Torres and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 729

Torres and Minister for Immigration and Border Protection (Citizenship) [2015] AATA  729 (18 September 2015)

Division	General Division
File Numbers	2015/0875
Re	Robert Neil Torres
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT
File Numbers	2015/0881
Re	Santino Torres
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT
File Numbers	2015/0885
Re	Sander Torres
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin QC, Deputy President
Date	18 September 2015
Place	Sydney

The Tribunal affirms the decisions under review.

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

The Hon. Brian Tamberlin QC, Deputy President

CATCHWORDS

CITIZENSHIP – eligibility – application for father and dependent children – whether applicant father of good character – applicant found guilty of common assault in Australia – applicant father placed on good behaviour bond with no conviction – applicant marked no to question about past offences on citizenship application –  whether applicant father likely to reside in Australia or to maintain a close and continuing association with Australia – applicant father found not to meet criteria for citizenship – children's applications dependant on father's application – whether children likely to suffer hardship or disadvantage if applications were refused – decisions under review affirmed 

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24(1A)

CASES

Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664

SECONDARY MATERIALS

Australian Citizenship Instructions

REASONS FOR DECISION

The Hon. Brian Tamberlin QC, Deputy President

18 September 2015

1. These applications seek review of a decision of a delegate of the respondent dated 28 July 2014 refusing Australian citizenship to the applicants who are a father and two children. The children’s application is dependent on the outcome of the father’s application.

2. The issues before me are whether the Tribunal should be satisfied that the applicant father at the time of the decision is a person of good character and whether he is likely to reside or to continue to reside in Australia or maintain a close and continuing association with Australia if the application were to be approved.

3. The relevant legislation is found in the Australian Citizenship Act 2007 (the Act) and in the Australian Citizenship Instructions.

4. Under section 21(2) of the Act a person is eligible to become an Australian citizenship if the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application and is likely to reside in Australia or to maintain a close and continuing association with Australia if the application were to be approved. Under s 24 (1A) the Minister must not approve a person becoming an Australian citizen unless the person is eligible to become an Australian citizen under section 21(2).

5. In the present case the respondent submits that neither of these requirements are satisfied by the applicant father and therefore the applications for citizenship should be refused.

   BACKGROUND

6. The applicant father was born in the Philippines and the first child was born in the Philippines in 2007 and the second in Singapore in 2010. In July 2010 the applicant first entered Australia and on 20 January 2011 was granted a permanent visa. The children were granted permanent dependent visas.

7. On 17 July 2013 the father was convicted of a common assault in an incident with his wife but no conviction was entered although he was found guilty and he was subject to a good behaviour bond for 12 months.

8. In July 2014 the father applied for Australian citizenship for himself and the two children but in his application he stated that he had “not been convicted or found guilty of any offence”. This was incorrect in that although he had not been convicted he had been found guilty of the offence of common assault and placed on a 12 month good behaviour bond. The delegate of the Minister refused the fathers application for citizenship on the basis that he was not satisfied as to his good character and the children’s application was refused because they do not meet the policy guidelines for children under the age of 16.

   CHARACTER

9. The applicant is a 36 year old married man with two young children. In July 2013 the magistrate sentenced him in respect of a domestic violence offence of common assault against his wife and found the offence proved but deemed it expedient not to inflict any punishment and accordingly dismissed the charge on condition that the applicant enter into a bond to be of good behaviour for a period of 12 months.

10. Under section 10 of the Crimes Sentencing Procedures Act 1999 where a court finds a person guilty of an offence it may order that the relevant charge be dismissed without entering a conviction.

11. The circumstances as set out in the sentencing remarks of the Magistrate noted that the applicant was of good prior character with no previous criminal history and a credible work history. The offence was committed in a moving motor vehicle when the couple’s son was present in the rear passenger seat. There was an argument in the car about domestic matters and after insulting his wife he pushed her face while she was driving the car. There was a struggle involving the child before the applicant let go and the wife walked away with the child seeking help. The applicant pleaded guilty to the offence.

12. The Magistrate noted that the offence was in respect of domestic violence. She accepted that the plea demonstrated contrition and that the wife was not harmed, although distressed. She noted that the applicant had referred himself to psychologist who diagnosed him with some anxiety and depression arising from domestic discord arising from the fact that the defendant’s mother had been living with them. The Magistrate found that the offence was committed out of anger during a verbal altercation in that it was very short lived. She also noted a number of subjective features and personal background details by way of mitigation. The incident was quite spontaneous and the offence was based on one contact and she placed the offence at the “lower range” of the offence category of seriousness. She considered that risk of reoffending was low and that the applicant was truly remorseful. Without seeking to minimise the seriousness of the offence she found that it was a reasonably minor incident of the offence category.

