Umer and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 1630
•6 June 2018
Umer and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1630 (6 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/2494
Re:Rizwan Umer
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:6 June 2018
Place:Sydney
The Tribunal affirms the reviewable decision of the Minister’s delegate, dated 7 April 2017.
...........................[sgd].............................................
Senior Member Linda Kirk
Catchwords
CITIZENSHIP – application for Australian citizenship – refusal of citizenship – whether applicant is of good character – citizenship policy – domestic violence – making false statements in citizenship applications – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Assafiri v Minister for Immigration and Border Protection [2014] AATA 35
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
HSXY and Minister for Immigration and Border Protection [2016] AATA 560
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sharma and Minister for Border Protection [2015] AATA 608Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Senior Member Linda Kirk
6 June 2018
INTRODUCTION
Mr Rizwan Umer (‘the Applicant’) was born in Pakistan in 1978 and first arrived in Australia on 9 February 2012. He currently holds a subclass XA-866 permanent visa granted on 3 May 2012.
The Applicant applied for Australian Citizenship on 10 February 2016 (‘the Citizenship application’) under section 21 of the Australian Citizenship Act 2007 (Cth) (‘the Act’).
The application was refused by a delegate of the Minister for Immigration and Border Protection on 7 April 2017 because they were not satisfied that the Applicant was of ‘good character’ at the time as required by s 21(2)(h) of the Act or that he satisfied s 24(6)(g) of the Act.
On 28 April 2017 the Applicant applied to the Tribunal for review of the delegate’s decision.
The matter was heard in Sydney on 27 and 28 February 2018. The Applicant attended the Tribunal hearing in person and was unrepresented. He was assisted by an Urdu interpreter.
LEGISLATIVE FRAMEWORK
The ‘good character’ test
The issue before the Tribunal is whether it is satisfied that the Applicant is of ‘good character’ in accordance with s 21(2)(h) of the Act which provides:
(2) A person is eligible to become an Australian citizen if he Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
Citizenship Policy
The term ‘good character’ is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy, which from 1 June 2016 replaces the policy guidance previously provided in Chapter 10 of the Australian Citizenship Instructions (ACIs), which was last published on 26 February 2015. From 1 June 2016, the ACIs detail the citizenship operational instructions.
The Applicant lodged his application for citizenship on 10 February 2016 before the introduction of the Citizenship Policy (when the ACIs were the applicable policy guidance). The Respondent made its decision, and the Tribunal heard and reserved its decision in this matter after the Citizenship Policy (ACP) was issued. In HSXY and Minister for Immigration and Border Protection [2016] AATA 560, Senior Member Cotter provided guidance on this matter at [12]:
[N]otwithstanding the introduction of the ACP, the ACIs remain in force and now detail the operational instructions for decision makers; the ACP and the ACIs operate side by side as policy and operational instructions. In the event of inconsistency with respect to policy guidance, the ACP is to be preferred.
In this case, there is no inconsistency between the ACIs and the Citizenship Policy in relation to policy guidance relevant to this matter.
The role of the Citizenship Policy is to provide guidance on the interpretation of the Act. The Tribunal is not bound to strictly apply the Citizenship Policy, as it is not law. As the Tribunal stated in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (6 November 1985) at [21]:
Policy is not law. A statement of policy is not a prescription of binding criteria.
However, policy should be given due and proper consideration and weight unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
The meaning of ‘good character’
In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of character in a citizenship application:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home … The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
There have been numerous Federal Court decisions on the meaning of good character and the application of the good character test. The classic exposition of the meaning of this term is found in the Full Federal Court decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422. Lee J said (431-432):
the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion ... 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 Citizenship Policy elaborates on “enduring moral qualities” as encompassing the following (at pages 145-146):
· characteristics which have been demonstrated over a very long period of time
· distinguishing right from wrong
· behaving in an ethical manner, conforming to the rules and values of Australian society
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship process.
