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

[2020] AATA 3091

Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3091 (21 August 2020)

Division:GENERAL DIVISION

File Number:2019/1836          

Re:Manjinder Singh  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R West

Date:21 August 2020

Place:Melbourne

The Tribunal sets aside the decision of the delegate of the Respondent made on 8 March 2019 to refuse the Applicant’s application for citizenship and remits the matter to the Respondent for reconsideration in accordance with the direction that the Applicant satisfies the requirement of s 21(2)(h) of the Citizenship Act 2007 that he be of good character.

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

Member           

Catchwords

CITIZENSHIP – application for citizenship by conferral refused – conviction for aggravated assault – good character test per s 21(2)(h) – decision under review set aside and remitted to the Respondent.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Citizenship Act 2007 (Cth)

Sentencing Act 1995 (NT)

Cases

Shi v Migration Agents Registration Authority [2008] HCA 31
Zheng v Minister for Immigration and Citizenship, Re [2011] AATA 304
Anderson and Minister for Home Affairs (Citizenship), Re [2019] AATA 229
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) FCA 663
Fenn v Minister for Immigration and Multicultural Affairs, Re [2000] AATA 931

Secondary materials

Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, ‘Introduction’, ‘Chapter 11’

REASONS FOR DECISION

Member R West

21 August 2020

1. This matter concerns an application for review of a decision of a delegate of the Respondent made on 8 March 2019 to refuse the Applicant’s application for citizenship by conferral under s 24 of the Citizenship Act 2007 (Act).

   BACKGROUND

2. The Applicant was born in India in 1981 and arrived in Australia on 20 November 2007.  He was granted a Permanent (Class VB) (Subclass 885) visa in January 2014. 

3. On 23 April 2017, the Applicant applied for Australian citizenship by conferral for himself and his son pursuant to s 21 of the Act.

4. On 8 March 2019, a delegate of the Respondent rejected the Applicant’s application on the grounds that the Applicant did not meet the test of good character in s 21(2)(h) of the Act because he had been convicted of a significant offence.

5. The Applicant applied for a review of the decision by the Tribunal on 2 April 2019.

6. A hearing in relation to the application for review was held on 25 June 2020.  The Applicant was represented by Mr David Dudderidge, a solicitor.  The Respondent was represented by Ms Inshani Ward, a solicitor. 

7. The hearing was conducted in the context of restrictions placed on the community in response to the COVID-19 pandemic. These restrictions necessitated that the hearing not be conducted in person. The parties were offered the option of a hearing by audio/visual link or for the hearing to be delayed until such time as restrictions were lifted. The Applicant and the Respondent each consented to the hearing proceeding on 25 June 2020 on the basis that it was conducted by audio/visual link.

   EVIDENCE

8. In conducting the review, the Tribunal has had regard to:

   (a)the documents produced by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T Documents and Supplementary T Documents); and

   (b)the oral evidence of:

   (i)the Applicant;

   (ii)Mr Gurmeet Singh;

   (iii)Mr Satinder pal Singh;

   (iv)Mr Amanpreet Singh; and

   (v)Dr John Jakupi, a clinical psychologist.

   ISSUES

9. The issue to be determined in these proceedings is whether the Tribunal is satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.  The assessment is to be made at the time of the Tribunal’s hearing on the basis of the evidence before it, and the Tribunal is required to be satisfied on the balance of probabilities.[1] 

   [1] Shi v Migration Agents Registration Authority [2008] HCA 31; Zheng v Minister for Immigration and Citizenship, Re [2011] AATA 304 at [25].

10. The Act does not define good character.  The Citizenship Policy[2] (Policy) provides guidance as to the meaning of the term, but the Tribunal is not bound by the Policy.[3]  An oft quoted definition of the term was set out in the judgement of Justice Lee in Irving v Minister for Immigration, Local Government and Ethnic Affairs,[4] where His Honour stated:

    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 proven as a fact whilst the latter is a review of subjective public opinion.

    [2] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11, 144-156.

    [3] Anderson and Minister for Home Affairs (Citizenship), Re [2019] AATA 229 at [52].

