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

[2020] AATA 2322

SXCB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2322 (17 July 2020)

Division:  GENERAL DIVISION

File Number(s):  2020/0835

Re:         SXCB

APPLICANT

And        Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs   

RESPONDENT

Decision

Tribunal:  Mr S Evans, Member

Date:      17 July 2020

Place:     Sydney

The Tribunal sets aside the decision under review, being the decision of a delegate of the Respondent dated 12 February 2020, and remits it to the Respondent for reconsideration with a direction that the Applicant satisfies paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

..............................[SGD]..........................................

Mr S Evans, Member

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – refusal to approve citizenship – good character requirement –  whether Applicant is of good character at the time of decision – assault occasioning bodily harm (DV) – Citizenship Policy -  decision under review set aside and remitted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 18B

Australian Citizenship Act 2007 (Cth) ss 21, 24

Cases

Irving v Minister for Immigration, Local Government & Ethic Affairs (1996) 68 FCR 422; [1996] FCA 663

Mendoza and Minister for Immigration and Border Protection [2018] AATA 686

Secondary Materials

Citizenship Policy

REASONS FOR DECISION

Mr S Evans, Member

17 July 2020

Introduction

1. The Applicant, SXCB, seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”) to refuse his application for Australian citizenship by conferral on the basis that he was found not to meet the good character requirement.

2. The Applicant is 38 years old and was born in China. He arrived in Australia on 13 April 2014 and currently holds a Five Year Resident Return (subclass 155) visa. He lives with his wife and their two children in Sydney. 

3. On 13 April 2018 the Applicant lodged an application for Australian citizenship by conferral. On 12 February 2020 the Respondent refused the Applicant’s application because it could not be satisfied that he was of good character for the purposes of subsection 24(1A) and paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”), as he was convicted of assault on 11 December 2018.

4. The Applicant sought review of this decision before the Administrative Appeals Tribunal (“the Tribunal”).

Hearing

1. The matter was heard on 17 June 2020 and the Applicant, the representative for the Minister and witnesses appeared via videoconference in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The Applicant was self-represented and prepared a written submission for the Tribunal.

2. Unless otherwise stated, the findings which follow are based on the evidence of the Applicant. 

3. For the reasons which follow, the decision to refuse the Applicant’s application for Australian citizenship will be set aside.

Issue for the Tribunal

1. The issue to be determined is whether the Applicant is of good character for the purposes of his application for Australian citizenship.

evidence

Assault conviction

1. On 11 December 2018 the Applicant pleaded guilty of assault occasioning actual bodily harm (DV) in the Parramatta Local Court and was sentenced to a Conditional Release Order without conviction for 12 months. The victim of the assault was the Applicant’s son, JJ, who was then five years old.

2. The circumstances of the assault are not contested. As recorded in the NSW Police Facts Sheet, at 8:30pm on Monday, 12 November 2018 the Applicant was attempting to teach JJ maths. The Applicant regularly spends time after dinner tutoring to his son. The Applicant’s wife entered the room and told the Applicant and his son “time’s up”, indicating the study needed to end so that his son could go to bed. The Applicant attempted to continue teaching JJ who mimicked his mother repeating “time’s up!”.

3. This angered the Applicant and he “used his open hand to strike [his son] on the right cheek of his face”.  The Applicant’s wife walked back into the bedroom and saw her son “covering his head with his hands”. She took him out of the room and JJ told the Applicant’s wife “Dad hit me”. The Applicant’s wife put JJ to bed. 

4. The following day the Applicant went to work. Whilst at work he received a message from his wife with a picture of a red mark on JJ’s face where he had been struck by the Applicant the night before. The Applicant recalled that the message from his wife that morning was to the effect of “see what you have done”.

5. The Applicant’s wife took JJ to childcare as planned. He was wearing a “Spiderman hooded jumper which covered his face and only exposed his eyes”. Later that day a carer at the child care centre observed the red mark on JJ’s face and informed another child care worker, who asked him about the injury. JJ told her “dad got mad and hit me to teach him a lesson”.