Chapter 11 of the Citizenship Policy sets out a non-exhaustive list of ten “characteristics of good character”. A person of good character would relevantly (at page 147):
·respect and abide by the law in Australia and other countries
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
o providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
o concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
·not be violent ... not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
Mitigating factors
Clause 9.5.2 of the ACI sets out, inter alia, some of the mitigating factors that a decision-maker should take into account. So far as is relevant to this matter, those mitigating factors are:
(a) what is the length of time between the date of the offence(s) and the application for Australian citizenship;
(b) has the Applicant accepted responsibility and shown remorse for his conduct;
(c) what was the Applicant’s age at the time the offence(s) were committed;
(d) were there any extenuating circumstances, for example were the offences committed under duress or during periods of psychological disturbance;
(e) is there any evidence of the Applicant’s length of employment, stable family life or community involvement. References may be submitted from independent people such as employers attesting to the Applicant’s character and whether they support the application for citizenship.
The Citizenship Policy (at pages 149-150) provides guidance to decision-makers on weighing up all of the above in reaching a conclusion:
Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities. Decision-makers should place more weight on significant offences.
In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
owould a person of good character have behaved the way the applicant did
owhat is there to demonstrate that the applicant has upheld and obeyed the law
ohas the applicant behaved in accordance with Australia’s community standards
odoes the applicant share Australia’s democratic beliefs and respect its rights and liberties.
A decision maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case …
EVIDENCE BEFORE THE TRIBUNAL
Domestic violence offence
On 16 October 2015, the Applicant was convicted in the Blacktown Local Court of assault occasioning actual bodily harm and was sentenced to an 18 month good behaviour bond. The charge was recorded as involving domestic violence [T documents page 50].
At the Tribunal hearing, the Applicant was asked about the circumstances surrounding this offence. He said that on the day in question, 21 July 2015, he drove his daughter to a medical centre in Blacktown. At approximately 6:30pm in the evening, they were returning home and his wife, who was a passenger in the front seat of the car, became upset and aggressive. She was hitting herself and pulling her own hair. She said she wanted to throw herself out of the car and she was trying to open the car door. The Applicant tried to stop her from doing so while he continued to drive. In the process he believes he scratched her face with his nail causing a slight injury under her eye and her lip was bleeding. She started to call the police on her phone, and he said he would take her to the police station. She then calmed down and they made their way to the police station.
The Applicant was asked about a police report of the incident dated 21 July 2015 [Tender Bundle pages 11-12]. The report states:
Whilst driving towards to (sic) their Quakers Hill residence, the accused stated to the victim “It’s because of you I can’t contact my family. Because of your brother leaving my niece. It’s your family’s fault. Your (sic) just like your mother. A bad women (sic).” The victim felt upset and hurt by the accused (sic) statements towards her and as a result lightly pushed the accused on the shoulder in an attempt to make the accused stop. The accused stopped the motor vehicle on the side of Quakers Road, Quakers Hill. The accused turned towards the victim and using his hands hit the victim on the face. The victim closed her eyes in fear. The victim felt immediate pain to her facial area as a result. After a short time the accused stopped hitting the victim. The victim used her mobile phone to contact triple zero.
…
The accused and victim entered Quakers Hill Police Station and approached police. Police observed the victim to have a swollen bottom lip with blood oozing from the laceration sight, small laceration on her left cheek below her eye and minor red marks on her cheeks. As a result of the information provided by the victim, the accused was placed under arrest …
…
On arrival to the Police Station, the accused stated to Police he hit the victim three times with a closed fist which caused her to bleed however when Police conducted the electronically recorded interview the accused denied making such a statement. As a result of the incident the victim fears for her safety and is scarred (sic) of the accused especially when he becomes angry. The victim is scared that she will again be assaulted by the accused. As a result the accused has been charged with Assault occasioning actual bodily harm and served with a (sic) apprehended violence order.
When questioned about this report at the hearing, the Applicant denied telling the police on arrival at the police station that he hit his wife “three times with a closed fist”. He said he told police about their family problems which arose from the murder of his wife’s mother by his wife’s father.
In a Statutory Declaration dated 17 May 2016 [T documents page 57], the Applicant stated:
It’s almost more than 11 years past to (sic) our marriage and it didn’t happen in my all marriage (sic) life. This incident happened due to her mental health. But now she has recover (sic) from her mother’s death. I took her to (sic) overseas when her mother murdered. She has so many things in her mind. After the court order I always try to help her to recover her mental health.
The Applicant told the Tribunal that he accepted fault, or, in other words, took the blame for the incident and pleaded guilty to the offence as he wanted to save his family unit. He wants to improve his relationship with his wife and set a good example for his children.