    [4] (1996) FCA 1660 at [19].

11. The Policy attributes to a person of good character that they be truthful and not practice deception or fraud in their dealings with government and other organisations.  The Policy also indicates that a decision maker should consider the persons conduct over a lasting and enduring period of time and weigh up considerations, including evidence that the person has upheld and obeyed the law, whether they have behaved in accordance with community standards and whether they share Australia’s democratic beliefs and respect for rights and liberties.[5]

    [5] Citizenship Policy, 149-50.

12. The principal evidence upon which the Respondent relies to assert that the Applicant is not of good character is the Applicant’s conviction for unlawful assault in the Northern Territory Court of Summary Jurisdiction in Darwin in April 2012.  The Respondent asserts that the Applicant’s conduct in committing the crime, his ‘not guilty’ plea and his subsequent representations regarding the offence, all indicate that he is not of good character.

    The Offence

13. The circumstances giving rise to the Applicant’s offending on 27 August 2011 are set out in the transcript of the Court hearing in April 2012[6] where the Magistrate made the following findings:

    [6] Supplementary T documents (ST), ST1, 16-18.

    [The victim](?) went to town with her partner and two other friends, she’d only consumed one drink and there was no suggestion she was intoxicated by alcohol or any other substance. She had an argument with her partner and decided to go home by herself. When she caught a taxi Mr [B] asked to share her taxi and she agreed.

    The taxi was driven by Mr Singh. When they arrived at Mr [B]’s place in Larrakeyah [the victim] ended up kissing Mr [B]. She then left in the taxi going back to her place. Mr [B] corroborates [the victim]’s story that they had never actually spoken to each other before that night even though he knew her older sister.

    Both Mr [B] and [the victim] gave evidence that Mr Singh got impatient and drove off when Mr [B] wasn’t quite outside of the vehicle. [The victim] says that - then says after going to the BP Service Station in Fannie Bay to buy a lighter she questioned Mr Singh about the fare, which she said - thought - she thought was getting high and that Mr Singh turned off the meter at about $34.

    She says that they arrived at her place in Nightcliff and after she had paid him, Mr Singh asked her for a kiss. She says she didn't know how to react indicate agreed - indicating that maybe on the cheek, it was then that Mr Singh grabbed her by - with both hands and kissed her on the mouth. When she didn't respond he demanded that she had to do it too and tried to kiss her again whilst forcing his tongue into her mouth.

    Mr Singh gave evidence that she - that when they were travelling on Dick Ward Drive [the victim] told him that she had only - had $34 and that he - and he said that he would only take her as far as the $34 would take her. She paid - he says she paid him before they stopped and after that she offered him to kiss her. She says that he consented - she - sorry - he says that she consented and he thought that any consent to a kiss meant he could kiss her on the mouth.

    To find Mr Singh guilty of this charge of aggravated assault, I have to be satisfied beyond reasonable doubt that there was no consent given by [the victim] to kiss on the mouth, and that he - her actions did not convey possible consent to a kiss on the mouth.

    The only independent evidence I have is of the footage from the taxi, the CCTV footage from the taxi. I have viewed that footage again in Chambers and I find it corroborates the evidence of Mr [B] and [the victim] that at his place he was at one stage half in the vehicle in the front with [the victim] before the taxi moved off again.

    It also shows Mr [B] handing some money to the front of the car, possibly to [the victim], when the car had stopped. The footage then shows Mr Singh and [the victim] having a conversation on the way to Nightcliff having stopped at the service station. Mr Singh - it shows Mr Singh turning off the meter before leaning over to hold [the victim] with both arms to kiss her on the mouth.

    The footage does not show [the victim]’s hands pushing Mr Singh away, as she gave - as evidence - as she gave evidence, however those hands could in fact be in between the two of them. For most part of the kiss Mr Singh and [the victim] the footage shows that Mr Singh leaning right over to [the victim] and the back of his head and his hands holding her head in place.

    Much of the footage after the (inaudible) just shows the tops of both Mr Singh’s head and [the victim]’s head. None of the footage shows how she reacted to the kiss. It is clear, however, he continues to be close to her face for a little while longer.

