Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 493
•12 March 2020
Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 493 (12 March 2020)
Division:GENERAL DIVISION
File Number: 2019/2553
Re:Mr Simranpreet Singh
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Ms Anna Burke AO, Member
Date:12 March 2020
Place:Melbourne
The Tribunal affirms the decision under review.
....[sgd]....................................................................
Ms Anna Burke AO, Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether the applicant is not of good character – whether the application for citizenship made by the applicant should be approved – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)Australian Citizenship Act 2007 (Cth)
Cases
Fenn v Minister for Immigration and Multicultural Affairs, Re [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Mana v Minister for Immigration and Border Protection (Citizenship), Re [2016] AATA 639
Zheng v Minister for Immigration and Citizenship, Re (2011) 55 AAR 94Safar and Minister for Immigration and Border Protection (Citizenship), Re [2015] AATA 503
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Ms Anna Burke AO, Member
12 March 2020
INTRODUCTION AND BACKGROUND
On 7 July 2006 Mr Singh arrived in Australia on a temporary Student (subclass 572) visa and on 24 August 2015 he was granted a permanent Skilled Independent (subclass 189) visa.
Mr Singh came to Australia to undertake training in the hospitality industry, which he successfully completed, and was subsequently granted temporary residency. Mr Singh in partnership then commenced a restaurant business which incorporated five restaurants. Mr Singh has subsequently divested of several of these restaurants and is currently running an Indian restaurant and transport business. Mr Singh is married, has two children and is involved in numerous community activities.
On 16 April 2014, Mr Singh was convicted in the Melbourne Country Court of three offences relating to an altercation he had with two individuals (the victims) on 16 September 2013 (discussed further below). Mr Singh was sentenced to a Community Corrections Order (CCO) for four years to perform 600 hours of unpaid community work.
On 21 April 2017 Mr Singh lodged an application for Australian citizenship by conferral.
On 29 April 2019 a delegate of the Minister refused Mr Singh’s application for citizenship under section 24 of the Australian Citizenship Act 2007 (the Act). In the decision the delegate states:
I have considered whether a reasonable amount of time has passed since you were free of an obligation to the court, in order to establish a pattern of good behaviour and thus justify the conclusion that a person is now good character. Your obligation to the court, in the form of Community Corrections Order ended on 15 April 2018. I am not satisfied that a reasonable amount of time has passed to establish a pattern of good behaviour and to conclude that you are now of good character. This weighs against you being of good character. I give this fact considerable weight in my assessment of whether you are of good character.
In summary, I find that you have been convicted of aggravated burglary, intentionally causing injury and attempting to prevent the course of public justice. Previously, your offences have promoted [sic] the Department to consider refusing you an Australian visa under section 501 of the Migration Act. My assessment of whether you are of good character under Citizen Act is a separate consideration. I acknowledge that you have shown remorse for the incident, and that you have engaged in rehabilitation and behavioural change through counselling and psychologist services. However, I give greater weight to the seriousness of your offences which prompted the Melbourne County Court to convict you and sentence you to a 4 year Community Correction order that ceased on 15 April 2018. In consideration of the seriousness of your offences, as only 9 months has passed since you were subject to this order, I am not satisfied that you are of good character.[1]
[1] T2 of the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), 15.
On 9 May 2019 Mr Singh applied to this Tribunal for review of the delegate’s decision. In the application he claims the decision is wrong for the following reasons:
The Department of Home Affairs refused my application on the basis that I did not meet character requirements. This is due to an incident I was involved in September 2013. It was one off incident and I have never been involved in any incident after that.
At the hearing, Mr Singh was represented by Mr Yadwinder Singh of Ausin Associates and Mr Keith Sypott, of the Australian Government Solicitor, appeared on behalf of the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. Mr Singh, Mr Craig Gaunson (psychologist), Mr Inder Singh and Mr Luke Thaniotis all gave evidence under oath at the hearing.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether the applicant is of good character.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen:
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act provides, in part:
(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.
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Section 25 of the Act, in part, provides:
(1)The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a)the person has not become an Australian citizen under section 28; and
(b)either of the following 2 situations apply.
Eligibility criteria not met
(2)The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b)the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii)not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii)not of good character.
