TGYM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2023] AATA 1636
•12 May 2023
TGYM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2023] AATA 1636 (12 May 2023)
Division:GENERAL DIVISION
File Number(s): 2022/7547
Re:TGYM
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:12 May 2023
Date of written reasons: 15 June 2023
Place:Sydney
For the reasons given orally at the conclusion of the hearing held on 12 May 2023, the Tribunal decides that:
1.The decision of the delegate of the Respondent dated 29 August 2022 to refuse the Applicant’s application for citizenship pursuant to subsection 24(1) of the Australian Citizenship Act 2007 (Cth) (‘the Act’) is set aside.
2.The matter is remitted to the Respondent for reconsideration and determination according to law, with the direction that:
a.the Respondent is satisfied that the Applicant is of good character for the purposes of subsection 21(2)(h) of the Act.
..............[SGD]..............................................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
Citizenship – application for citizenship by conferral – refusal – good character requirement – common assault domestic violence offences – failure to disclose – decision under review set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Australian Citizenship Act 2007 (Cth) s 21, 24CASES
Alemu and Minister for Home Affairs (Citizenship) [2019] AATA 3352;
Binamu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1362; KKHS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 204
Ngechu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2977
R v Mauger [2012] NWCCA 51
Shahzad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4722
VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230SECONDARY MATERIALS
Citizenship Procedural Instruction (CPI) 15 - Assessing Good Character under the Citizenship Act 2007
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
15 June 2023
INTRODUCTION
On 29 August 2022, TGYM’s application for Australian citizenship was refused on the ground that she did not satisfy the good character requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (‘the Act’).[1] On 15 September 2022, she applied to the Tribunal for review of this decision.
[1] T13, 86.
I have decided to make an order prohibiting the disclosure of information tending to reveal the identity of the applicant, her husband, and children, under subsection 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth). I shall refer to TGYM as ‘the applicant’.
BACKGROUND
On 6 June 2020, the applicant and her husband (‘KR’) had an argument which escalated to violence. As a result, the police were called to the family home and the applicant was arrested. She was charged on two counts of assault (DV), one relating to KR, the other to her stepson (‘TS’).[2] She was returned to the family home at three in the morning.
[2] S6, 15.
A fortnight later, on 20 June 2020, she lodged an application for Australian citizenship by conferral.[3] Citizenship applications contain a character declaration, an important part of every such application. An applicant is asked several questions pertaining to character, including whether there are any outstanding charges or past convictions and so on. The applicant answered ‘No’ to the following two questions:[4]
Is the applicant aware of any proceedings pending against them overseas or in Australia for an offence, including proceedings by way of appeal or review?
Has the applicant ever been charged with any offence overseas or in Australia that is currently awaiting legal action?
[3] S15, 36.
[4] S15, 51.
These were undeniably false statements, because she was facing charges of assault when these answers were given. She should have answered ‘Yes’.
On 13 August 2020, she pleaded guilty in the Bankstown Local Court to two counts of assault committed on 6 June 2020. She was sentenced for each count to a 12-month conditional release order (‘CRO’) without recording a conviction.[5]
[5] Transcript, 12 May 2023, 65.
In June 2021, her application for citizenship was refused because she failed to pass the Citizenship Test.
On 30 June 2021, she made a new application, which is the subject of these proceedings.[6] In this application she answered ‘No’ to the following question:
Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application, and any 'spent' convictions)?
[6] T4, 20, T5, 46. T9, 69.
She had been found guilty on two counts of assault, even though no conviction was recorded. Therefore, her answer ‘No’ was false.[7]
[7] T4, 31
On 5 May 2022, the Department of Home Affairs wrote to the applicant to invite her to comment on adverse information and referring to her criminal history check.[8]
[8] T8, 60, 66.
In her response dated 22 May 2022, she stated:[9]
My husband made a complaint in 2020 against me and I got a conditional release order without conviction on 13th August 2020. We totally forgot about that incident that happened earlier because we are so busy dealing with our autistic child so we forgot to mention it in character declaration when we re-submitted my citizenship application on 30 June 2021 which was totally unintentional fault as I mentioned before that we used our previous filled up form to submit it again. But whatever the reason I accept my mistake and apologize for my mistake was done unwillingly. I hope it will justify my situation and would request you to accept my apology and give me the chance to be a citizen in this great country. I’m very excited after passing my test and it would be a great honor to be an Australian citizen.
[9] T9, 69.