6. A report was made to Kids Help Line. On the 14 November 2018 JJ was interviewed by the police, who then spoke to the Applicant’s wife. The Applicant was later arrested and charged.

Testimony of The Applicant

1. The Applicant provided evidence to the Tribunal under affirmation. In relation to the offence the Applicant testified that his son’s behaviour on the evening of the assault “triggered” him. His son was not behaving during dinner and “wasting time” whilst eating and then he could not answer a maths question that he had been taught several times before. When his son started repeating “time’s up” it provoked the Applicant, who concedes he was angry when he hit his child in the face with his open hand.

2. It was put to the Applicant that what he described on that evening is fairly normal behaviour for a five-year-old child. The Applicant told the Tribunal that he was surprised and ashamed at his actions and he was immediately remorseful. He did not consider it an appropriate way to discipline his children at the time. It was not something he had done either before or since.

3. The Applicant described the circumstances in which the assault occurred as being unique and a stressful period for him. The Applicant’s daughter had been born six weeks prior to the assault. His wife was required to stay in hospital for five days after giving birth. She rested for the month afterward and the Applicant returned to work during the day and looked after his newborn daughter during the nights. He says he was deprived of sleep and stressed.

4. In mid-November 2018 he transferred to a permanent role at his work and was in his probation period. He was part of an important project and working to a tight deadline. He felt under additional pressure because he wanted to succeed at his probation so that he would transition into permanent, full-time employment.

5. The Applicant reflected on what he sees as the cultural differences between China and Australia in relation to disciplining children. He said that whilst what he had done to JJ was acceptable and commonplace behaviour in China, it was not how he wished to treat his son. He acknowledged being surprised that it progressed to the point of police involvement and criminal charges. Whilst he believed what he had done to his son was wrong, he did not appreciate it was against the law at the time.

6. In a statutory declaration dated 8 January 2020, the Applicant writes that the offence was out of character for him and that he had never been “violent or aggressive” before. He believes that whilst the stress of having a newborn daughter and new job may have been contributing factors, they do “not in any way justify my actions”.

7. In his statutory declaration, the Applicant writes, in part:

   I am working hard and believe that hard work will eventually pay off. I have been employed for more than 12 consecutive years with banks and financial institutions and paid my tax on time.

8. The Applicant considered that he was suffering from postpartum depression at the time of the assault. He visited his general practitioner and was referred to a psychologist. He did not attend the session with the psychologist because he was unable to secure an appointment within a timeframe he considered helpful. He confirmed that he had not undertaken any rehabilitation or anger management. Nor had he been diagnosed with postpartum depression. He said he was guessing this was an appropriate diagnosis in retrospect. 

9. After the assault he sought to reorient his relationship with his son and to become closer to him. He confided in friends and colleagues, seeking advice and support. He said he found this was helpful. He said it was a complex situation and many pressures came together but he is confident that if it were to happen again he would realise the seriousness of the situation before it escalated. 

Character references

Testimony of the Applicant’s wife

1. The Applicant’s wife provided oral evidence to the Tribunal and a statutory declaration dated 11 December 2019. She writes that after the assault, having put her son to bed, she confronted the Applicant about what had happened. The Applicant had told her that he had hit their son and that he was very sorry. She writes that she was angry about what had happened but believed him when he assured her that it would never happen again.

2. She said that the Applicant had been crying after he hit his son. She confirmed that the Applicant is generally very patient with their son. She says that her son wanted to wear the Spiderman top which covered his face and there was no intention to conceal what had happened.  

3. She said that normally when disciplining their son, the Applicant will talk him through the issue and confirmed the Applicant does not use physical force to punish JJ.

Testimony of Mr Chang

1. Mr Lai Phi Chang has known the Applicant for more than five years, having met at work. He provided oral evidence at the hearing and has also submitted a statutory declaration dated 9 December 2019.