Other domestic incidents
The Applicant was asked whether this was the only incident involving violence against his wife. He said that in August 2015 he returned to Pakistan for four weeks because his uncle was sick and later passed away. His wife was upset that he went overseas. On the morning of his return home from the airport, she called the police before he was able to enter the house. He was left outside with his suitcase until two police arrived at the house. He was told by the police that he was prevented from going into the house. He does not know what his wife said to the police. They asked him if he had harmed his wife and he said that he had not. After this incident an Apprehended Violence Order (AVO) was issued against him.
The Applicant was asked about a police report of an incident on Saturday 19 September 2015 at 4:30pm [Tender Bundle pages 7-8]. The report refers to an AVO imposed against the Applicant on 29 July 2015 at Blacktown Court. It continues:
Police spoke with the Defendant out the front of his property and he informed police that he had a verbal argument with [his wife] so he parked (sic) his bags and left the house. Police spoke with [the Applicant’s wife] and she informed Police that the Defendant has assaulted her by grabbing her around the mouth area and squeezed her cheek area. At the time of the alleged assault she felt pain around her mouth area.
…
[the Defendant] denied assaulting [his wife]. Due to conflicting version police did not charge the Defendant and are making an application to change the AVO so the Defendant cannot reside at [their home]. Police are at (sic) the belief that if the Defendant is removed from the property the verbal arguments and the alleged assaults will cease. [The Applicant’s wife] has fears for her safety when the Defendant is present in the house. The verbal arguments are escalating and the current conditions in the AVO are not helping the family life within the house.
The Applicant told the Tribunal that this reported incident was the same incident that he had earlier described as occurring on the day he returned home from Pakistan. He was asked whether he was aware of the AVO issued on 29 July 2015 which required that he was not to go within 100 metres of the house. He said he was aware of this AVO.
The Applicant confirmed that he appeared in Court on 16 October 2015 and was convicted of the offence of assault and sentenced to a Good Behaviour Bond for 18 months [Exhibit A3]. He said that he returned home after this sentence was imposed because the good behaviour bond replaced the AVO.
The Applicant was asked about a letter he wrote and signed dated 2 July 2017 [Exhibit A1]:
Since I have been in Australia, I have never been charged with any kind of offence. This particular issue occurred in October 2015 for which I have already been charged and I have successfully passed the time period of my (sic) all charges. Yasmeen and I were living happily and peacefully for 13 years except this difficult time which we faced in October 2015. I am guilty for my action. What ever happened was unintentionally (sic). I was not fully aware of the laws at the time and for that the reason (sic) I didn’t appeal when I was being charged because all I wanted was to continue my married life.
The Respondent’s representative asked the Applicant why in this statement he refers to the “particular issue” as occurring in October 2015, when the offence for which he was charged and convicted happened in July 2015 and the later domestic incident was in September 2015. The Applicant said he loves his wife and family and he wants the family to be together.
Failure to disclose offences
The Respondent contends that the Applicant failed to disclose his offences in the section headed ‘Part F – Good character and criminal offences’ of the citizenship application he submitted on 10 February 2016. Question 35(a) in the citizenship application asks whether the applicant has “been convicted of, or found guilty of, ANY offences overseas or in Australia”. The Applicant’s answer to this question was “No”. Question 35(d) asks whether the applicant is “presently under a probation order, good behaviour bond … in Australia?” The Applicant’s answer to this question was “Yes”.
The Applicant told the Tribunal that he was assisted in completing his application form by a cousin/family friend who was visiting from overseas and who he met in the library. This person filled out the application form for the Applicant and did not ask him about his criminal history. He did not read the application before signing the section headed ‘Part L – Declaration’.
Evidence of the Applicant’s Wife – Mrs Yazmeen Rizwan
The Applicant’s wife, Mrs Yazmeen Rizwan, gave evidence in person at the hearing and provided a statement dated 5 July 2017.
In her statement, she said that the Applicant has been a loving and caring husband and father to their children and “[w]e have never had any serious issues since we are (sic) married”. The statement continues:
[This] issue happened due to a family disturbance, when my mother passed away in 2014. After that I became very disturbed due to that incident. But since then, we have been able to fully resolve our issues and now our circumstances are totally fine and we are living a happy life now.
I can assure you my husband is a good moral character person and also very hardworking. He has never ever been involved in any kind of trouble.