She also stated that the application was filled out in some haste because the application fee was due to go up on 30 June 2021.
On 29 August 2022, a delegate of the Minister refused her application for Australian citizenship on the basis that she did not satisfy the good character requirement under paragraph 21(2)(h) of the Act.[10]
[10] T13, 86.
On 15 September 2022, she applied to the Tribunal for review of this decision.
In summary, the two assault charges were laid on 6 June 2020, and the first citizenship application was made on 20 June 2020, two weeks later. The charges were dealt with on 13 August 2020 and the second citizenship application was not made until 30 June 2021.
MATERIALS BEFORE THE TRIBUNAL
On 19 December 2022, the applicant’s solicitor filed the following evidence with the Tribunal in support of her application, together with a Statement of Facts, Issues and Contentions (ASFIC):
(a)a statutory declaration of the applicant made on 4 December 2022;
(b)a statutory declaration of KR (the applicant's husband) made on 9 December 2022;
(c)a letter from Dr. Indrani Mukherjee, clinical psychologist, dated 8 December 2022;
(d)a statutory declaration of MR (the applicant's brother-in-law) made on 9 November 2022;
(e)a statutory declaration of SH (the applicant's friend) made on 15 December 2022;
(f)a statutory declaration of SA (the applicant's friend) made on 15 December 2022;
(g)a statutory declaration of JS (the applicant's friend) made on 4 November 2022;
(h)a birth certificate of the applicant's child and stepson;
(i)a letter from Dr Pankaj Garg, consultant paediatrician, dated 18 May 2019;
(j)a cover letter, dated 13 September 2021, advising that the National Disability Insurance Scheme (NDIS) plan for the applicant’s son had been approved;
(k)a NDIS plan in relation to the applicant's son, dated 12 September 2021; and
(l)a bundle of photographs of the applicant and her family.
THE HEARING
The application for review was heard by the Tribunal on 12 May 2023.
The applicant was represented by Ms A. Youssef, a solicitor from Immi House Legal, the Respondent by Mr H. McLaurin of the firm Minter Ellison.
The applicant gave evidence with the assistance of a Bengali interpreter.
BACKGROUND
The applicant was born in the People’s Republic of Bangladesh in 1979. She is a citizen of that country.[11] She grew up in a middle-class family in Dhaka but was orphaned at a relatively young age.[12]
[11] T4, 45.
[12] Applicant’s Tender Bundle (ATB), 1.
In December 2013, she married KR, an Australian citizen, in an arranged marriage. KR is a highly qualified medical specialist.
KR has a child TS from a previous relationship, who was born in 2006.[13]
[13] ATB, 15.
The applicant arrived in Australia on 28 October 2014, as the holder of a Temporary Partner (subclass 309) visa.[14] She did not speak English although her fluency has improved to the point where, in her current application, she was able to pass the citizenship test.
[14] T3, 11.
In October 2016, the couple had a child, and named him AR.
On 21 August 2017, the applicant was granted a Permanent Partner (subclass 100) visa.[15]
[15] T3, 11.
The period from late 2018 was a time of some adjustment for the family. First, her stepson TS, who was then 12 years old, came to live with them in December 2018.[16] And in January 2019, AR was assessed as having learning difficulties. AR was diagnosed with grade 3 autism on 18 May 2019.[17]
[16] Transcript, 12 May 2023, 20.
[17] See report by consultant paediatrician, Dr Pankaj Garg: ATB, 16.
The applicant became stressed and anxious during this period and the couple started to argue. On two occasions in 2019, police attended the property.
The first incident occurred on 27 April 2019. At around 2:00 pm police attended the family home, having been called by TS, who was then 13 years old. TS told the police that his father and the applicant were arguing over the infant not sleeping well. There was some suggestion of a broken glass. Two police officers attended. KR had a scratch on his face. He was adamant that this was something that happened by accident and that there was no cause for concern. There was no sign of any broken glass. The police took no action and left. Later that afternoon, TS called the police again and said that the applicant was ‘yelling at him’ for calling the police. The police returned to the home and spoke to the applicant. The file note states: ‘police were satisfied no offence occurred and it was a verbal argument only’.[18]
[18] S1, 6.
On 18 May 2019, Dr Garg made the diagnosis and completed a request form for funding from the National Disability Insurance Agency (‘NDIA’).[19]
[19] ATB, 16.