The term “good character” is not defined by the Act. However, guidance is provided by the Department of Immigration and Border Protection Citizenship Policy issued by the Minister in 2016 (the Policy). The stated role of the Policy is to provide guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007.
Chapter 11 of the Policy deals with good character. Importantly, it is expressly stated at the outset that it is not departmental policy for decision-makers to be bound by a checklist.[2] Rather, decision-makers are to look at the “merits of each case and turn their minds to the issues of character until they are satisfied, on a reasoned basis, whether the applicant is, or is not, of good character”.[3]
[2] T4 of the T documents, 57.
[3] Ibid.
Reference is made to the definition of good character given by Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 (at 431–432):
the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers (ACT) (1994) 117 FLR 455 at 459-460 per Miles CJ; Plato Films Ltd v Speidel [1961] AC 1090 at 1128-1129 per Lord Radcliffe, Lord Denning at 1138. 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: see Re Davis (1947) 75 CLR 409 at 416 per Latham CJ; Clearihan at 461, per Miles CJ. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The Policy also refers to ReFenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, where Deputy President Breen discussed the role of the character requirement in a citizenship application (at para 8):
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 the 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 year’s time when he can demonstrate a longer period of positive contribution to the Australian community.
To assist decision-makers, the Policy contains a non-exhaustive list of the characteristics of good behaviour, which is set out below:
… an applicant of good character would:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
§providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
§involvement in bogus marriage
§concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
§involvement in Centrelink or Australian Tax Office fraud
§giving false names and/or addresses to police
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not to be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not be the subject of any extradition order or other international arrest warrant
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.[4]
[4] Ibid 60.
The Policy also provides guidance on weighing up the character decision. It points out that the assessment of whether an applicant is of good character requires the consideration of an aggregate of qualities. The Policy identifies that more weight is to be given to significant offences in the assessment.[5]
[5] Ibid 62.
The Policy further states:
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia’s community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
The Policy makes reference to Deputy President Forgie’s decision in ReZheng v Minister for Immigration and Citizenship (2011) 55 AAR 94 (at para 120), to demonstrate this point:
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.
EVIDENCE
The evidence before the Tribunal included documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and the “Supplementary T documents.” Mr Singh provided a witness statement and several character references.
The following summary of recorded offences against Mr Singh’s name has been derived from the National Police Certificate dated 8 April 2015:[6]
[6] T10 of the T Documents, 160.
Court
Date Nature of Offence Sentence Melbourne County Court
16 April 2014
Aggravated Burglary – Person Present
Intentionally Cause Injury (two charges)
Attempt to Pervert Course of Public Justice
Convicted Community Corrections Order for four years to perform 600 hours unpaid community work
Based on numerous police and prosecution documents the Tribunal has ascertained the following:
(a)On the evening of 16 September 2013, Mr Singh attended a birthday party dinner for a friend at an Indian restaurant in Ringwood. There were approximately 10 to 12 males of Indian descent at the dinner, many of them friends and several unknown to each other. During the course of the evening Mr Singh made a number of jokes and remarks at the expense of one of the victims, purportedly in respect of the Punjabi province the victims hailed from.
(b)Following the dinner when the men were outside the restaurant a verbal altercation took place between one of the victims and Mr Singh, where one of the victims punched Mr Singh causing him to fall down. The altercation was then broken up and the victims left returning home.
(c)Mr Singh returned to his home where he made numerous phone calls to friends organising them to accompany him to the victims’ address, ostensibly, he claimed, for the victims to apologise for the insult he had incurred at the front of the restaurant.
(d)Mr Singh and his flatmates then drove and met several other acquaintances before all seven males proceeded to the victims’ home, where they knocked on the door which was opened by the victims’ flatmate. Mr Singh and a co-offender then proceeded to the victims’ room and assaulted the victims by punching them several times. The seven males then left the scene shortly after.
(e)Mr Singh and five other males then arrived sometime later at a Hungary Jack’s restaurant where they discussed what had just occurred and devised a plan to cover up the incident. Mr Singh advised that he was going to call the police and report that he had been a victim of a crime at the hands of his victims, stating that the victims forced their way into his home and assaulted him. Subsequently, Mr Singh called triple-zero from his home address and reported an aggravated burglary to the police, a short time later uniformed police arrived at his home and took statements.
