which the Applicant denied.[77] Whilst the Applicant’s wife and child were present and were no doubt impacted by what they witnessed, the evidence does not suggest that either of them were in any actual physical danger at the time.
[76] Ibid, pages 82, 86.
[77] Ibid, page 50, lines 11 to 21.
The September Incident led to the DVO which conditions, following the most recent extension, remain on foot until 06 November 2024. Regardless of who instigated the violence, once the DVO was made on 20 September 2017, the Applicant was bound by it, and obliged to comply with it, whether or not he made any relevant admissions at the time of the order. The independent evidence cited by the Respondent makes clear that he did not comply with and respect the order, even though his conduct in failing to comply did not result in criminal convictions. The Applicant gave evidence that the Aggrieved stayed over with him on ten occasions following the September Incident,[78] and he denied ever taking inappropriate videos or images of her.[79] He also denied making midnight visits to her house,[80] and maintained that his ex-wife had made things up about him,[81] and repeatedly made false allegations to police about him.[82] Notwithstanding this contention, he had made no application to the court to discharge the DVO, even though he and his ex-wife lived together for three months from March 2019, during the currency of the DVO.[83]
[78]    Ibid, page 26, line 17.
[79]    Ibid, page 29, lines 16 to 22.
[80]    Ibid, page 30, lines 1 to 16.
[81]    Ibid, page 30, lines 38 to 47; page 31, lines 1 to 18.
[82]    Ibid, page 31, lines 19 to 47.
[83]    Ibid, page 36, lines 40 to 41.
The episodes cited by the Respondent show a pattern of conduct – over a lengthy period – of almost routinely ignoring the obligations placed upon him by the DVO. Allegations against the Applicant made by the Aggrieved and recorded by police include: emotional abuse;[84] physical abuse such as slapping[85] and kicking;[86] conduct requiring repeated police attendances;[87] threatened blackmail;[88] enlisting the aid of community members to pressure her into withdrawing court proceedings against him;[89] multiple late night attendances at her home while the DVO was current;[90] unauthorised entry into her home,[91] threats to cause her social and familial embarrassment,[92] and obscene video communication.[93] The Applicant has taken her laptop and in the process caused bruising.[94] On another occasion he took her phone,[95] and on another threatened one of her male friends.[96] She has expressed fears as to his future conduct as recently as October 2019.
[84]    Exhibit 1, SM1, page 22
[85]    Ibid, page 20.
[86]    Ibid, page 25.
[87]    Ibid, page 25.
[88]    Ibid, pages 55; 59 to 60.
[89]    Ibid, pages 60 to 61.
[90]    Ibid, pages 57 to 58; 64; 98.
[91]    Ibid, page 64.
[92]    Ibid, pages 57 to 60.
[93]    Ibid.
[94]    Ibid, page 90.
[95]    Ibid, page 91.
[96]    Ibid.
The Tribunal notes that the DVO was most recently extended on 6 November 2019 whilst the Applicant was undertaking the Men’s Behavioural Change Program, which he appears to have undertaken on legal advice[97] and completed in August 2020. The Tribunal notes that the Applicant arranged to undertake this program around the time he took legal advice following receipt of NOICCA, on or about 13 July 2019. He denied having undertaken it to achieve a positive outcome in his citizenship application,[98] even though his response to the NOICCA was made a week after his enrolment in it.[99] Of great concern to the Tribunal is that the Applicant’s conduct lists incidents on 13 and 16 August 2019, and 04, 07, and 30 September 2019.[100] All of these occurred in rapid sequence very soon after the NOICCA was delivered to the Applicant and ultimately led to the DVO being extended until 6 November 2024. The NOICCA should have served as a very loud wake up call to the Applicant to moderate his behaviour, but clearly, it did not.
[97]    Transcript of Tribunal Proceedings (11 March 2021) pages 65 to 67.
[98]    Ibid.
[99]    Exhibit 1, T16, pages 231 to 232.
[100] Exhibit 1, SM1, page 64.
The Tribunal is required to consider whether there are any mitigating circumstances that outweigh the seriousness of the Applicant’s conduct. At the time of the September Incident, the Applicant was 34 years of age. He was clearly a mature adult, and his age is not considered to be a mitigating factor.
The Tribunal accepts that the Applicant has a stable work record, and appears to be generally well regarded by those with whom he otherwise associates. He has expressed remorse for his conduct, but had done so in the context of its consequences for his citizenship application. The Applicant has taken steps to learn new skills to deal with difficult behaviours and has foreshadowed further efforts in that regard. However, he did so in the context of the NOICCA. Less than twelve months have passed since the Applicant completed the Men’s Behavioural Change Program and the Tribunal notes that there does not appear to have been any instances of non-compliance with the DVO during the period since the decision to cancel the approval of the Applicant’s application for Australian citizenship. Whilst this is encouraging, it would be surprising if the Applicant was on anything less than his very best behaviour during the period that his application to this Tribunal was pending. His capacity to behave himself without the pressure of a pending application before the Tribunal is yet to be tested.
The Tribunal finds that the mitigating factors do not outweigh the seriousness of the Applicant’s conduct, viewed holistically.
The Tribunal is required, in making its decision, to consider the best interests of the Applicant’s child.
The Child is an Australian citizen (having acquired Australian citizenship in 2018 with his mother) and may continue to reside in, or travel to or out of Australia (subject to restrictions of general applicability). The Child will also have access to education, healthcare and social welfare in Australia and is protected by Australian laws and authorities. There is no evidence to suggest that the Child would be otherwise subjected to violence, abuse, neglect or maltreatment as a result of the cancellation of the approval of the Applicant’s citizenship application. The Applicant is currently a permanent resident of Australia and will continue to be so notwithstanding a decision to cancel the approval of his citizenship application. Accordingly, the Child would not be separated from either of his parents as a result of an adverse decision in respect of cancelling the approval of the Applicant’s citizenship application.