Mrs Rizwan told the Tribunal that on 10 August 2014 her father violently murdered her mother. After this she was really depressed and she “hated men”. She visited Pakistan in September 2014 for four to five weeks after this incident. Her father is now in prison.
She was asked about what happened on 21 July 2015 which led to her husband’s conviction for assault occasioning actual bodily harm on 16 October 2015. She said that when they were in the car leaving the medical centre, her sister phoned her from Pakistan. She shouted at her husband and he tried to calm her down. She was trying to hurt herself and attempted to open the car door and her husband tried to stop her. She hit her head on the dashboard and the car door and sustained injuries. She then tried to call the police.
She was asked about the police report of the incident on 21 July 2015 [Tender Bundle pages 11-12] and she said that the account of the event she gave to the police was untrue. The reason why she told this story was because she “didn’t trust anyone” and she “assumed that her husband would treat her the same as her father did her mother”. At this time she was depressed and this is why she reacted this way. She “made up stories in her mind”. She remembers making the statement to the police and signing it, but she does not remember reading it before she signed.
Mrs Rizwan was asked whether she gave evidence against the Applicant when he appeared in court on the assault charge. She said she did do so and she “maintained the story” before the Judge. She did this even though she was aware that the Applicant would be convicted of the offence. She was asked whether she gave evidence on the Quran but she could not remember.
She told the Tribunal that while she was suffering from depression she sought treatment from a psychologist. But she did not tell the psychologist she was harming herself nor that she had made up a story about her husband assaulting her. The only person she has told that she fabricated this story is her sister in Pakistan. She stated that she is now telling the Tribunal the truth. She only maintained the false story because she wanted to stay away from the Applicant for a while. She was fearful of him because of her state of mind at the time.
Mrs Rizwan confirmed that she called the police on another occasion a few months after the incident in July 2015. She was “hyper and tense” about family issues following a phone call from her brother. She called the police and they attended the house in the evening but she told them nothing had happened.
She was asked about the incident on 19 September 2015 when police were called to their house at 4:30pm. She said that she started an argument with her husband and he tried to stop her from shouting and he put his hand on her mouth. She denied that he harmed her on this occasion despite what was reported in the police report [Tender Bundle pages 7-8], which records that “she informed Police that the Defendant has assaulted her by grabbing her around the mouth area and squeezed her cheek area”.
She told the Tribunal that following her mother’s death she was depressed and she saw Dr Peiris and Dr Kumar (psychologist) on a number of occasions and was prescribed sleeping tablets and anti-depression medication from August 2014 to early 2016.
Character references
The Applicant called a number of witnesses to provide evidence in support at the hearing and they also provided written character references in the form of a letter, with the exception of Mr Chaudhry Abdullah who provided a Statutory Declaration.
Dr Deepani Peiris, the Applicant’s general practitioner, gave evidence by phone at the hearing and provided a statement dated 27 June 2017. She told the Tribunal that she also treated Mrs Rizwan for depression, feelings of helplessness and grief, and trouble sleeping and on 1 July 2015 she referred Mrs Rizwan to Dr Kumar for further assessment. She also examined Mrs Rizwan on 7 July 2015 and provided a medical certificate in relation to Mrs Rizwan’s major depression diagnosis on 23 July 2015. Dr Peiris told the Tribunal that she also saw Mrs Rizwan on 15 August 2015 and during this consultation she told her about a domestic violence incident that had occurred the day before when police were called. Her notes record that an AVO was issued against the Applicant. Dr Peiris told the Tribunal that Mrs Rizwan did not report to her that she had thoughts of self-harm and there was nothing to suggest that Mrs Rizwan would falsify allegations of abuse against her by the Applicant.
Dr Syed Hussaini, general practitioner, gave evidence by phone and provided a statement dated 29 June 2017. He confirmed that he is the GP of the Applicant and he also sees Mrs Rizwan and her children as they usually come as a family for consultations. He said in his statement that he understands that the Applicant “had some issues with his wife in 2015” but they “have sorted out things and are in good terms with each other”. He was asked what were the “issues” he referred to in his statement and he said that he understands that these were “spousal abuse issues” but these are now resolved. These were discussed with him during only one consultation, namely on 29 June 2017 (the date of his statement) and he was not aware of any domestic issues before then. He is not aware of any convictions that the Applicant may have concerning violence against his wife or the reasons why his citizenship application was refused.