13. The applicant gave evidence and was cross-examined in some detail before me. He produced a range of excellent character references and provided evidence from his wife to the effect that apart from a couple of weeks after the incident during which they separated they have been living happily together in only a harmonious relationship since the time. I accept the evidence of the applicant’s wife and of the other witnesses testified as to his excellent character. I accept that he is genuinely remorseful and he has taken objective steps by way of consulting and seeking guidance which demonstrates remorse and indicates that the behaviour in respect of the offence is highly unlikely to occur.

14. The respondent relied on the fact that in his application for citizenship the applicant answered “no” to a question as to whether he had been convicted of or found guilty of any offence. The applicant said that he misunderstood the question and had regard only to the inquiry as to conviction. It is true he had not been convicted but the legal consequence of the Magistrate’s order was that he had been found guilty of the offence in that it had been found to be proved. I accept the explanation of the applicant as to this being an oversight in answering this question and I do not think that it bears materially on the question of his good and enduring moral characteristics. It was a momentary oversight explicable by a hasty reading of the question.

15. I have had regard to the above circumstances and to the requirements as set out in the Instructions relating to good character and I am satisfied that the applicant is of good character within the meaning of section 21(2) of the Act.

    RESIDENCE

16. However, I am not satisfied having regard to the evidence and the relevant legislative provisions, including the Instructions, that the applicant has shown that he is likely to reside or continue to reside in Australia or to maintain a close and continuing association with Australia.

17. In Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 at 31 the Tribunal said of the expression “likely to reside in Australia”:

    It cannot mean “likely to take up residence in 18 months or 2 years time” or “likely to reside some time in the indefinite future if economic conditions permit … and if a suitable job can be found.” … [provision] indicates that the minister must be satisfied that the applicant is likely to reside in Australia immediately or very soon after being granted a certificate of Australian citizenship.

18. The applicant has not committed himself to any specific or definite plan to return to Australia. In particular the applicant does not have a citizen spouse or de facto partner nor are his children Australian citizens. He does not have any extended family in Australia and has not made any significant return visits to Australia since leaving although he had previously resided in Australia with his family for approximately four years. I am satisfied that subjectively both he and his wife would like to reside in Australia and that at some indefinite time in the future they intend to return to Australia from the United States where they presently residing. However this general intention is not backed up by any significant or substantial present plan of employment or his ownership of significant assets or property in Australia. He has some bank accounts and superannuation assets here. He and his wife have left Australia and remained overseas for a considerable time. They have no doubt established contacts and attachments to the United States since their departure. There is no employment arrangement in place in Australia or proposal to acquire property or to reside in any particular part of Australia. When they completed their outgoing passenger cards for the United States they indicated an intention to remain outside Australia for three years which is a significant period outside Australia.

19. The evidence provided by the applicant is not sufficient to establish a sufficiently specific or close connection, intention or likelihood of residence is in Australia to satisfy the requirements of the Act and the Instructions. A generalised wish or desire to reside in Australia because it is an agreeable place to live which might materialise over the next year or so, is not in my view enough to establish the required degree of connection. Over the next year it is reasonably foreseeable that there is a prospect of the applicant remaining in the United States and obtaining further expertise and training. The applicant is currently residing in the United States on a 12 month contract and a temporary worker visa. The applicant sees this is a great opportunity and his intention is to learn everything you can from his work in “Silicon Valley”. Although the applicant states that he has a general intention to use his United States experience to establish an enterprise in Australia, there are no specific plans, financial arrangements or proposals presently on foot to implement this intention.

20. It may be that in the course of the next year or so the applicant could provide evidence of a firm intention to return and continue to reside in Australia and at that time any future application for citizenship based on such evidence could be reconsidered. However, at the present time and on the present evidence the evidence does not satisfy that there is a likelihood that he will reside or continue to reside or maintain a close and continuing Association of Australia if his application were to be approved.

21. For the above reasons the applicant does not satisfy the eligibility requirement in section 21(2) of the Act.

    CHILDREN

22. Under the Instructions the best interests of the child are to be considered as one of the  considerations when assessing the application. There is no evidence to suggest that refusing to grant the children the citizenship in this case would be inconsistent with their best interests since they are presently living in America with their parents.  Since I have taken the view that the applicant father’s application should not be approved, then in order to meet the requirements of the Instructions the parents would need to be Australian citizens or need to show they would suffer significant hardship or disadvantage if their applications were refused. The father’s application is refused for the reasons I have given above and there is no evidence that the children may suffer significant hardship or disadvantage. In particular, the children do not satisfy the requirements of the Instructions set out in paragraph 5.12.5. Accordingly, their applications should also be refused.

    DECISIONS

23. The decisions under review to refuse the applications are affirmed.

I certify that the preceding 23 (twenty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President

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

Associate

Dated 18 September 2015

Date(s) of hearing	4 August 2015
Date final submissions received	17 August 2015
Counsel for the Applicant	L Karp
Solicitors for the Applicant	KAH Lawyers
Solicitors for the Respondent	Clayton Utz Lawyers