On 10 July 2019, police were called to the home for a second time. On this occasion, KR called the police. The NSW Police COPS reports notes:
About 12.15am on Wednesday the 10th July 2019, Police attended .................. .. ....... ......... after receiving information a domestic dispute was occurring at the location. Police arrived at the location and observed the POI sitting outside the unit block on the staircase. Police asked the POI who was inside the unit and whether any assault had taken place. The POI told police she had an argument only with her husband and no injuries were observed on the POI. Police entered the unit and spoke with the victim who was inside with both his children .................. ................... The victim told police he and the victim had an argument after she got out of bed and walked into his step sons bedroom and noticed the heater was running. The POI began yelling at the child for having the heater on which caused the victim to get out of bed and tell the POI to leave his child alone. This has caused an argument between the victim and POI and the POI told the victim she was leaving the house and staying elsewhere. The victim did not stop the POI but refused to give her their youngest child ........ . as it was extremely cold outside and he did not want the POI walking the streets with their child in the middle of the night. The POI refused to leave without the child and the victim was carrying the child at the time. The POI walked up to the victim and has gone to take the child from the victims arms and in the process has accidentally scratched the side of the victims face. The POI has left the unit and the victim has called police as he was concerned for her welfare out in the cold. The victim told police the scratch to his face was completely accidental and only occurred as he moved when the POI went to take the child. Due to the victim being adamant the POI did not intentionally scratch his face and the POI denying any assault taking place no further police action will be taken. Police also spoke with the eldest child who confirmed the victims version. The victim arranged for the POI's cousin to attend the location to pick the POI and stay elsewhere to prevent any further arguments.[20]
[20] S1, 5.
There was no evidence of criminal offending, and no further action was taken.
The following year, on 6 June 2020, the couple had an argument which escalated to violence. According to the police notes, she clawed at his face, punched him, and tried to assail him with a plastic pot. He showed commendable restraint and put his hands behind his back. He did not strike back. TS, who was then 14 years of age, promptly called the police. She fell to the ground crying ‘help me’. Two constables attended and after speaking to KR and TS, they removed the applicant to the police station where she was interviewed with the assistance of a Bengali interpreter, and then charged with assault. She was returned to the family home later the same night. The couple reconciled and according to them both, there has been no repetition of this sort of behaviour since.[21]
[21] S1, 3.
I note that according to the Police notes:
Police organised for a Bengali interpreter to assist with Translating for [TGYM]. With the assistance of the interpreter, [TGYM] was read her rights in accordance with Part 9 of the Law Enforcement Powers and Responsibilities Act 2002 (NSW) by Sgt FULLER. [TGYM] participated in an Electronically Recorded Interview of Suspected Persons during which she denied punching ......... or hitting him with the pot plant. [TGYM] agreed to placing her hands on ......... face and scratching his face. [TGYM] also denied pushing or kicking [TS]. During the interview, [TGYM] stated the fight occurred after ......... tried to stop her from leaving the location and pushed her onto the floor. The accused is now charged with the matter before the court.
An AVO was imposed for the protection of KR and TS. A condition of bail was that she comply with the AVO.[22]
[22] A copy of the AVO has not been provided to the Tribunal.
She was charged with two offences, one relating to KR, the other to TS.[23] On 13 August 2020, she pleaded guilty in the Bankstown Local Court to two counts of assault. She was sentenced for each count to a 12-month CRO without recording a conviction.[24]
[23] S6, 15.
[24] Transcript, 12 May 2023, 65.
The CRO commenced on 13 August 2020 and concluded on 12 August 2021. It contained standard orders for supervision by the Community Corrections Service. She was also ordered to attend and participate in such counselling or interventions directed by Community Corrections.
Following the court hearing, she saw a psychologist on 2 September 2020,[25] 30 September 2020,[26] and 4 November 2020.[27]
[25] T9, 72.
[26] T9, 73.
[27] T9, 74.
On 12 September 2021, the NDIA approved a plan for AR. He is now a supported client of the NDIS with total funding supports of $19,399.00.[28]
[28] ATB, 28.
LEGISLATION AND POLICY FRAMEWORK
A person wishing to become an Australian citizen must satisfy the Minister that they are of good character at the time of the Minister's decision on the application pursuant to section 21(2)(h) of the Act.
The relevant time for consideration is the time of the Tribunal’s decision: see VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 at [32] per Banks-Smith J, who noted:
I also note that the term 'good character' is not defined in the Citizenship Act, which indicates that Parliament intended the term to be used in a broad way and allows the decision-maker to consider a range of events and conduct connected with the applicant… A construction of s 21(2)(h) that does not limit the use of subsequent relevant information is consistent with that intention. (Authorities omitted)
The latest iteration of the Citizenship Procedural Instruction (‘CPI’) 15 - Assessing Good Character under the Citizenship Act (‘the Instruction’) was issued on 26 February 2021.[29]
[29] T17,139.