Ms Cheryl McNaught, Assistant Principal at Hambledon Public School, gave evidence by phone at the hearing and provided a written statement dated 29 June 2017. In 2015 she was the teacher of one of the Applicant’s children. Mrs Rizwan spoke to her and asked her to keep an eye on her child as there had been some problems at home. She told the Tribunal that she is not aware of any violence in the family and that they seem to be a happy family when she sees them at school and at activities outside school. She is not aware of any convictions involving violence that the Applicant may have or the reasons why his citizenship application was refused.
Ms Bernadette Murray gave evidence by phone and provided a statement dated 25 June 2017. She has been a high school teacher for more than 35 years in the Catholic education system and is a neighbour of the Applicant and his family. She sees the children almost every day and they appear well cared for and happy. She was told by Mrs Rizwan that there were some difficulties in the relationship between her and the Applicant in 2015, but from her observations “they seem to be in a settled relationship.” She is not aware of any convictions that the Applicant may have concerning violence against his wife or the reasons why his citizenship application was refused.
Mr Chaudhry Abdullah gave evidence by phone and provided a Statutory Declaration dated 16 May 2016. He and the Applicant met in Pakistan when they were children more than 20 years ago and they have remained friends. He told the Tribunal that Mrs Rizwan was very upset at the death of her mother and she was sometimes “harsh” with her children and she couldn’t control herself. She would pull her hair and she tried to slap herself and would also slap the children. He saw this himself on one occasion when he was at their house after she returned from Pakistan in September 2014. She is now OK and the relationship between her and the Applicant is good. He told the Tribunal that the Applicant told him he was arrested and charged a few days after the incident in July 2015. He is aware that the Applicant was convicted of assault against Mrs Rizwan. He is not aware of any other incidents involving violence by the Applicant towards his wife. He visits them at their house on a weekly basis and he has never seen him harm her.
Mr Malik Hafeez gave evidence by phone and provided a statement dated 5 July 2017. He is a friend of the Applicant and has known him since 2002 in Pakistan. He is aware that although there were “family issues” which occurred in October 2015, “the family have been able to resolve their problems and are living happy and peaceful life”. He told the Tribunal that they were very happy until the death of Mrs Rizwan’s mother after which “she lost her senses”. He knows that the Applicant’s citizenship application was refused because of the “disagreement” between the Applicant and his wife but he doesn’t know the details of this. He is aware of the Applicant’s conviction in October 2015. He is not aware of any occasions when the Applicant may have been violent towards his wife. When he sees them they are happy together.
Ms Rabia Kibriya gave evidence by phone and provided a brief statement dated 2 July 2017. She has been a family friend of the couple since 2014 and they attend the same mosque. Mrs Rizwan told her they were having some problems but didn’t go into detail. She has never seen them argue and they seem happy and loving. She is not aware of any convictions for violence that the Applicant may have.
CONSIDERATION
‘Good character’
Domestic violence offence
The evidence before the Tribunal is that the Applicant was charged and convicted on 16 October 2015 of assault occasioning actually bodily harm, the victim being his wife, Mrs Rizwan. Police also intervened in domestic incidents involving the Applicant and his wife in July/August and September 2015, although no charges were laid in relation to these incidents. The evidence before the Tribunal also is that AVOs were issued against the Applicant arising from domestic incidents between him and his wife.
The Applicant’s conviction for a domestic violence offence is not consistent with the requirement in the Citizenship Policy that an applicant not be violent and not cause harm to others (page 147). Domestic violence offences are serious offences involving, by definition, vulnerable persons over which the offender exercises power and control. The Australian community has zero tolerance for crimes of domestic violence. In Mendoza and Minister for Immigration and Border Protection [2018] AATA 686, Senior Member Puplick made this point in the context of a character assessment for a citizenship application at [48]:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.
Applicants for citizenship who have been convicted of domestic violence offences face a high bar in establishing that they are a person of ‘good character’. In Sharma and Minister for Border Protection [2015] AATA 608, Deputy President Constance said that domestic violence is conduct that is “fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character” at [37].
The Respondent drew to the Tribunal’s attention its decision in Ahori and Minister for Immigration and Border Protection [2017] AATA 601 in which Senior Member Sosso stated that a conviction of domestic violence gives rise to a presumption that an applicant for citizenship is not a person of good character at [54]:
There would need to be compelling evidence and extremely good reasons to negate the presumption that a person convicted of a domestic violence offence is not a person of good character and not a person who deserves the conferral of Australian citizenship.