    The defence counsel submit that I should reject [the victim]’s evidence entirely as she could only remember parts of what happened and could not remember what was said between the two of her and Mr Singh. She could only say that she might have given Mr Singh a false number if he’d asked for it and didn’t report the incident to the police until she was in the company of her flat mates.

    He also says that her actions were not the actions of somebody who had just been indecently assaulted in that she had a further conversation with Mr Singh. I find I cannot reject her evidence on that basis. She was a young woman in a highly emotional state. She had just had an argument with her partner. She had just kissed a person she’d never met before and on her evidence she had just been subject to the unwanted advances of the taxi driver.

    It is entirely believable that she does not remember every detail, as it is entirely believable she only chose - and it is entirely believable she only chose to report the incident to the police after thinking about it. It is often the case where young women are involved in this sort of incident - incidents and not even reported at all.

    Her evidence that she gave Mr Singh a false number is also entirely believable given the situation that she found herself in. Her evidence that she rang Mr [B] that evening immediately after it happened is corroborated by Mr [B] and even if the detail of what she said to Mr [B] - what Mr [B] recalls she said to him is not consistent with what she has said today in her evidence. That is not a reason to disbelieve her. Mr [B] could be mistaken about what she actually said.

    The evidence (inaudible) evidence however that Mr [B] that Ms Singh (sic) had been assaulted by the taxi driver and that he was going to assist her in finding out who that driver was.

    Mr Singh’s evidence I - even though I cannot reject [the victim]’s evidence, l also have to reject Mr Singh’s evidence to find him guilty. It’s my view Mr Singh cannot be believed. The CCTV footage shows him to leaning over to kiss [the victim] on the mouth just after he’s turned the meter off and stopped the vehicle.

    His oral evidence is that she offered him a kiss on the cheek, which is consistent with her evidence to the extent that the - even to the extent the gesture that she made. His statement was that she was happy for him to kiss her on the mouth and that is not supported by the footage that shows him having her in a tight hold and his hand pushing her face around.

    He was at pains to say that he never did anything which he was not allowed to do in the taxi because he knew the camera was there, and yet he says he allows [the victim] to smoke, which is clearly against regulations, he also says he should not turn the meter off unless the journey is finished, yet his evidence was that he did so at [the victim]’s request.

    He stated he observed Mr [B] - sorry - [the victim] to kiss Ms [B] and when she offered a kiss he thought it meant on the mouth. However, I cannot accept that evidence given his evidence of the gesture he showed in the witness box where she indicated on her cheek.

    I reject the evidence of the defendant and I accept the evidence of [the victim] as corroborated by the CCTV footage and he will be found guilty of the charge.

14. It is not appropriate for this Tribunal to attempt to reassess the findings of the Court. 
    The Tribunal adopts the Court’s findings as findings of fact in relation to the circumstances giving rise to the offence in this review.

    What does this offence say about the Applicant’s character?

15. First, the offence involved a serious infringement of the victim’s personal integrity.  It was conduct of a sexual nature and it was committed in circumstances where the victim was vulnerable.  To use the language of the Policy, it was unlawful conduct clearly contrary to community standards and demonstrated a lack of respect for the victim’s rights and liberties.  The Court rejected the Applicant’s defence that he was mistaken regarding the extent of the consent given to him by the victim.  The conduct is to be regarded as intentional conduct.  The Applicant’s conduct in this incident was not the conduct society would expect of a person of good character.

16. In addition, the Court’s findings establish that the Applicant was untruthful in giving his evidence.  The Court rejected his evidence that the victim was happy for him to kiss her on the mouth and found that the Applicant was not truthful in saying that he never did anything which he was not allowed to do in the taxi because he knew the camera was there.  
    The Policy highlights that a person of good character is truthful and does not practice deception in relation to their dealings with government.  The Applicant’s untruthful evidence to the Court is also reflective of a person who is not of good character.

    What should be the significance of the Applicant’s ‘not guilty’ plea?