The Tribunal finds that the best interests of the Applicant’s child do not weigh against a decision to cancel the approval of the Applicant’s citizenship application.
CONSIDERATION
In Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326, Deputy President McDonald said at [7]:
…a decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
In Prasad v Minister for Immigration and Border Protection [2017] AATA 1506 at [32]:
Mr Prasad’s assault upon his wife weighs heavily against a finding that he is of good character. Domestic violence, in any form and in any circumstances, is fundamentally inconsistent with the standard of behaviour expected by the Australian community.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, Lee J at 431-432 defined ‘good character’ as follows:
… 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. …
In Karatunov and Minister for Immigration and Border Protection [2017] AATA 132, Senior Member Tavoularis stated at [24]:
At the hearing, much was sought to be made on behalf of the Applicant that this DVO was made without admissions pursuant to s 51(1)(c) of the Domestic and Family Violence Protection Act 2012 (Qld). The central tenet of this submission was that the making of the DVO without admissions constituted no finding of domestic violence by the court. I have difficulty in seriously entertaining such a submission. To do so, would render the DVO nonsensical and without legal foundation. The point is that a DVO was made upon certain allegations and circumstances presented to the Court that, in turn, duly convinced it to make that order. Whether or not the allegations and circumstances giving rise to the DVO were either vigorously contested or otherwise consented to by the Applicant (on whatever basis) is of no concern to the Tribunal for present purposes. The point is that the DVO was made.
Senior Member Tavoularis continued at [34]:
The Commonwealth government takes a very serious stance on domestic violence. Numerous and costly measures are currently being taken to address domestic violence in Australia. Further, in a media release issued in September 2015, Prime Minister Turnbull and a number of other government Ministers expressed the view that domestic and family violence has a devastating impact on the Australian community; that domestic, family or sexual violence is unacceptable in any circumstances, and that the issue must be elevated to our national consciousness [citation omitted]. I find this material a persuasive statement of the government’s view on domestic violence.
In Re Mendoza v Minister for Immigration and Border Protection [2018] AATA 686, Senior Member Puplick AM observed at [48]:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.
In Re Umer v Minister for Immigration and Border Protection [2018] AATA 1630, Senior Member Kirk stated at [54]:
The Tribunal adopts [the] approach … that there is a presumption that a person is not of good character in circumstances where the pplicant for citizenship has been convicted of a domestic violence offence, and that this presumption is only negated in the face of compelling evidence and persuasive reasons which support a contrary finding. This approach does not, as Senior Member Sosso noted, allow the Tribunal to automatically reach a conclusion that an applicant is not of good character purely on the basis of a conviction for domestic violence - it must consider and evaluate all the evidence presented.
[Tribunal insertions]
In Khan and Minister for Immigration and Border Protection [2018] AATA 3029, Senior Member Illingworth considered the operation of s 25(2)(b)(iii) of the Australian Citizenship Act 2007 at [22]-[23]:
… the Tribunal must be positively satisfied the Applicant is not of good character. This is subtly different to s 21(2) of the Act which requires the decision maker, and therefore the Tribunal, to be satisfied the person is of good character.
The term “not of good character” is not defined by the Act. The Citizenship Policy (“the Policy”) provides guidance to decision-makers in regards to interpretation, and exercise of powers under, the Act.
In Re VQLM and Minister for Home Affairs [2018] AATA 3540, Member C Edwardes stated at [42]:
… the fight against domestic violence in Australia, in the Tribunal’s opinion, goes to the core value of what is, and is not acceptable in the Australian society.
In simple terms, the very existence of an extant DVO raises a query that the Applicant is not of good character, which is confirmed by his pattern of routinely ignoring his obligations under it. A DVO, whether made with or without admissions or contest, is an order of a court of law, and demands compliance with its terms. A person of good character complies with a court order which binds them for the duration of the order. Rather than failing to comply with a DVO, a person of good character would apply to the court to vary the conditions of the order, or indeed its duration. No such application has been made by this Applicant. The Tribunal notes that the DVO was most recently varied by the court in November 2019 to have effect for a further five years from that date, a mere three months prior to the Minister’s decision to cancel the approval of the applicant’s application for citizenship.
While adverse to the Applicant, this decision will not preclude him from making a future application for Australian citizenship.
DECISION:
Considering the whole of the Applicant’s history and the evidence before the Tribunal, the Tribunal finds that the Applicant was not a person of good character at the time of the Minister’s decision to cancel his approval to become an Australian citizen or at the time of this decision.
Accordingly, the Reviewable Decision, dated 04 February 2020, must be affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

...................[SGD]...........................
Associate
Dated: 01 September 2021

Dates of hearing:

Date final submissions received:

11 March and 07 July 2021

11 March 2021

Representative for the Applicant:

Solicitors for the Respondent:

Mr Vikas Jain

Wickham Lawyers

Mr Alexander Zhang

Clayton Utz