The Tribunal adopts this approach, namely that there is a presumption that a person is not of good character in circumstances where the applicant for citizenship has been convicted of a domestic violence offence, and that this presumption is only negated in the face of compelling evidence and persuasive reasons which support a contrary finding. This approach does not, as Senior Member Sosso noted, allow the Tribunal to automatically reach a conclusion that an applicant is not of good character purely on the basis of a conviction for domestic violence - it must consider and evaluate all the evidence presented.
The evidence before the Tribunal is that the Applicant was charged and convicted of a domestic violence offence in October 2015. The evidence of the Applicant and that of his wife Mrs Rizwan, is that the injuries she sustained during the incident on 21 July 2015 which led to the Applicant being charged and convicted were not inflicted by the Applicant but were self-inflicted by Mrs Rizwan, and that the Applicant took the blame because he wanted his marriage to continue.
The Tribunal does not accept that the Applicant was not responsible for the assault against his wife on 21 July 2015 for a number of reasons. First, he was convicted by the Blacktown Local Court of this offence, and his wife gave evidence against him at the court hearing. Mrs Rizwan’s evidence to the Tribunal that she fabricated a story in relation to this incident, told this story to the police, and maintained the story at the court hearing because she was depressed at the time, is not credible or plausible. Nor is the Applicant’s claim that his wife’s injuries were the result of her attempting self-harm and him intervening to stop her from doing so while he continued to drive. This evidence is inconsistent with the Applicant’s plea of guilty to the offence at the court trial and his statement dated 2 July 2017 in which he admits “I am guilty for my action”.
Secondly, the evidence of both the Applicant and his wife is inconsistent with the contemporaneous police report following the incident on 21 July 2015 [Tender Bundle pages 11-12]. This report records the contemporaneous information provided to police by them at the time and reports an act of violence perpetrated by the Applicant against his wife. Mrs Rizwan prepared and signed a three-page statement detailing the offence and the injuries she sustained. The evidence of the Applicant and Mrs Rizwan is also inconsistent with the contemporaneous report made by police [Tender Bundle pages 7-8] after they were called by Mrs Rizwan and attended the family home on 19 September 2015 when she reported a violent assault against her by the Applicant.
Thirdly, the medical evidence before the Tribunal is that although Mrs Rizwan suffered depression and could not sleep following the death of her mother in August 2014, her symptoms did not include self-harm or harm to others, and that these symptoms would not have caused her to falsify allegations of harm by another person.
The Tribunal finds that Mrs Rizwan’s account of the domestic incidents in July and September 2015 as reported to police and recorded in the contemporaneous police report, in her evidence to the Blacktown Local court in October 2015, and as reported to Dr Peiris, is an accurate description of what occurred. Her evidence that the Applicant has never harmed her and that the incidents as reported did not occur cannot be and is not accepted.
In making this finding, the Tribunal has had regard to the Citizenship Policy which addresses the provision of references by family members, particularly a member of the family who has been the victim of domestic violence at the hands of the applicant for citizenship (at page 155):
It is preferable that references are not submitted from family members. However, if they are, less weight should be given to them because of the societal expectation that family members would tend to support one another and play down unacceptable conduct. Decision makers should take particular care with references from victims of domestic violence. There is a risk that such statements have been coerced either directly or indirectly.
The Tribunal has placed little weight on the evidence of Mrs Rizwan because, as a family member of the Applicant, there is a considerable risk that the Applicant’s violent conduct has been downplayed by her and that, as a victim of domestic violence by the Applicant, her statements were coerced either directly or indirectly by the Applicant.
Failure to disclose offence on citizenship application
The evidence before the Tribunal is that the Applicant gave incorrect answers in relation to his criminal record in response to a question in the citizenship application form. The Tribunal does not accept that the person who assisted him to complete the form did not ask him about the information asked in Question 35(a) and, therefore, that he did not know that the answer given was “No”. The fact that the Applicant answered “Yes” to Question 35(d) is evidence that he was aware, or made aware, of the nature of the questions asked and yet he provided an incorrect answer.
The Tribunal finds that the Applicant’s failure to answer truthfully questions related to his criminal record is relevant to the assessment of his character. In making this finding it has had regard to the Citizenship Policy (page 147) which recognises that a person of ‘good character’ would be truthful and not practice deception or fraud in their dealings with the Australian government by the “concealment of convictions that could lead to the … refusal of … citizenship.”