17. The Respondent argued that the Applicant showed that he was not of good character by not pleading guilty to the offence and forcing the victim to give evidence and undergo cross examination.  The Tribunal does not accept this submission.  First, it is the right of all citizens to defend themselves in court and the Tribunal does not lightly draw an inference about the Applicant’s character solely because he chose to exercise that right.  Secondly, the Tribunal is satisfied that the Applicant had a legitimate reason for contesting the charge.  The offence with which the Applicant was charged involved a mandatory prison sentence[7] and the nature of the offence raised two legitimate defences, one of consent and the other of mistake. 
    The Applicant was represented by counsel and no doubt influenced by his advice. 
    

    [7] Sentencing Act 1995 (NT), s 78DE.

    Finally, the Tribunal does not take a negative view of the Applicant’s character by reason that his not guilty plea required the victim to give evidence.  Clearly the Applicant ought to have expected that the victim would experience inconvenience, embarrassment and some distress by having to give evidence.  However, given the nature of the offence, it is not reasonable to assume that he was willing to expose her to a traumatic experience by doing so, as might be the case in more serious assault cases.  There is no indication in the Court’s decision that the victim was unduly distressed by having to give evidence.

    Has the Applicant shown remorse?

18. The Respondent also asserted that the Applicant showed an ongoing lack of remorse for his actions as evidenced by his ‘not guilty’ plea and that this reflects on his character. 
    

    [8] T10.

    [9] Each of the witnesses confirmed that they were not related to the Applicant, notwithstanding their common names.

    The Tribunal is not satisfied that the Applicant has demonstrated a lack of remorse.  In his evidence to the Tribunal the Applicant said that he felt terrible about the incident, that it was a big mistake and that he feels really sorry for the victim.  He acknowledged in cross-examination that he accepts that the victim did not consent to him kissing her on the mouth.  In his statutory declaration of 19 September 2018,[8] he stated that he took full responsibility for his actions and was ashamed for what he had done.  Gurmeet Singh, Satinder Singh, and Amanpreet Singh[9] each stated in their oral evidence that the Applicant was remorseful for what he had done.

    Did the Applicant misrepresent his offending?

19. The Respondent identified two examples where it says the Applicant has sought to misrepresent aspects of his conviction to downplay its significance.  In a statutory declaration dated 19 September 2018,[10] lodged with the Respondent in support of his application, the Applicant stated, in relation to his offence, that he took full responsibility for his actions and pleaded guilty to the court.  A report by Dr Jakupi,[11] the Applicant’s psychologist, states that the Applicant told him that charges were laid against him and on the advice of his lawyers he accepted the charge of aggravated assault and pleaded guilty.  When questioned about this during his oral evidence, Dr Jakupi said that he thought the Applicant was uncomfortable about the description of the charge as aggravated assault and while prepared to plead to a lesser charge accepted the advice of his lawyers that he could not.  He thought that the Applicant may have misunderstood the situation.  In his own evidence, the Applicant said he did not appreciate the difference between pleading guilty and being found guilty when he swore his statutory declaration.  He attributed the incorrect information in Dr Jakupi’s report to language issues and said that the misstatement was unintended.

    [10] T10, 93.

    [11] ST3, 3.

20. The Tribunal is not persuaded that the Applicant intentionally misrepresented to the Respondent and Dr Jakupi that he had pleaded guilty to the offence in order to diminish his responsibility or to otherwise gain some advantage for himself.  Any misstatement must be seen in the context that the Applicant was candid in disclosing the substance of the offence itself.  Dr Jakupi’s report recounts in substance the nature of the Applicant’s offence and the statutory declaration includes the full details of the charge and the penalty imposed by the Court.  It states in full:

    On the 27th August 2011 at Darwin in the Northern Territory of Australia, I unlawfully assaulted a female passenger in my Taxi after an argument on a taxi fare.

    On 10th April 2012 I was dealt with by the Darwin Court of Summary Jurisdiction for the Aggravated Assault Charges.