Paragraph 3.3 of the Instruction provides:
3.3 What is good character?
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 422; at 431-432):
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 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.
The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have endured over a long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
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 the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application…
Community standards
In Zheng v Minister for Immigration and Citizenship [2011] AATA 304, DP Forgie found the Preamble to the Act could provide assistance in identifying what the Australian society considers to be right and proper behaviour for the purposes of assessing good character.
The Preamble to the Act sets out the meaning of Australian citizenship:
Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
After considering the text of the Preamble, DP Forgie stated:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do…
…
Australian values statement
Another identification of community standards can be found in the Australian values statement in visa applications, which requires applicants to confirm that they will undertake to act in accordance with the values of Australian society during their stay in Australia and obey the laws of Australia.
The values statement signed by most applicants for permanent visas also acknowledges that, if in the future the applicant goes on to meet the legal qualifications for becoming an Australian citizen, they will need to pledge their loyalty to Australia and its people.
While a values statement will not have previously been made by all citizenship applicants in a previous visa application, the wording of it is mirrored in the declaration contained in citizenship application forms that applicants must agree to in order to lodge a valid application.
Paragraph 4 of the Instruction provides
4. An applicant who is of good character
An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example
o intentionally providing false personal information (such as fraudulent work experience or qualification documents) or
o other material deception during visa and citizenship applications;
o evading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
o knowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
o concealing criminal convictions;
o fraud against the Commonwealth such as tax fraud or Centrelink fraud;
o giving false names and/or addresses to police;
·not be the subject of any extradition order or other international arrest warrant;
·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example multiple and/or repeated instances of recklessness exhibited by negligent or drink driving, excessive speeding or driving without a licence);
·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;
·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide
·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.
Paragraph 6 of the Instruction provides:
6. Assessing good character under the Act
The citizenship character assessment is informed by the applicant’s conduct prior to applying for a visa and during their time in Australia. It is an assessment of all the available information, including any information provided in the visa application process and while the applicant has been a visa holder in Australia and during the processing of the citizenship application.
·A good decision-maker does not seek out and only consider information that supports the decision that they want to make. All relevant information must be considered. This includes all information before the Department whether or not that information was provided for the purposes of a citizenship decision.
·Information such as character references provided by people who know the applicant must also be considered.
·Decision-makers must guard against making erroneous assumptions…
Paragraph 11 of the Instruction sets out the factors that may be taken into account when assessing good character, including how the applicant has behaved in their interactions with government officials.
Paragraph 12.2 of the Instruction refers to the assessment of the relative seriousness of the offending and identifies factors such as:
·The length of the sentence.
·Ongoing obligations such as a good behaviour bond.
·Sentencing remarks, as they give an insight into the nature of the offence and the character of the applicant at the time of sentencing.
·It may be appropriate to consider whether the offending behaviour is the subject of any Government initiatives on particular types of behaviour, for example domestic violence, OMCGs and youth gangs.
·Any victims of the offence, especially children, the elderly or the disabled or others who were reliant on, or placed trust in, the applicant.
THE EVIDENCE
The applicant confirmed that she was married to KR in 2013. She said that they had a ‘normal happy marriage’ but in 2020 there was a ‘bit of an incident’. She described it in this way:
Actually we together have always, and on that particular day my husband was completing the form - filling out the form for citizenship. I was with him and in that time there was a telephone call, and I received the telephone call. I moved away and received the telephone call, and the son, the other son - actually this son is my husband’s son from his ex‑wife - he was in a different room. So, our baby was a bit bothering, so my husband got a bit educated, and told me where you are, the child is bothering me, I cannot concentrate on writing, and he just said that in a very raised voice and then I came in. Then I said he could have told that softly anyway; I had a telephone call I needed to action, and over this issue the discussion became a bit argumentative.[30]
[30] Transcript, 12 May 2023, 8.