2. He was “shocked” that the Applicant would assault his son as it was out of character for the Applicant. He described the Applicant as a generous and kind colleague who had shown “deep remorse” for what he had done. He believed the Applicant when he said he “wanted to be a better father… and could see his regret for his actions”. 

3. Mr Chang provided examples of the Applicant’s generosity including offering to assist with gardening and providing advice and contacts for a trip Mr Chang made to China.

Testimony of Ms Skellon

1. Ms Linda Skellon is the Applicant’s manager at work and she has known him for more than five years. She provided a statutory declaration dated 7 December 2019 and gave evidence at the hearing. 

2. Ms Skellon confirms that the Applicant was under pressure at work at the time of the assault and that he has always been a “kind person” at work. She described him as a good worker. She has met the Applicant’s family including his son and said that their interaction demonstrated that the Applicant’s son was close to and trusting of him. She described the Applicant’s son as intelligent, cheeky and confident.

Legislative and policy framework

1. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

2. Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

3. Under paragraph 21(2)(h) of the Act a person is eligible to become an Australian citizen if, among other things, the Minister is satisfied that the person:

   (h) is of good character at the time of the Minister’s decision on the application.

Determining questions of character

1. The term "good character" is not defined or qualified by the Act. Its meaning was considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government & Ethic Affairs (1996) 68 FCR 422; [1996] FCA 663 (”Irving”) in the context of the power of the Minister to refuse to issue a visa. Davies J said at 425:

   It should also be observed that the term "good character" is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual's reputation or repute: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. I do not suggest that, in the context, "good character" refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

2. To similar effect, Lee J said at 431:

   Unless the terms of the Act and Regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review 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.

3. The Citizenship Policy (“the Policy”), provides guidance for decision makers, including the Tribunal, in determining whether the Applicant is of good character.

4. Informed by the discussion in Irving, the Policy suggests that:

   …a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.

5. The Policy specifically calls for the decision maker to “look holistically at an applicant's behaviour over a lasting or enduring period of time”. Relevantly, the Policy requires decision makers to consider, by applying community standards, whether any mitigating circumstances or explanation outweigh the applicant’s behaviour. Decision makers should place more weight on significant offences.

6. The Tribunal was guided by these considerations in determining if the Applicant meets the good character requirement for Australian citizenship.

Consideration

1. The Respondent submits the Applicant’s offence was directed towards a vulnerable child and that the nature of the assault was serious. The Tribunal is directed to Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 where it is stated 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.

2. It is further submitted that the Applicant has downplayed the seriousness of the assault by stating he received a “lenient” sentence.  Whilst I accept that the Applicant’s language could give rise to the suggestion that he is seeking to minimise or downplay the seriousness of the offence, in circumstances where he has never sought to deny what he did and has accepted responsibility from the outset, I do not accept this is the case. 

3. Whilst acknowledging the seriousness of the offence, and the vulnerability of the victim, it is relevant that the Applicant was tutoring his son at the time of the assault, something that he does most evenings. He does this for his son’s benefit, and it is notable that he continued to prioritise his son’s development in the face of competing demands on his time notably caring for his newborn child and working a demanding job.

4. The Applicant acknowledges that he lost his temper and struck out in anger at his son. As the representative for the Minister pointed out, the behaviour in question on the evening of the assault was not unusual behaviour for a five year old. 

5. As mentioned, the Applicant submits that corporal punishment is acceptable in China and discipline of children is generally a private matter.  He did not realise the seriousness of the incident until the police became involved. There is no evidence before the Tribunal to support this proposition, but the Applicant has not sought to use what he argues is a cultural norm in China as an excuse for his offending in Australia. The Respondent contends that the Applicant has indicated he does not appreciate the seriousness of the offence and has limited remorse for his conduct. The Applicant maintains that he was immediately “regretful and deeply remorseful” following the assault.

6. The Applicant’s perception outlined above explains why he considered the assault a domestic issue and was surprised that it escalated into a police matter, criminal charge and conviction.

