Tharmarajah and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2022] AATA 3386

Tharmarajah and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 3386 (14 October 2022)

Division:GENERAL DIVISION

File Number:          2021/5777

Re:Nilojan Tharmarajah

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member D. J. Morris

Date:14 October 2022

Place:Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal –

(a)sets aside the decision of 6 August 2021 refusing the Applicant citizenship; and

(b)remits the matter to the Respondent for reconsideration with the direction that the Applicant satisfies s 21(2)(h) of the Australian Citizenship Act 2007.

........................................................................

Senior Member D. J. Morris

Catchwords

CITIZENSHIP – applicant is citizen of Sri Lanka – citizenship by conferral – applicant satisfied certain requirements – delegate decided not satisfied applicant was of good character – application refused – review by tribunal – two offences – seven years since offending – offences significant – sentence relevant – no other offending recorded – Tribunal applies holistic approach to conduct – decision under review set aside and matter remitted with direction

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 37
Australian Citizenship Act 2007 (Cth), Preamble, ss 21, 24, 52, 53
Crimes Act 1958 (Vic), ss 21A, 40

Sentencing Act 1991 (Vic), ss 5, 7

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Irving v Minister of State for Immigration, Local Government and Ethnic Affairs [1996] FCA 663

Lachmaiya and Department of Immigration and Ethnic Affairs; Re: [1994] AATA 27; 19 AAR 148

Secondary Materials

Department of Home Affairs – Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (Reissued 26 February 2021)

REASONS FOR DECISION

Senior Member D. J. Morris

14 October 2022

BACKGROUND

1. The Applicant, Mr Tharmarajah, is a citizen of the Democratic Republic of Sri Lanka. He was born in 1981 and is aged 41. He arrived in Australia in 2010 and was subsequently granted a category of visa in 2013 which entitled him to permanent residency.

2. In 2019 the Applicant applied for Australian citizenship by conferral. He declared that he had been convicted in February 2017 before the Magistrates’ Court of Victoria of two offences, namely Stalk another person (Crimes Act) and Sexual assault.  The Court ordered him to serve a Community Corrections Order (‘CCO’) for 24 months.

3. At the time of his application, Mr Tharmarajah noted that he had previously made an application for citizenship which was refused on the basis that he was still subject to the CCO. Section 24(6) of the Australian Citizenship Act 2007 (‘the Act’) prohibits the Minister approving an application until such a Court order has been completed.

4. On 6 August 2021, a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) refused Mr Tharmarajah’s application because the delegate was not satisfied that the Applicant was of good character under s 21(2)(h) of the Act.

5. The Applicant has brought this 6 August 2021 decision to the Tribunal for review, as he is entitled to do under s 52 of the Act.

   HEARING

6. The application was heard on 16 September 2022. Mr Bilal Amani of Amani Lawyers represented the Applicant. Mr Tharmarajah gave evidence and was cross-examined by Ms Sarah Thompson of HWL Ebsworth Lawyers, instructed by Ms Crishelle Lopez, representing the Minister. The Applicant generally answered questions in English, but the Tribunal was also assisted by an interpreter in the Tamil language.

7. The Tribunal admitted into evidence the following documents:

   (a)Statement of the Applicant dated 4 July 2022 (Exhibit A1);

   (b)Documents returned under subpoena from Victoria Police dated 31 March 2022 (Exhibit A2);

   (c)‘TD’ documents submitted by the Respondent in compliance with s 37 of the AdministrativeAppeals Tribunal Act 1975 (’AAT Act’) (Exhibit R1); and

   (d)Email from the Respondent’s solicitors dated 2 September 2022 with screenshot of date and time delegate refused the application (Exhibit R2).

8. The Tribunal also had regard for an Amended Statement of Facts, Issues and Contentions submitted by the Applicant (‘ASFIC’) and an equivalent statement submitted by the Respondent (‘RSFIC’).