A statement prepared by the police for the criminal proceedings was read to the applicant line by line.[31] She agreed with the contents of the statement, which provides:
About 8:00pm on the 6th of June, 2020, [KR] and [AR] were in the living room of [redacted]. [KR] was seated at the living room table. the accused and [TS], the applicant's 14 year old step-son] were both within their own bedrooms on the other side of the unit. At this time, [AR] began climbing onto the living room table and walking along the edge of the table. [KR] removed [AR] from the table numerous times however due to his intellectual disability [AR] continued to climb on the table. [KR] called to the accused to assist him with [AR] and asked the accused to take [AR] into the bedroom with her. The accused exited her bedroom and walked to the living room where she confronted [KR] and began shouting at him.
The accused accused [KR] of never asking [TS] to help out around the house and accused [KR] of plotting to take their children and leave. [KR] attempted to calm the situation. The accused then said, "you are disabled, your sons are disabled, you are son of a bitch." The accused began walking away, [KR] followed the accused and stated, "the accused this is not the right way, you need to do this in the right way because you have a little son." At this time, both the accused and [KR] were standing in the living room of the unit. The accused walked towards [KR] and placed both hands onto the face of [KR] over his eyes. The accused dug her nails into [KR] upper cheek, below [KR] eyes causing 1 small superficial laceration to [KR] cheek below each eye. [KR] placed his hands behind his back and said, "you can not do this."
The accused then used a close fist to punch [KR] in the face, head and arms numerous times. [KR] placed his hands in front of his face in an 'X' to protect himself. The accused took hold of the glasses [KR] was wearing and attempted to remove them from his face. [KR] kept hold of the glasses until the accused let go. When the accused let go, she fell to the floor.
The accused walked into the hallway of the unit and picked up a small plastic pot plant and confronted [KR] with it. The accused used the pot plant to hit [KR] an unknown amount of times. Hearing the commotion in the hallway TS exited his bedroom where he saw the accused swinging the pot plant towards [KR]. [TS] approached the accused and took hold of the pot plant in an attempt to stop the accused from hitting [KR]. [TS] said, "You need to stop doing that or I will call the Police." The accused said, "This is my husband, I can do what I want." [TS] held onto the plant with one hand and used his other hand to call 000. The accused then used one hand to push the pot plant towards [TS]. The accused forced [TS] backwards until [TS] hit the wall behind him. The accused continued to struggle to remove the potplant from [TS] and kicked [TS] once to [TS] left leg.
When the accused saw [TS] on the phone to 000, the accused dropped to the ground and began to shout, "Help me, Help me."
During this time, Police received numerous calls to the location from neighbours who could hear the commotion. A short time later, Police arrived on scene.
[31] ST7, 17-19.
She was asked whether she disagreed with anything in the statement. She said, ‘this is fact’.[32]
[32] Transcript, 12 May 2023, 13.
The applicant accepts that the police notes are correct. She was asked specifically by the Minister’s representative why she kicked TS and said:
Maybe because at that time - at that particular point of time, I was not thinking straight. And I don’t know - I can’t answer your question, why did I act the way I have done. I’m telling I shouldn’t have done it.[33]
[33] Transcript, 12 May 2023, 24.
She was asked by her solicitor about how she now felt about the way she acted on that day and said:
TGYM: I was feeling sorry all through. I was feeling that I shouldn’t have behaved the way I have done.
Ms Youssef: Why do you feel you acted that way on that day?
TGYM: Actually I remained upset. I feel sorry about the whole episode. You know, my child is autistic. The child does not eat properly, sleep properly. I always have to keep an eye on the child. At times it becomes very difficult, and, you know, because of being in a stressful situation all the time, at times I may be cranky because of that fact that I have to bear so many things. I just think if the child was like a normal child I wouldn’t have to bear all this pain.
Ms Youssef: Did you seek any psychological counselling?
TGYM: Yes, I did.[34]
[34] Transcript, 12 May 2023, 13.
The bail acknowledgement form refers to an AVO listing KR and TS as persons in need of protection.[35] In response to questions in cross-examination, she said that there was no requirement in the AVO to live in a separate place from KR and TS.[36]
[35] S14, 31. The terms of the AVO have not been made available to the Tribunal.
[36] Transcript, 12 May 2023, 27.
The applicant was asked about her non-disclosure of the court outcomes in her citizenship application. She said that because of her ‘language barrier’ the entire form was completed by her husband. He completed it and then told her to sign it. She didn’t go into the details or contents of the application. She was unaware of the question that asked about court matters or convictions.[37]
[37] Transcript, 12 May 2023, 14-15.