(f)Whilst this was occurring both victims were taken to Monash Medical Centre suffering bruising and laceration as a result of the attack.
On 13 March 2014 Mr Ian A Joblin, forensic psychologist, undertook a psychological assessment of Mr Singh relating to his plea of guilty before the Melbourne County Court. In his report he states:
Mr Singh acknowledged that there was some jocular banter between him and others regarding politics in India, the community, the country and some of its values. Importantly for Mr Singh this was simply banter and not serious discussion. On his report he did not mean to degrade or insult anyone.
When the guests had to leave, Mr Singh went outside the restaurant. At that time the victim... approached and hit him in the face. Mr Singh reported that this was totally unexpected he could think of little reason why that man would hit him unless his aggression related to some serious misinterpretation of the “banter” that had occurred earlier inside.
Mr Singh then went home with his friends. He made some telephone calls and with his friends determined they would visit the victim and others to find out why he had been hit.
Importantly Mr Singh reported that he did not take a weapon with him. Further he indicated that when he left his house, he did not plan to hit anyone. He simply wanted to know what the problem was and discuss the matter so it could be resolved.
Mr Singh reported that being hit outside the restaurant for him represented an act of considerable disrespect and shame. He felt he had, in fact, been shamed in front of not only his friends but also the owners of the Indian restaurant whom he knew. He believed, therefore, in order to overcome that shame he needed to discuss issues so that the matters could be clarified.
Mr Singh acknowledged that they went into the house. He acknowledged that he hit the victim but denied that he hit anyone else. He did not learn why he had been hit.
I note in the summary there is reference to a “knuckle duster”. Mr Singh totally denied that he had a knuckle duster. He reported that the police searched his car and his home and no such weapon was found.
I note that as they were driving away from the house where the offences were committed, they stopped and discussed what then became a serious error of judgment – concocting the story of an aggravated burglary and telling it to the police. Mr Singh acknowledged that that was seriously inappropriate.
…
There is no doubt Mr Singh is extremely remorseful over the offences. He acknowledged that this incident has caused a serious disruption in his life. He reported that he came to Australia with the ambition of developing successful businesses and believes he has achieved that to a degree. He reported that he had no previous attention from the police. On his report he has no history of aggression or violence. He described himself basically as “peaceful”.
…
Mr Singh is extremely contrite about this incident, much of which he attributes to his state of intoxication. In that regard he has made changes to his life style including markedly reducing his use of alcohol. He has attended an anger management course, not because he believes he has ongoing issues with anger but rather because he wants to ensure that no such problems exist.[7]
[7] T11 of the T documents, 187–188.
On 17 March 2014 Mr Craig Gaunson, psychological counsellor, completed a report in respect of Mr Singh’s completion of an anger management course. In his report he states:
Simranpreet is a hard working, highly motivated, and likeable character. He is a positive person and an excellent citizen, who is known to help those who are having trouble finding work or need a place to stay. He was very enthusiastic throughout the Anger Management course and learnt a great deal. I don’t believe, however, that he has any anger management problems whatsoever.[8]
[8] T8 of the T documents, 115.
On 24 March 2014 Ms Lee Wilkinson, psychologist, completed a report into Mr Singh’s recent treatment for mixed anxiety and depression. In her report she states:
Mr Singh stated that he felt terrible for what had happened and felt that he was being punished. He stated he was continually upset and teary, was not eating, he was unable to sleep and was having difficulty managing his businesses due to his negative thoughts and poor concentration. He had recurring worries about his future and was disappointed that he made a bad decision that could ruin all his hard work.[9]
[9] Ibid 143.
On 16 April 2014 Mr Singh, following his guilty plea, was convicted in the County Court of Victoria of the charges summarised above at para 21; and placed on a CCO for a period of four years. His Honour Judge Stewart in his sentencing remarks stated:
This offending is serious. Both in relation to the aggravated burglary, and in relation to three of you, the attempt to pervert the course of justice. I am satisfied beyond reasonable doubt that you, Simranpreet Singh, instigated both of the commission of the offences of aggravated burglary and attempt to prevent the course of justice. Without you, none of this would have occurred.[10]
[10] T31 of the T Documents, 390.