   Preliminary matter

9. When the Respondent submitted the documents under s 37 of the AAT Act, the bundle contained a letter to the Applicant dated 6 August 2021 (GD, pp 13-14), notifying him that his application for Australian citizenship had been refused. Attached to that letter was a decision record (GD, pp 16-24) which was purportedly dated ‘24 June 2019’ (GD index). That date was, in fact, the date Mr Tharmarajah applied for citizenship, not the date of the decision to refuse his application. The decision record itself was neither dated nor signed.

10. On 25 August 2022, the Tribunal asked the Respondent’s solicitors for evidence of the date on which the decision to refuse the Applicant’s citizenship application was made; who made it; and an assurance that the decision-maker was a delegate appointed by the then Minister under s 53 of the Act.

11. On 2 September 2022, the Respondent advised that the delegate who made the refusal decision was appropriately delegated under s 53 of the Act. The Respondent also advised that the decision record was created on 6 August 2021 and attached to the letter of the same date notifying the Applicant of the refusal. The Respondent provided the name of the delegate and a screenshot from the Department of Home Affairs (‘the Department’) recording when the refusal decision was ‘created’ and entered into the Department’s system.

12. The Tribunal made the point during the hearing that the fact that a covering letter sent to an applicant advising him or her of the outcome of a decision contains a date and name of a departmental officer is not proof that the same person made the decision. The delegate was exercising a power conferred by the Minister under the Act, and the decision record itself should have been signed and dated by a person delegated to exercise that power. In departments, covering letters are frequently sent by persons other than the person who made the delegated decision. The power of the Tribunal to review the decision to refuse Mr Tharmarajah becoming an Australian citizen under s 24 of the Act is conferred by s 52(1)(b) of the Act. It logically follows that the Tribunal should be satisfied that the decision under s 24 was properly made.

13. Having been provided with the additional material by the Respondent, I am satisfied that the decision the Applicant has brought is reviewable under s 52 of the Act.

    APPLICANT’S CONTENTIONS

14. The ASFIC submitted that the question before the Tribunal is whether Mr Tharmarajah is of good character for the purposes of Australian citizenship. The ASFIC noted that the reason the delegate was not satisfied the Applicant was of good character was because of the two convictions imposed at the Magistrates’ Court in February 2017.

15. The ASFIC submitted that the Applicant is of good character because:

    (a)There are no other Court matters or previous findings of guilt or convictions against Mr Tharmarajah either before or after the two matters of February 2017;

    (b)The Applicant’s ‘general reputation’ is supported by character references provided to the Department; and

    (c)Enough time has passed to establish a pattern of good behaviour, which supports that Mr Tharmarajah is of good character.

    RESPONDENT’S CONTENTIONS

16. The Respondent submitted that the Applicant does not satisfy the good character requirements of s 21(2)(h) of the Act because the offences he committed are of a serious nature.

17. The Respondent submitted that sexual assault is considered to be both a serious crime and a crime of violence. The RSFIC submitted that the Applicant pleaded guilty to the charges, which involved an incident in which he watched his stepdaughter (at the time, aged 18) in the shower. This founded the first charge. When she approached him about his conduct, he grabbed her breast. This founded the second charge.

18. The Respondent noted that Mr Tharmarajah has no other offences against his name but submitted that the imposition of a 24-month good behaviour bond suggests that the offending was considered significant. The Respondent conceded that the Applicant had completed the requirements of the bond, including undertaking a mental health assessment and treatment as required, but submitted that the bond (by which the Tribunal understood the Respondent to mean the CCO) was only completed in February 2019. The Respondent submitted that insufficient time has passed to establish that the Applicant is now of good character.

19. In respect of the several character statements submitted by the Applicant, the Respondent submitted that the undated statement of Mr SK (TD, p 121) does not indicate that the author was aware of the Applicant’s offending. The statement of Mr JCM dated 15 July 2021 (TD, p 122) did not discuss the Applicant’s offending or make any comments on Mr JCM’s view of his character. The statement of Mr KN dated 4 May 2021 (TD, p 129) indicated that Mr KN did know of the offences and noted he was remorseful, but the Respondent submitted it was unclear whether the author knew the nature of the offences. Finally, the statement of KS dated 2 May 2021 (TD, p 130) refers to the Applicant being well-behaved, friendly, and hardworking, but does not indicate that KS was aware of the offending.