She was also asked about her child AR. The child was going to a normal school and had ongoing support from a speech and occupational therapist. She saw a doctor at regular intervals every year. The child was driven to school by a service provided because she did not drive. Everything was going quite well. He was now six years old. His communication was limited to one word. She was told that the child would never be ‘normal’, but she had been told to be hopeful, and that there may be some improvement in future, though he would not be exactly like other children. She was not sure how they graded levels of autism. She thought he was in the middle, neither extreme nor minor.[38]
[38] Transcript, 12 May 2023, 16.
KR also gave evidence to the Tribunal. He said that his wife was courteous, loving and a very humble person.[39] He described the June 2020 incident as out of character and isolated.[40]
[39] Transcript, 12 May 2023, 47.
[40] Transcript, 12 May 2023, 47-48.
He confirmed that there had been no other acts of violence in the history of the relationship, and strongly denied that the applicant had ever struck or kicked his son TS, as indicated in the police statement. He said that the police had attended on other occasions in 2019 but there was no suggestion of violence. In April 2019, police came to the home because they were arguing. In July 2019, he called the police because she had left the flat and he was concerned about her safety. It was very cold outside. She was found sitting on the steps of the building. She went to stay with a family member for a couple of days. These incidents occurred because she was suffering from anxiety and depression after hearing the diagnosis about her son.[41] Her anger was a reaction to the fact that her child had been diagnosed with autism some 3-4 months before.[42]
[41] Transcript, 12 May 2023, 55-56.
[42] Transcript, 12 May 2023, 50.
As far as the June incident went, he was adamant that the only thing she had done to him was hitting him with a pot plant.[43] He was adamant that she had neither hit nor kicked his son.[44] He said that he was filling out her citizenship application and struggling with AR, who was fidgeting around on the table where he was working.[45]
[43] Transcript, 12 May 2023, 50.
[44] Transcript, 12 May 2023, 52.
[45] Transcript, 12 May 2023, 48, 49.
KR is adamant that his wife did not kick TS at all. He states categorically:
She never hit my son, she never hit any my children.[46]
[46] Transcript, 12 May 2023, 51.
The Police Statement relating to the kick was put to KR who responded as follows:
Mr McLaurin: So, do you accept that they may have occurred?
KR: No, it’s not occur, 100 per cent, because this is not my statement. This is my son’s statement. Maybe because I tell you, but when she tried to grab the pot plant and tried to hit me, my son grabbed the pot plant and my wife said: ‘Please go - this is between me and your dad.’ So, she did not hit my son, or she did not - she tried to grab the pot plant from my son. It was unintentional if my son give me this statement that she tried to intentionally hit or hit my son, no. She never did this one. I was there. I was witness. But when he give - he was a teenager. He was a very little boy. What he told police, I was not here. So, I was, as a witness there, this is not true. She tried to grab the pot plant from my son, and my son tried to restrain the pot plant so she cannot hit the pot plant to me. And she did not hit my son, or she did not hit or kick my son.
Mr McLaurin: Are you aware, [KR], that your wife pleaded guilty to assaulting your son?
KR: My wife says guilty for everything because she thought that if she pleaded guilty and she regretted for everything, but this statement to Honourable Representative, I was not aware of this statement, about my son’s statement. But I know my wife pleaded guilty for all the offences she has done. She regretted. She pardons. She say sorry to me and my son and everyone…
It is unclear whether in the heat of the moment the applicant’s foot encountered TS. KR is adamant that his wife did not deliberately kick his teenage son. I accept his evidence.
The applicant’s solicitor asked him about the form filling exercise.
Ms Youssef: Were you aware there was a question: ‘Has the applicant been convicted of or found guilty of any offences overseas or in Australia?’?
KR: I was aware of, but before this was her second application to the citizenship application, so everything was on the system. I was so tired, I was so busy, so this was my fault. I did not read the question correctly, and I misunderstood and I asked her and translated her to sign the statement without explained to her. So this was - I made this mistake, and I really regret for that mistake, and I (indistinct) my pardon to the Honourable Tribunal on behalf of me and my wife.
Ms Youssef: So, did she ask you not to declare any ongoing court matters or court outcomes in the application, whether it was the first or the second?
KR: No. She never ask me anything. She never try to convince me anything. I did it by myself, and solely, it was my decision, own decision.[47]
[47] Transcript, 12 May 2023, 48.
In cross-examination he was asked whether he asked her about the section on the character declaration. His reply was that he did not:
No. To be honest, I did not - even I did not ask her about this one, and I did not even read properly because I - my thinking was because I applied previously, I thought everything is correct. I was totally - you know, I was lazy to read all the statement before I asked her to sign the statement. And that’s the mistake I made.[48]
[48] Transcript, 12 May 2023, 56.