Mr Stanley Long, Mr Singh’s field officer for his CCO, provided an undated reference for Mr Singh in his court application to alter his CCO to lift travel bans (which the court granted to Mr Singh). Mr Long stated the following:
I have worked with the DOJ for the past three years as a Field officer in the eastern region, on a daily basis I see men who have done many unjust things in their lives and are truly sorry for their actions, Mr Singh is a good man who has made a mistake in his life an[d] has done everything the Department of Justice has asked of him.
Not once have I ever seen a man so determine to fix up his mistakes and move forward in life
Mr Singh did a fine job on my corrections team. He showed up on time, worked the jobs all[o]cate[d] to him without complaint, a real role model for anyone. His out look on life is very positive and strong. Mr Singh in my opinion deserve[s] the right to travel home to India to see his family and fulfil his plans for the future.
I support any an[d] all outcomes of this matter, and i pray that This letter will support Sammy as he is a fine young man with a bright future ahead of him.[11]
[11] T35 of the T Documents, 424.
Numerous other references from Mr Singh’s friends, colleagues and family members were supplied by Mr Singh, all attesting that they find him to be honest, generous and a likeable character of the highest integrity who is extremely dedicated towards his responsibilities. All the references indicate they were aware of his offending and were surprised by his actions, describing them as totally out of character.
Mr Singh advised the Tribunal that he had had six to seven glasses of Scotch whiskey on the evening of the offending and that there had been much banter during the dinner, particularly in respect of the area of Punjab which the victims came from and relating to Indian political leaders. Mr Singh gave evidence to the Tribunal that he felt completely disrespected after he was punched by one of the victims. Mr Singh advised the Tribunal he had never been hit in his life and was totally taken aback by the situation. Adding that he had never meant to hurt anyone but had simply gone around to the victims’ house to discuss what happened and things had gotten out of hand.
Mr Singh advised the Tribunal that he acknowledged that he had done everything wrong, he should never have gone to the house, and he should never have lied to the police. Mr Singh stated he should not have cheated the system by trying to blame others, and that he was remorseful for these actions and had pleaded guilty at his committal, accepting that he had committed the offences and he was guilty.
Mr Singh proudly told the Tribunal he had completed his 600 hours of community work in record time and had sought permission to alter his CCO so that he could travel (which was granted). That since the incident he has led a quiet life concentrating on his businesses, attending a Sikh temple, marrying and having two children. That he does not drink except perhaps a glass of wine over dinner and has sought assistance to control his anger, having been given advice about deep breathing and thinking before he acts.
Mr Gauson advised the Tribunal that Mr Singh had attended his services in 2014 to undergo an anger management course but in his opinion Mr Singh was not an angry person, describing him as a calm and decent man. Mr Singh has subsequently attended his services and, whilst he would not call Mr Singh a friend, they exchange greetings at Christmas time. That whilst he was not aware in great detail of Mr Singh’s offending he believed Mr Singh was a good person and Australia would be a better place if he became a citizen.
Mr Inder Singh, friend and accountant, advised the Tribunal that Mr Singh saw him as an older brother although they are not related; they had known each other for 14 years and Mr Singh often sought his counsel. He recalled that Mr Singh called him after the incident and he described Mr Singh as being terrified, shaken, shameful and full of regret. He advised the Tribunal that he was shocked to hear Mr Singh had been involved in such offending as he was a calm, reserved person whom he described as very quiet. Whilst he was not aware of the incident in great detail, he did not believe that Mr Singh would ever be involved in such an incident again as he was the last person who would break the law.
Mr Luke Thaniotis, Mr Singh’s accountant, advised the Tribunal he had known Mr Singh in a professional capacity for 10 years and that he was more than happy to provide a reference for Mr Singh, although he would not describe himself as a friend. He explained that he had also been happy to provide Mr Singh with a character reference at his original court hearing into the incident. He described Mr Singh as a model taxpayer and that dealing with him had always been pleasant and he had never had any difficulties with him.
CONSIDERATION
Mr Singh’s representative contended that Mr Singh had demonstrated enduring moral qualities over a long period of time, was able to distinguish right from wrong and behaved in an ethical manner conforming to the rules and values of Australian society. He argued Mr Singh had demonstrated this by living for more than 13 years in Australia and apart from this one-off incident had never been involved in any unlawful activity. He also stated that Mr Singh had been a peaceful, productive member of the community and that the Tribunal should take this into consideration.