    APPLICANT’S ORAL EVIDENCE

20. Mr Tharmarajah said he came to Australia in 2010, by boat as a refugee. He said he currently has permanent residency, has bought a house and is in employment. He said he obtained permanent residence ‘roughly five or six years ago’.

21. In terms of his employment, the Applicant said he had worked in a few different jobs in Australia. He said he worked for a major car company for four years packing parts. He also worked in a food factory. He told the Tribunal that, at present, he is working for a tile company as a forklift driver, a job he has held for about four years.

22. Mr Tharmarajah said he met his wife in an immigration detention centre when he first arrived, and they have been together ever since. He said they married four years ago. They do not have any children, but she has a daughter from an earlier marriage.

23. The Applicant said he initially applied for Australian citizenship, but it was refused because he was still completing his CCO. He said the CCO lasted for two years and required him to report twice a month.

24. The Tribunal asked the Applicant to say in his own words why he had the CCO. He responded: “There was an incident that took place at home.  My wife has a daughter through her previous marriage. An argument took place, and she [i.e., the stepdaughter] called the police. While she was taking a bath, she said I watched her and [later] touched her.”

25. The Tribunal clarified that by ‘bath’ the Applicant meant a shower. He said that after the incident, his wife asked him to go and stay somewhere else for six months or so, which he did.

26. Mr Tharmarajah agreed that he pleaded guilty when the matter came to Court. He said it was listed for Court after he had given a statement to the police. Mr Amani noted that in the statement, the Applicant had said that he did watch his stepdaughter in the shower. He responded: “Yes, I accepted [guilt] because there was a chance created accidentally.”

27. He was asked what he meant by ‘accidentally’. He responded: “At that house, if I was in one area, you can see the glass of the shower. You can’t see clearly, but you can see a figure.”

28. Mr Amani noted that the Court also found Mr Tharmarajah touched his stepdaughter on the breast, which founded the offence of sexual assault. The Applicant responded: “After the shower, she came out. We had a verbal argument. I held her hands. I was saying nothing happened; maybe I accidentally touched somewhere.”

29. The Applicant was asked what the argument was about. He responded: “She said ‘you were watching me’. I said, ‘no, it was accidental because of the position where I was’. Her mother was not home at the time. She wanted to run away, that is why I held her hand.”

30. The Tribunal asked Mr Tharmarajah whether he accepted he sexually assaulted his stepdaughter by touching her. He responded, “Yes”. He said that when he was holding her, he did not know whether his hand had touched her breast, but it might have, which is why he accepted the charge.

31. In respect of the CCO, the Applicant was asked whether he was required to undertake any voluntary service or other obligation. He said that he was asked to meet the corrections officers twice or thrice a month, which he did for 24 months. The Tribunal pressed Mr Tharmarajah on whether he was required by the terms of the CCO to do certain hours of work or a course. He said he was not required to do any course, and he said he told the people supervising the order that he would do voluntary work if required. He told the Tribunal he was not asked to do any such work.

32. The Applicant confirmed he has never been to Court on any other occasion in Australia or before he arrived in this country.

33. The Applicant was asked why he should be found to be of good character. He responded: “My ambition is to start jewellery work, a traditional job as a goldsmith. If I want to open a shop, I need to be able to travel. I have had trouble with my shoulder from lifting tiles; it is not easy to find another job.”

34. Under cross-examination, Mr Tharmarajah said he accepted the facts that led to the convictions being correct. He agreed that the offences were serious offences. He agreed that he was the subject of a Family Violence Intervention Order (‘IVO’) taken out in 2015 by his stepdaughter, which Ms Thompson noted was made by consent without any admission to allegations made.