    Darwin Court of Summary Jurisdiction found me guilty and announced imprisonment for 21 days which was fully suspended on a good behaviour for 6 months and a payment of $1,065.00

21. On balance the Tribunal is not satisfied that the two instances identified by the Respondent where the Applicant had said he pleaded guilty give any indication that the Applicant is not of good character.

    Other Considerations

1. Aggravated assault is illegal, immoral and antisocial.  If the Applicant were to be judged solely on the basis of the incident giving rise to his conviction the Tribunal has little doubt that he would be found not to be of good character.  However, a person’s character must be assessed in a broader context than just a single incident and consideration must be given to the person’s conduct over a lasting and enduring period of time.  People are imperfect beings.  Persons of general good character are capable of wrongful behaviour.  The criterion for the granting of Australian citizenship is not perfection, but rather citizenship is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country.[12]

   [12] Fenn v Minister for Immigration and Multicultural Affairs, Re [2000] AATA 931.

2. The first consideration in assessing the Applicant’s character is to consider the nature and seriousness of the offence itself in order to weigh it properly in the context of other factors.  As previously discussed, the offence was intentional and a serious infringement of the rights of the victim.  However, the Court accepted that it did not warrant actual time in prison notwithstanding the mandatory sentencing provisions that applied.  The Honourable Magistrate said in passing sentence:

   I also have to consider the seriousness of the offence. Now, in some ways the legislation has taken that out of my hands. Section 78BB requires a term of imprisonment, and that is to send a message to say that it is serious offending. I accept, however, that it is not the most serious sort of offending that we have seen in this court of this nature.

   The sentence imposed was a term of imprisonment of 21 days that will be suspended upon the rising of this court.

3. The offence was an aggravated

   assault which by its nature is a violation of the integrity of another person, and so the relative seriousness recognised by the Court must be set against the antisocial nature of the offence itself.  It was, however, an isolated offence. 

   
   

   The Applicant had no prior convictions at the time of the offence and has a clean record since.  The offence does not reflect any pattern of criminal conduct.

4. It is now nine years since the offence for which the Applicant was convicted.  The evidence disclosed that since the incident the Applicant has been a responsible member of society.  He left Darwin in 2014 and moved to Melbourne.  He has established a landscaping business in partnership with another person.  He is married and has a son.  He is active in the Sikh community in Melbourne and attends a Sikh temple regularly where he assists with cleaning and food preparation.  He has been involved in charitable works including donating groceries for bushfire victims, donating to Plan International Australia, and being a blood donor.[13]  He has been favourably assessed by a clinical psychologist as not exhibiting any thought content, behaviour or characteristic which would be of concern.[14]  The witnesses called by the Applicant each attested to his good character.  These factors all point to the Applicant being of good character. 

   [13] ST2.

   [14] ST3, 3.

   CONCLUSION

5. Having regard to the evidence as a whole and the various factors set out in the Policy, the Tribunal is satisfied that the Applicant is of good character and that he satisfies the criteria stated in s 21(2)(h) of the Act.

6. In the Applicant’s submissions a decision was sought that the decision under review be set aside and the Tribunal make its own decision to grant the Applicant citizenship. 

   
   

   The Tribunal has considered this submission but notes that the jurisdiction of the Tribunal in these proceedings is confined to the question under s 21(2)(h) of the Act and the Notice of Refusal issued by the Respondent[15] indicates that the Respondent has not considered all of the criteria for citizenship under s 21(2) of the Act.  Accordingly, the Tribunal is not empowered to finally determine the application for citizenship.  The Tribunal will therefore set aside the decision under review and remit the matter to the Respondent for further consideration.

   [15] T2, 8-16.

   DECISION

7. The decision of the delegate of the Respondent made on 8 March 2019 to refuse the Applicant’s application for citizenship is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the direction that the Applicant satisfies the requirement of s 21(2)(h) of the Act that he be of good character.

I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 21 August 2020

Dates of hearing:	25 June 2020
Advocate for the Applicant:	Mr D Dudderidge
Solicitors for the Applicant:	Nevile & Co.
Advocate for the Respondent:	Ms I Ward
Solicitors for the Respondent:	Sparke Helmore Lawyers