Mr Singh’s representative contended that the one-off incident was totally out of character, committed whilst Mr Singh was under the influence of alcohol, during a tumultuous period in his life (as he was going through an acrimonious divorce) and was not an intentional act.
Mr Singh’s representative took the Tribunal to the sentencing remarks of His Honour Judge Stuart where he stated:
Each of you have no criminal history whatsoever, let alone a history of violence. None of you have any other matters pending before the courts. Each of you are genuinely remorseful for your conduct. Each of you have pleaded guilty in the circumstances which I have articulated. Each of you, on coming to Australia in your twenties, in order to further your education, better yourselves and support your families in India, have studied and worked hard. All of you have a strong work ethic and employment. All of you have connected well with the broader community.
In relation to each of you, I find that the prospects of rehabilitation are excellent. The sentence that I must impose must be one which deters others from engaging in this sort of conduct. As well, I must take into account such need to deter you from further offending. In that regard, because of my assessment in relation to each of you, that factor has little weight in my sentencing disposition. As I apprehend, in relation to all of you, you have learnt a stern lesson from these proceedings, and each has reflected appropriately on your behaviour that night.
Alcohol has played a part in these events. As has the provocative behaviour of at least one of the victims outside the restaurant. Whilst those matters do not excuse your behaviour, it does give explanation to it and an explanation which I am satisfied, given your genuine remorse, will mean that none of you as I apprehend it, will ever re-offend again.[12]
[12] T31 of the T documents, 932–933.
Mr Singh’s representative strongly argued that Mr Singh was remorseful for his actions, had demonstrated his understanding of the seriousness of his actions by completing his CCO in record time as noted above. That he had been granted a permanent residency visa regardless of his offending, and was a hard-working productive member of the community who donated and supported numerous charities. That his references all attested that he was an outstanding member of the community, considered by all to be of good character and one who should not be denied the ability to become an Australian citizen.
The representative of the respondent, Mr Sypott, contended that Mr Singh was not of good character as he had committed acts of serious violence, disregarding the physical safety and well-being of other persons in the Australian community. His actions of travelling to the victims’ home accompanied by a group of co-offenders, entering and inflicting serious violence on the victims demonstrates that this was a premeditated attack, that was objectively serious.
Mr Sypott stressed to the Tribunal that this serious act of violence was compounded by Mr Singh’s blatant disregard for the law, evidenced in his falsifying statements to the police in an attempt to cover his own offending. The plan to make a false police report had been concocted by Mr Singh and he continued to maintain this fictitious account in his police interview even though he was presented by police with the victim statements and the statement of his co-accused.
Mr Sypott contended that Mr Singh has sought to minimise the nature of his offending and this was demonstrated through his numerous statements in psychological reports and during the hearing, where Mr Singh stated that he had only gone to the victims’ home to talk to clarify the matters, so he could overcome his shame of being hit out the front of the resturant. Mr Sypott indicated that Mr Singh had never accepted the seriousness of the incident or his actions in organising a “gang” to attend at the victims’ home and then to concoct the story to pervert the course of justice.
Mr Sypott accepted that Mr Singh had undertaken an anger management course and counselling, made charitable donations, was involved in community service and was running his own successful businesses. Mr Sypott argued that the Tribunal should see such matters to Mr Singh’s credit, however having regard to the seriousness of his offending and his obligations to the County Court, which had only ceased in April 2018 (less than two years prior), simply, an insufficient amount of time had passed for Mr Singh to be found of good character.
Mr Singh’s representative strongly refuted that Mr Singh was not of good character; he had accepted his involvement and the seriousness of his offence and was genuinely remorseful for his actions. He contended that Mr Singh’s offending should be characterised as a group of common friends trying to intervene in an argument and not as a gang coming together in a premeditated act of retribution.
Mr Singh’s representative argued Mr Singh had been in Australia since 2006, was a hard-working businessman making a significant, peaceful contribution to the community, and that he has demonstrated good moral values — respecting the Australian way of life and its laws. That fundamentally the Department had failed to give relevance to these when they had refused Mr Singh’s application for citizenship by conferral.