35. The Applicant agreed that the term of the IVO was from December 2015 to December 2016 and that it included a requirement that he not approach his stepdaughter during this period. He said that he decided to leave the house and live elsewhere for six or seven months, rather than his wife and stepdaughter having to find new accommodation. After that period, the stepdaughter took her own flat, and he moved back in with his wife.

36. Ms Thompson asked Mr Tharmarajah whether he was ever considered for a sex offender treatment programme. He said he did not believe so, but during the period of his CCO, a counsellor visited several times, which he believed was organised by the Court.

37. Ms Thompson asked the Applicant about a Form 80 he completed in connexion with his citizenship application (TD, p 169). He agreed that he ticked the box ‘no’ when asked if he had a conviction and ‘no’ when asked if he had a partner. The Applicant agreed at the time he had the convictions and was married. He said that the form had been translated to him, and he signed it.

38. In respect of the testimonial from Mr SK (TD, p 121), the Applicant told the Tribunal that Mr SK was his employer at the car company where he worked and knew of his Court appearances because he had to give him time off to attend court. He said Mr SK also knew about the family incidents because the Applicant’s wife was employed at the same place.

39. In relation to the letter from the mental health social worker, Mr JCM (TD, p 122), the Tribunal noted that Mr JCM wrote, on 15 July 2021:

    [The Applicant] came to my care post referral from GP in the year 2017. He was experiencing depression and anxiety related with relationship issues and struggling a lot to cope with his stress in connection with court cases as well. He was consuming a lot alcohol to cope with his ongoing stress. He reported that now he stopped drinking habit and behaving well with his family and engaged with his full-time job.

40. Ms Thompson noted that Mr JCM said the Applicant came into his care after a referral from his general practitioner, but Mr Tharmarajah had suggested he saw him as part of his CCO.  He responded: “I didn’t know properly because whenever he came to my house, he talked of the CCO, so I thought they sent him”. He said he continued to see Mr JCM after his CCO, and Mr JCM came to see him and his wife at their home.

41. Mr KS wrote on 4 May 2021 (TD, p 129) that he has been a refugee resettlement officer for eight years and is an Australian citizen. He wrote:

    I was informed about the applicant’s family related offences in the past. I knew that he was going through a very difficult time personally, and I had advised him to separate himself from anyone and anything that are negative influence on his life.  [The Applicant] has been remorseful and since then he has been a man of good characters. I have also advised him to have a health relationship with his family and to spend quality time with them.

    Since then [the Applicant] has been having a good relationship with her family members and showing more mutual respect towards them. Now he always speak very fondly to his wife and other family members….

    I strongly believe he is a reformed man. [The Applicant] understand his past mistakes and he has been taking steps to be a man of good character.  I will continue to be involved with him personally and completely trust him to spend time with his family. I look forward to meeting him and his wife soon.

42. In relation to Mr KS, the Applicant said he had known him for seven or eight years and spoke to him regarding retaining a lawyer for his case. He said that he told Mr KS that he had had a domestic violence problem and six months’ separation, but Mr KS did not know the specific nature of the convictions.

43. Ms Thompson asked Mr Tharmarajah whether he considered himself to be of good character because the one incident that led to the two convictions occurred seven years ago, to which he responded “Yes”. He agreed he was subject to an IVO for one year and a CCO for two years.

44. In answer to direct questions from the Tribunal, the Applicant said he had owned a jewellery shop in Columbo before he came to Australia, and his vocation was as a goldsmith. In respect of his stepdaughter, Mr Tharmarajah said she was now married, and two or three weeks before the hearing, she and her husband visited her mother with some food, as at the time, his wife was isolating with Covid-19. The Applicant said he did not speak to her during the visit. When asked by the Tribunal whether their relationship broke down after the shower incident, the Applicant agreed that it had.

    LEGISLATIVE SCHEME

45. Section 21(2) of the Act sets out the general eligibility requirements for citizenship. The Minister (or his delegate) must be satisfied that the person is aged 18 or over at the time of the application (s 21(2)(a)); is a permanent resident (s 21(2)(b)); satisfies the general residence requirement (s 21(2)(c)); has sat a test approved by the Minister indicating they understand the nature of the application, possess a basic knowledge of English and have adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship (s 21(2A)); and is likely to reside, continue to reside or maintain a close and continuing relationship with Australia (s 21(2)(g)). The delegate found that the Applicant satisfied all these requirements except for the last, which was not assessed.