7. It was suggested by the Respondent that JJ may have been sent to child care wearing a Spiderman outfit in order to conceal the mark on his face. Both the Applicant and his wife gave evidence in relation to the choice of outfit their son wore the day after the assault. The Applicant said that his son wanted to wear the outfit as he was five years old at the time. On balance, in light of the nature of the injury and evidence that the Applicant believed that discipline would be considered a private matter, I accept that there was no attempt to conceal the incident in spite of being embarrassed by his behaviour. 

8. The Policy states that “the good character requirement looks at the essence of the applicant”. In this regard, the Applicant is an individual who is dedicated to his young family and has striven to provide his wife and children the opportunities afforded by living in Australia. He moved to Australia independent of an employer sponsorship. He made a decision to do so for the betterment of his family’s future. His solid employment history indicates he has worked hard to establish a career and provide for his family. 

9. Although self-represented, the Applicant engaged in the review process with sincerity and passion. He told the Tribunal that he values the opportunity to live in a country where such decisions can be challenged. The thoughtfulness of his application confirms this to be the case. 

10. In the context of character, the “enduring moral qualities” of an individual, what the Applicant did subsequent to the assault was important. He writes “I exposed my offence not only to my family but also to my community in order to address my offence [sic] behaviour”.

11. The Applicant spoke frankly and with honesty to his neighbours, colleagues and friends, some of whom testified at the Tribunal about his offence. He went to his doctor and sought help, he researched his reaction and reflected sincerely on what he had done. He has clearly sought to understand his behaviour and his remorse is genuine. He has reassessed his parenting style and sought to align it with Australian social norms and expectations. Whilst the Applicant sought but did not proceed with professional help, the Tribunal finds that his response was proportional and appropriate given the isolated nature of the offence. All of which demonstrates the Applicant’s good character and supports the contention that the offence was out of character.

1. The Respondent submits that the Applicant’s offending is relatively recent and his obligation to the Court expired more recent still. Whilst there is no prescription as to what constitutes and adequate amount of time that needs to elapse before the Applicant’s good character can be determined, it is the case that the Applicant’s conditional release order expired in December 2019, and the offence itself occurred over a year prior. Further time has passed without incident since the delegate’s decision and as the Applicant is 38 years old and this his only known offence, the Tribunal places limited weight on this consideration. 

2. The Applicant’s character was backed by strong witnesses, particularly Ms Skellon and Mr Chang, who gave oral testimony and provided statutory declarations. Both testified strongly in support of the Applicant and vouched for his character through personal interactions, evidence of his contributions in the workplace and his remorse over the assault. Both have known him for an extended period and confirmed important aspects of his account, particularly the ongoing strength of the relationship he has with his son.

Conclusion

1. The Applicant was both sincere and determined in presenting his case to the Tribunal.  His approach to his offending – beginning with acceptance and a guilty plea – served to strengthen his claim for Australian citizenship and his contention that he meets the good character requirement. In support of his application the Applicant presented credible referees who acknowledged the offence and clearly knew the Applicant well. 

2. I accept that the Applicant has learnt from the experience and importantly has looked to the Australian community for guidance on how he might meet community expectations in the future and be a better father. I am satisfied that he wants the best for his family and his testimony indicates that he has learnt valuable and practical lessons from his offending.  

3. I accept a relatively short period of time has passed since the Applicant’s obligation to the court expired, but this is outweighed by the factors in favour the Applicant’s application. 

4. Weighing all the available evidence, I am satisfied that the Applicant is of good character as required by the Citizenship Act.

Decision

1. The Tribunal sets aside the decision under review, being the decision of a delegate of the Respondent dated 12 February 2020, and remits it to the Respondent for reconsideration with a direction that the Applicant satisfies paragraph 21(2)(h) of the Act.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of 

...............................[SGD].........................................

Associate

Dated: 17 July 2020

Date(s) of hearing:

17 June 2020

Applicant:

In person

Solicitors for the Respondent:

MinterEllison