CONSIDERATION
The solicitor representing the Minister contends that by reason of her offending and dishonesty, the applicant does not meet the good character requirement under paragraph 21(2)(h) of the Act. He points to the seriousness of the applicant's offences, the limited time that has elapsed since her obligation to the court ceased, the limited evidence of rehabilitation, and the applicant's dishonesty in her application for Australian citizenship.
I do not accept this contention.
There are no sentencing remarks before the Tribunal, just the notes prepared by a police witness. The sentence speaks for itself. There is nothing else in her criminal record and she has no criminal charges pending.
It is often said that all forms of domestic violence are serious, and that the community and the Government, as the expression of community values, do not tolerate it. Moreover, a person may lose their reputation for good character on the basis of a single act of domestic violence.
Nevertheless, I attach significant weight to the fact that the applicant has no record of offending apart from the present instances, and that the court determined that no conviction be recorded. As noted by the New South Wales Court of Criminal Appeal in R v Mauger, the power given to a sentencing court to order that no conviction be recorded even though an offence be proven ‘reflect[s] the willingness of the legislature and the community to provide offenders with an opportunity, in certain circumstances, to maintain a reputation of good character, and to avoid the otherwise rigid application of inexorable laws’.[49]
[49] [2012] NSWCCA 51, at [18].
I also note the several references that have been provided on behalf of the applicant.
The major blemish on her character (the assaults) occurred a little over a year after the child was diagnosed by Dr Garg with autism, and before the family was in receipt of NDIS support.[50] It is reasonable to assume that this was a period of great stress for the entire family.
[50] ATB, 16.
I do not accept the argument that because stress was a factor in her offending, and that the stress associated with an autistic child is ongoing, that the likelihood of reoffending is neither remote nor trivial. I have no doubt that the provision of support services under the NDIS is a life changer for this family, that the applicant has learnt from her experience and has demonstrated genuine remorse.
In terms of the period that has elapsed since her criminal offending, I note that it is almost exactly three years since the incident which blemished her character, and two months short of two years since the CRO expired on 12 August 2021. There is no hard and fast rule as to how much time must elapse to reprise bad behaviour. Everything depends on the circumstances. Given the lack of any other offending, and the decision by the sentencing court not to record a conviction, I consider that sufficient time has elapsed.
I also note the professional opinion provided by clinical psychologist Dr Mukherjee after seeing her over three sessions. She was seen on 4 November 2022, 19 November 2022 and 3 December 2022, ‘mainly with the intention to assess her current psychological wellbeing and write this support letter for the AAT Administrative Tribunal to consider candidature for citizenship.’ The report states:
Given [TGYM’s] background, no past history of any psychological condition/s, the sited statutory declarations by family and friends on 3.12.22 on her positive and responsible demeanour as an individual, wife and mother; her admitted remorse on her domestically violent behaviour on the 6.6.2020, her treatment, prognosis, use of regular coping and current reported positive engagement with her family and positive psychological wellbeing, it is my professional opinion as a clinical psychologist that she is at no risk of reoffending.[51]
[51] ATB, 8.
In terms of her failure to disclose the court outcome, this is undoubtedly a serious matter.
I have, however, taken account of the fact that her English was limited and that she was heavily reliant upon her husband for administrative tasks of the kind in question. I also note the unusual circumstances that the previous citizenship application was used to populate the answers to the current application and that in KR’s view, this led to error.
In evidence, the applicant gave some indication that she was aware that the answers given in the character declaration were false, but given the difficulties of translation, I am not persuaded that she fully understood what she was conceding. KR denied that they had colluded in any way to provide false information and said that any mistake was entirely his.
In my oral decision, I stated the following:
The evidence I have heard today is that the applicant, TGYM, is a good wife; is a person who has taken on responsibilities for a teenage boy, for the son of her husband; and has had a very significant burden to carry over the last few years, in that her son has been diagnosed with autism, and not just any degree of autism, but level 3 autism, which, as I understand, is the most serious form of autism. She has carried this burden in a country that is still strange to her, where she does not speak the language, and, from the evidence, has limited social support. It is, in the Tribunal’s view, very difficult to assess her offending without being aware of these circumstances.
But for the two areas of concern, namely the offending and the failure to disclose those offences in the application, there would be no question but that she is a person of good character. The role of a mother and a caregiver is a vital part of our society, but there is a scourge in our society, and that is the scourge of domestic violence. I do want TGYM and KR to understand well that this Tribunal takes domestic violence very seriously.