46. Section 21(2)(h) provides that the Minister (or, in this case, the Tribunal) must be satisfied that the person is of good character at the time of the Minister’s decision. The time period is important, because the Tribunal must make a contemporary assessment of Mr Tharmarajah’s character now, not at the time he applied for citizenship in 2019 or when it was refused by the delegate. It was the requirement under s 21(2)(h) that the delegate found the Applicant did not satisfy. The consequence was that the application was refused under s 24(1) of the Act, which requires that the Minister must approve or refuse a person becoming an Australian citizen. It is important to note that there is no provision for putting an application to one side until a requirement is met; the Parliament has stipulated that an application must be approved or refused.

1. The Tribunal does not have the power to confer citizenship. If the Applicant is successful, the refusal decision would be set aside with a direction to the Minister that Mr Tharmarajah satisfies s 21(2)(h) of the Act. A Minister’s delegate would then need to go on to consider the remaining requirements for Australian citizenship by conferral.

   The concept of ‘good character’

2. The Courts have considered the term “good character” on several occasions, especially in relation to the character provisions in the Migration Act 1958. A leading case is Irving and Minister of State for Immigration, Local Government and Ethnic Affairs [1996] FCA 663 (Davies, Lee and R. D. Nicholson, JJ). In that case, Lee J relevantly said:

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

3. The case of BOY19 v Minister for Immigration and BorderProtection [2019] FCA 574 related to the character provisions relating to citizenship by conferral. O’Bryan J referred to previous judgments about the term “good character” in the Migration Act and then said, at [87] to [88]:

   As discussed earlier, the phrase “good character” refers to the enduring moral qualities of a person and not to their physical or mental attributes or abilities. The expression does not have a fixed and precise content and necessarily imports a discretionary value judgment informed by the subject matter, scope and purpose of the Act. The expression is concerned with moral qualities that are regarded as a necessary concomitant of Australian citizenship.

   Consistently with Chapter 11 of the Citizenship Policy 2016, respect for the Australian Government and the laws of Australia, and respect for the institutions of government including governmental departments, is consistent with being of good character in the statutory sense. Such respect can be characterised as a moral quality that is relevant to citizenship. Conversely, disrespect for the Australian Government, the laws of Australia and governmental department reflects adversely on a person’s character in the statutory sense.

4. In Re: Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27 (‘Lachmaiya’); 19 AAR 148, Deputy President McMahon said, at [31]:

   The Macquarie Dictionary defines character as “1. The aggregate of qualities that distinguishes one person or thing from others; 2. Moral constitution, as of a person or people; 3. Good moral constitution or status; 4. Reputation; 5. Good repute; 6. An account of the qualities of peculiarities of a person or thing.”  In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had for the purpose of the legislation.

5. The Department has issued a set of Citizenship Procedural Instructions (‘CPIs’) to assist officers of the Department considering applications. The Tribunal should give due regard to the CPIs because to do so promotes consistency in decision-making. However, the CPIs are not a legislative instrument and have no standing other than as a departmental manual.  Where the contents of a CPI are inconsistent with the Act, the Act of course must prevail.  Equally, where applying a CPI might lead to an illogical or unreasonable outcome, it should not be applied.

6. The relevant part of the instructions is CPI 15 – Assessing Good Character under the Act.  CPI 15 contains the following statement: ‘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 and character.’

7. CPI 15 then goes on to pose various questions that should be considered when assessing an application. The questions and the responses, as relevant to the Applicant on the information before the Tribunal, are as follows.

   General conduct

8. Is the applicant a risk to national security? There is no evidence before the Tribunal about this. If the decision is set aside with the direction that Mr Tharmarajah satisfies the good character requirement, a later part of the assessment process considers whether there is any adverse security information relevant to an applicant.