CONCLUSION
The Tribunal considered the issue of Mr Singh’s good character in light of the Policy guideline, as the Act is silent on the definition of good character. The Tribunal finds that Mr Singh would not be considered of good character given the objective seriousness of his action. As indicated by the sentencing remarks of His Honour Judge Stewart:
People are entitled to be in their own homes and not have men coming in and assaulting them, in their own bedroom, whatever the slight might have been, whatever the provocation might have been earlier. It provides no excuse, but of course some explanation as to why these events unfolded as they did.
In the ordinary course of events, each of you would find yourself sentenced to a period of imprisonment.[13]
[13] T31 of the T documents, 392.
The Australian community expects that people will be given a chance to redeem themselves and whilst Mr Singh has completed an anger management course, his 600 hours of unpaid community work (in record time) and his CCO, it appeared to the Tribunal that he still did not appreciate the seriousness of his offending, and the impact of his actions on his victims or the community.
The Tribunal considers that not enough time has lapsed since Mr Singh’s offending to demonstrate the ‘enduring moral qualities’ over a period of time contemplated in the Policy,[14] especially in light of his continued minimisation of the seriousness of his conduct.
[14] T4 of the T documents, 63.
Mr Singh’s representative contented he had demonstrated years of good behaviour since his arrival in Australia and his completion of his obligations to the court. Mr Sypott contended that Mr Singh had only demonstrated over two years of good behaviour as his obligation to the court ended in April 2018. The Tribunal was referred to Re Mana and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 639 (at [55]–[57]) which stated that:
However, the guidelines implicitly, and properly, reject the notion that "intrinsic character" is fixed in time. The question to be determined is whether the person has satisfied the Minister of their "good character" at the time of the relevant decision - (in the present circumstances the date of this Tribunal's decision): see [the Act] s 21(2)(h) & Dandan and Minister for Immigration and Citizenship [2010] AATA 539 at [3]-[10]. Consequently the length of time that has passed since the last instance of an applicant's impugned conduct is, as the delegate's reasoning in the June 2015 refusal decision indicated, a relevant consideration. I remarked earlier on the suggestion in the guidelines that good character involves characteristics that "have been demonstrated over a very long period of time".
…
The guidelines suggest that in most cases the required period "will go back prior to any visa application": Australian Citizenship Instructions Chapter 10.5.4; Citizenship Policy Chapter 11, page 150. This suggestion appears to allude to the various "residence" requirements in [the Act] ss 22 - 22B. The typical "general residence requirement" is a period of 4 years.
…
Finally, although a finding of satisfaction about character is ultimately the result of an impressionistic evaluation of a range of considerations, it is not a matter of merely subjective preference in the weighing of those considerations. This point is inherent in the guidelines' emphasis on the applicant's lawful conduct, and the obligations of citizenship. But the guidelines attempt to add some degree of emphasis exhorting the citizenship decision maker to apply "community standards" rather than "their own personal standards". Both the Australian Citizenship Instructions (at Chapter ¶10.5.4) and the Citizenship Policy (at Chapter 11, page 149) suggest that in applying this instruction decision makers should be enquiring (i) whether a person of good character would have engaged in the applicant's conduct, (ii) about the extent of the applicant's lawful conduct, (iii) about the extent of the applicant's compliance with Australian community standards, and (iv) about the extent that the applicant shares and respects Australian democratic beliefs.
The Tribunal finds that, in light of the nature and seriousness of the offending, insufficient time has passed since Mr Singh’s offending took place to consider him of good character.
The Tribunal is aware that this decision will cause considerable distress to Mr Singh but notes the decision should not be read as implying that Mr Singh is a bad person. The Tribunal notes that it is open to Mr Singh to reapply for citizenship in the future and refers to ReFenn v Minister for Immigration and Ethnic Affairs [2000] AATA 931, where Deputy President Breen stated (at para 8):
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 year’s time when he can demonstrate a longer period of positive contribution to the Australian community.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member.
.....[sgd]..............................................
Associate
Dated: 12 March 2020
Date of hearing: 6 February 2020 Migration Agent for Applicant: Mr Yadwinder Singh of Ausin Associates
Advocate for the Respondent: Mr Keith Sypott Solicitors for the Respondent: Australian Government Solicitor
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