The evidence before me has been that in the period 2019 and 2020, not long after the diagnosis of autism was made, there were some incidents which do not show TGYM in a good light. On at least three incidents, she has screamed at her husband, lost her temper, and on one of those incidents, was arrested by the police. It is a conspicuous feature of this case that on only one of those occasions did her husband call the police, and that was because he was concerned about her welfare.
That these incidents happened within the family, and in front of the children, is a very common aspect of domestic violence offending. On the occasion in which the matter was dealt with by the Criminal Court, the fight that occurred on 6 June 2020, the court recorded two convictions: one against KR , and one against his son. However, the court, in providing for a community service order, made an order that no conviction be recorded.
The effect of an order of that kind is well summarised in the decision of the New South Wales Court of Criminal Appeal, R v Mauger [2012] NWCCA 51, and I quote from paragraph 18, which is to the following effect:
Section 10: Reflect the willingness of the legislature and the community to provide offenders with an opportunity, in certain circumstances, to maintain a reputation of good character, and to avoid the otherwise rigid application of inexorable laws.
So while this Tribunal recognises that all domestic violence offending is serious, it must also recognise that there are grades of offending and degrees of seriousness, and I am guided by the New South Wales Court of Criminal Appeal in assessing the degree of seriousness in this particular case at the bottom of the range of seriousness.
The evidence suggests a person who had lost their temper and was out of control, and had virtually no prior history of such offending. The Tribunal has been far more troubled by the question of honesty in dealing with the government. This has been a difficult decision for me because it is vitally important that individuals provide accurate information to the government in applications such as this, and I do not want to send a signal to you, TGYM, or to anybody else, that the Tribunal does not take these matters very seriously.
I have, however, taken account of the fact that you do not speak English, and that you are heavily reliant upon your husband for doing such tasks as filling out forms like this. In your evidence, you gave some indication that you were aware that the answers that you had given may not be completely accurate, and that is where I have found some difficulty in deciding this case, but I have concluded that your mistake was just that, a mistake, and under the circumstances, including your lack of English, your reliance on your husband, and the circumstances of your family, I should not find that you are a person of bad character because of that single mistake.
Those are my reasons for finding that you are a person of good character.
In preparing these written reasons, I have considered some other decisions which bear similarity to the case at hand.[52] In Ngechu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 2977, I noted that an applicant’s criminal record and non-disclosure do not necessarily preclude a finding that they are of good character.
[52] See also Binamu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1362; Alemu and Minister for Home Affairs (Citizenship) [2019] AATA 3352; Shahzad and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 4722.
In KKHS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 204, at [38], I held that applicants who fail to disclose important matters must satisfy a heavy burden of proof that they are of good character. It is important that they accept full responsibility for their application, particularly if it is completed by a third party.
There are mitigating circumstances in the present case, and the applicant’s loss of control on the occasions described above should be accepted as a sign of human frailty. That is not to say that in behaving in the way she did, she is beyond reproach. I do not, however, consider that under all the circumstances her behaviour was such as to disentitle her from being regarded as a person of good character.
I am also satisfied that the consequences of domestic violence have been brought home to the applicant in a dramatic way, and that the likelihood of any further family violence is remote.
In my opinion, this is a case where the applicant should be allowed to maintain a reputation of good character. Given the challenges of rearing a severely autistic child and maintaining a home for her stepson and husband, and her own mental frailty, I am satisfied that this is the correct and preferable decision.
I am positively satisfied that the applicant is a person of good character within the meaning of paragraph 21(2)(h) of the Act.
DECISION
For the reasons given orally at the conclusion of the hearing held on 12 May 2023, the Tribunal decides that:
1. The decision of the delegate of the Respondent dated 29 August 2022 to refuse the Applicant’s application for citizenship pursuant to subsection 24(1) of the Australian Citizenship Act 2007 (Cth) (‘the Act’) is set aside.
2. The matter is remitted to the Respondent for reconsideration and determination according to law, with the direction that:
a. the Respondent is satisfied that the Applicant is of good character for the purposes of subsection 21(2)(h) of the Act.
I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
..........[SGD]..............................................................
Associate
Dated: 15 June 2023
Date of hearing: 12 May 2023 Solicitors for the Applicant: Ms A Youssef, Immi House Legal Solicitors for the Respondent: Mr H McLaurin, Minter Ellison
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