9. How has the applicant behaved in their interactions with government officials?  There is limited information on this. The Applicant consented to an IVO on the basis, as the Respondent conceded, of no admissions of improper conduct. The IVO lasted for one year and was not renewed. With regard to the two offences of which he was convicted, the Applicant said he was interviewed by the police and made a statement admitting the facts. He pleaded guilty before the Court. There is no evidence before the Tribunal that he did not comply with the reporting requirements of the CCO imposed by the learned Magistrate.

10. Has the applicant debts to the Commonwealth? There is no information before the Tribunal about this.

11. Does the applicant have associations of concern? The Respondent did not contend that this was relevant to the refusal decision. 

12. Is the Applicant a family member of a person who has committed an offence? It is immediately obvious that this is a perilous part of the CPI to take into account, because it barely suggests that a person might be not of good character purely based on ‘guilt by association’.  The Tribunal considers that fact, alone, could never properly be a basis for a finding that someone did not satisfy s 21(2)(h) of the Act.  In any event, there is no evidence of any offending by any member of the Applicant’s family.

    Offending conduct

13. Were offences declared? Are there any ongoing obligations such as a good behaviour bond? The Applicant declared his offences in his citizenship application form (TD, p 107) and attached a document headed ‘Order Completion Report’ dated 25 February 2019 stating that he had satisfactorily completed the requirements of his CCO (TD, p 139).

14. Was the victim of the offending a child, elderly, disabled or a person who was reliant on, or placed trust in, the applicant? The victim of the offending was the Applicant’s adult stepdaughter. The victim was not elderly nor, on the information before the Tribunal, disabled. It would be fair to say that, in the context of the living arrangements at the time, the Applicant’s stepdaughter was not reliant on Mr Tharmarajah but as a member of the household she axiomatically placed trust in him to be safe, trust which was breached when he looked at her through the window while she showered.

15. Is there a pattern of criminal behaviour?  The national coordinated criminal history check produced by the Australian Criminal Intelligence Commission dated 23 March 2021 (TD, pp 142-143) details only the two convictions of 14 February 2017. No other offending is recorded. There is, therefore, no pattern of criminal behaviour.

16. Was the offence premeditated? It would appear on the material before the Tribunal that the offences were not premeditated. The police report for the hearing in relation to the IVO in December 2015 (TD, p 131) refers to the stepdaughter saying to the police officer that in “approximately July 2015”, she “caught [the Applicant] watching her in the shower and that when she approached him about this, he grabbed her on the breast”. Mr Tharmarajah told the Tribunal that him touching the victim occurred soon after the shower incident when he said she was going to run away, and he said he sought to stop her because her mother was not at home at the time. He conceded he touched her breast. There is no information from the Court to either corroborate or dispute this version of the events, but the Tribunal may not, and does not, go behind the convictions – made in each case on a guilty plea.

    CONSIDERATION

17. The Tribunal must weigh the known facts in coming to an assessment about whether it is satisfied the Applicant is now of good character. As the CPI remarks, this involves a holistic approach to all his conduct (i.e., taking all aspects into account). In doing so, I also adopt the approach suggested by Deputy President McMahon in Lachmaiya, where he said that, in order to determine whether a person has an aggregate of good qualities, rather than a bad one, regard should be had to the purpose of the Act. In that case, Mrs Lachmaiya was the review applicant and was sponsoring her husband for a visa to enter Australia. The facts included that the visa applicant had admitted he obtained a false Fijian passport to travel to Australia, had lied in his application for an Australian visa, had induced someone else to lie about how they knew him, lied about the circumstances of meeting his wife and had given other false information to the Department. The facts in this case are significantly different. 

18. The Preamble to the Act sets the framework for the conferral of Australian citizenship. It represents full and formal membership of the Australian community, involving reciprocal rights and obligations, uniting all Australians while respecting their diversity. It includes the requirement that citizens uphold and obey the laws of Australia.

19. In this case, certain facts favour deciding that Mr Tharmarajah is of good character as of the time of this decision. He has been gainfully employed in Australia for at least the last ten years. He told the Tribunal he had bought a house. He has paid taxes and thereby contributed to the national good. There is no evidence that he has put false information before the Department, although the Tribunal was troubled by some incompleteness in his citizenship application regarding his wife.  The Respondent agreed this was regrettable but said it was effectively remedied by later information he provided. Nonetheless, it should not have been incomplete in the first place. Incomplete information is apt to mislead and can create a false impression to the officer considering the application.

20. Mr Tharmarajah has provided character statements from several friends and former employers. They attest to good qualities, including that he is ‘well-behaved and ready to help others’ (TD, p 130) and a ‘reliable and efficient employee; punctual and a keen learner; trustworthy and could lead a small team’ (TD, p 121). The weight of these testimonials is somewhat affected where the Applicant agreed in oral evidence that some did not know the precise nature of the convictions. Nonetheless, they do carry some weight as providing a view of what these people think of the Applicant in their daily dealings with him.

21. There are also some factors in the mix that go against a finding of good character. The Tribunal agrees with the Respondent that the two convictions relate to serious offences. The Tribunal notes that s 40 of the Crimes Act 1958 (Vic) (‘Crimes Act’) provides, in relation to the crime of Sexual Assault, a maximum penalty of ten years’ imprisonment. In relation to the offence of Stalk another person (Crimes Act), in the absence of information on the specific basis of the charge from the Court, other than it was under s 21A(1) of the Crimes Act, the Tribunal assumes that the specific provision was s 21A(2)(g)(ii) of the Crimes Act. That provides that ‘stalking’ encompasses acting in ‘any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety or that of any other person’. The maximum penalty for Stalk another person is ten years’ imprisonment.

22. The circumstances of the offending bear examination. It would seem on the papers that the Applicant’s stepdaughter initially wanted the matters dealt with inside the family but became dissatisfied that her mother had not taken whatever action she thought was required. A relevant LEAP Victoria police report dated 21 December 2015 relating to a call to the Applicant’s house because of an argument was produced under summons and tendered by the Applicant. It relevantly states:

    The AFM’s [affected family member’s] daughter is unhappy with her mother’s handling of this historical incident and no longer wants to reside at the house as a result. This incident appears to possibly be the cause of issues within the relationship. Both AFM and respondent stated that there was a verbal argument tonight over AFM returning late and both deny any assaults, violence or threats of violence. AFM’s daughter is going to reside with friends until move out completed.

23. From this, it would seem that the shower incident had been a source of rumbling friction between the Applicant, his wife, and his stepdaughter since it occurred in July 2015. It also seems clear from the police report that the stepdaughter wanted her mother to deal with the matter, but having not received satisfaction, she decided to raise it with the police some five months later. The Applicant accepted he had done wrong when interviewed by the police and acknowledged his guilt before the Magistrate.

24. Both incidents happened on the same day, there were pleas of guilty, and there has been no subsequent allegation or finding of guilt. In these circumstances where the offending was not denied, my view is that the period to assess subsequent conduct should start in July 2015, not when the matters finally came before the Court in February 2017. I find that the offending involved a breach of trust by the Applicant to a family member, one that it appears has left a significant rift between Mr Tharmarajah and his stepdaughter.

25. I must also look at the view the Court took of the offending. The learned Magistrate had a range of tools available: see s 7 of the Sentencing Act 1991 (Vic) (’Sentencing Act’). For example, the matters could have been found proven but dismissed. A conviction could have been recorded, not no additional penalty imposed. A conviction or not recorded and penalties ranging from a fine, a CCO, a suspended or a custodial sentence of up to ten years’ imprisonment on each count could have been imposed. With regard to the CCO, a wide range of conditions can be imposed, including community service. It is relevant that the offender’s ‘previous character’ is a factor that must be taken into account by the judicial officer (see s 5(2)(f) of the Sentencing Act).

26. In this case, a CCO was imposed with reporting obligations, a requirement for a mental health assessment and consideration as to whether the Applicant should be placed on the Sex Offender Register. Mr Tharmarajah’s evidence was that he was required to report to officers regularly, but no other requirements other than the mental health assessment (which he underwent) were, to his knowledge, imposed. There is a lacuna in the information before me because the assessment report referred to in the Court documents was not provided in response to a summons from the Magistrates’ Court. But the Tribunal does have evidence that the CCO was satisfactorily completed (TD, p 139).

27. There is a reference (TD, p 138) that the Applicant should be considered for the sex offender treatment programme, contingent on a report by Mr Ian Joblin (a forensic psychologist). Mr Joblin’s report was not before the Tribunal. The parties did not have a copy of it.  At the end of the hearing, Mr Amani offered to try and obtain a copy, but on 21 September 2022, advised the Tribunal he had been unable to. In the absence of the report, I cannot draw any conclusions other than to note that the Court did not direct the Applicant, then or later, to undertake a sex offender treatment programme. There is also no evidence that he was placed on the Register of Sex Offenders.

28. In his evidence, I conclude that the Applicant was confused, and that Mr JCM was the mental health worker he was seeing as referred by his GP, not by the Court.  Mr Joblin was the counsellor who the Court appointed and who came to see him at his home. The Applicant was obviously under the care of Mr JCM and being contemporaneously assessed by Mr Joblin, which is possibly why the confusion has arisen.  Mr Joblin’s report might have given the Tribunal more insight into the Applicant’s state of mind at the time, but that is only speculation.

29. I find on the evidence that the Court viewed the offending as serious but, as reflected in the penalty, not at the higher end of seriousness for offences of this nature. In neither case was a suspended or custodial sentence imposed, nor any onerous strictures included in the CCO. The only condition, apart from reporting, seems to be one aimed at being essentially beneficial to the Applicant, which was a mental health assessment by a forensic psychologist.   

30. I find the fact that the offending occurred more than seven years ago and the fact there is no evidence of any infractions of the law by the Applicant since that time (not even a traffic offence), supports a conclusion that this aberrant behaviour was isolated and not reflective of the general conduct or behaviour of Mr Tharmarajah. In saying this, I have had regard to some reports produced under summons and submitted by Mr Amani, but none of these reports led to any other police action. I acknowledge the actions the Applicant’s lawyer took in properly tendering these additional reports, to give the Tribunal a fuller picture.

31. Adopting the approach that the Tribunal should look at all the aspects of a person’s conduct to determine if he or she is of ‘good character’, I have come to this conclusion: (a) the two offences in 2015 were related and occurred in a single ‘incident’; (b) more than seven years have now passed since the offences; (c) there has been no pattern of like behaviour, nor any other recorded offending of any sort; (d) there has been no other general conduct brought to the Tribunal’s attention by either party that would be detrimental to a finding of good character. I note that the Applicant is involved in a small way in supporting local sports and his ambitions to resume the work he formerly did in Sri Lanka as a goldsmith (which I note was also his father’s vocation (TD, p 163)).  Taking all these factors into account holistically, the Applicant can now be objectively considered to be of good character.

32. On balance, I am satisfied to conclude that the Applicant is (now) of good character, such as to satisfy s 21(2)(h) of the Act. The consequence of that finding is that the decision before the Tribunal will be set aside. The matter will be returned to the Department for further consideration of the citizenship application.

    DECISION

33. Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal –

    (a)sets aside the decision of 6 August 2021 refusing the Applicant’s citizenship; and

    (b)remits the matter to the Respondent for reconsideration with the direction that the Applicant satisfies s 21(2)(h) of the Act.

80.     I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris.  

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

Associate

Dated: 14 October 2022

81.     Date of hearing:

82.     16 September 2022

83.     Advocate for the Applicant:

84.     Solicitors for the Applicant:

85.     Mr Bilal Amani

86.     Amani Lawyers

87.     Advocate for the Respondent:

88.     Ms Sarah Thompson

89.     Solicitors for the Respondent:

90.     HWL Ebsworth Lawyers