Mitigating factors
Acceptance of responsibility and remorse for conduct
Whereas in his statement dated 2 July 2017 the Applicant says that he accepts guilt for his actions and that his actions were unintentional, his evidence to the Tribunal is that he did not commit the violent acts for which he was accused and/or convicted. The Tribunal therefore is unable to find that the Applicant has accepted responsibility for his actions. Nor is the Tribunal able to find that the Applicant has shown remorse for his actions as he denies that he committed them.
Length of time elapsed
The Applicant was convicted of assault occasioning actual bodily harm on 16 October 2015. This conviction related to his violent conduct against his wife in July 2015. Therefore, nearly three years have passed since this incident. The evidence before the Tribunal is that the Applicant’s wife reported domestic violence against her by the Applicant on two further occasions, most recently in September 2015.
The Tribunal does not consider that sufficient time has elapsed in order for it to be satisfied that the domestic violence incidents were out of character for the Applicant and that he has demonstrated the ‘enduring moral qualities’ associated with ‘good character’.
The seriousness of the Applicant’s conduct, it being domestic violence against a vulnerable person, requires a significant amount of time to pass before a finding can be made that he is now of ‘good character.’ Senior Member Toohey observed in Assafiri v Minister for Immigration and Border Protection [2014] AATA 35 at [67]:
Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
The Tribunal is not satisfied that sufficient time has passed for a positive assessment to be made as to the Applicant’s character.
Extenuating circumstances
The Applicant’s evidence to the Tribunal is that he was not responsible for the injuries sustained by his wife during the incident on 21 July 2015, and he denies that he has on any occasion threatened or caused her harm. As mentioned above, this is inconsistent with the independent evidence before the Tribunal, including two contemporaneous police reports and the evidence of Dr Peiris. It is also inconsistent with his statement dated 2 July 2017 in which, as set out above in paragraph 28, he admits he is guilty of the acts.
This statement indicates that the Applicant has only recently understood the nature and seriousness of domestic violence and that it is an offence under Australian law. This is not an excuse for his criminal conduct and is certainly not an ‘extenuating circumstance’ to be taken into account by the Tribunal in making an assessment of character.
Of further concern to the Tribunal is the Applicant’s claim that it was his wife’s depression or state of mind that led to the incident that resulted in him being convicted of the domestic violence offence. In his Statutory Declaration dated 17 May 2016 [T documents page 57] he stated that the incident on 21 July 2015 “happened due to her mental health”. This ‘victim blaming’ by the Applicant of his wife, and the suggestion that it was her mental health at the time that led to the incident, is an apparent attempt by the Applicant to claim there are extenuating circumstances that should be taken into account in making an assessment of his character. The Tribunal does not accept that the victim’s mental health is an extenuating circumstance which mitigates the Applicant’s violence against his wife. The Tribunal finds that, to the contrary, this claim by the Applicant supports a finding that he falls well short of demonstrating that he is of ‘good character’ as required for the grant of Australian citizenship.
Family life and community involvement
The evidence before the Tribunal includes the written statements and oral testimony of individuals who support the Applicant. The Tribunal has placed little weight on the evidence of Ms McNaught, Ms Murray and Ms Kibriya as they do not refer to or acknowledge the domestic violence offences or incidents, and their written evidence is in the form of a letter. The Tribunal has also placed little weight on the evidence and statement in the form of a letter and Statutory Declaration respectively of Mr Hafeez and Mr Abdullah in view of the inherent bias which attaches to a reference provided by a long-time friend of an applicant for citizenship.
In making this finding the Tribunal has had regard to the Citizenship Policy which provides guidance to decision-makers in relation to character references (page 155):
Referee reports can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not.
It follows from the above that the Tribunal finds that there are no mitigating factors to be taken into account in making an assessment of the Applicant’s character.
CONCLUSION
In considering all of the relevant circumstances and weighing the available evidence, the Tribunal is unable to make a positive finding of ‘good character’ in relation to the Applicant. Therefore, the Tribunal finds that the Applicant does not satisfy s 21(2)(h) of the Act.
This conclusion does not preclude the Applicant from making a further application for citizenship in the future. It may be that with the passage of time, he will be able to demonstrate that he does meet the ‘good character’ requirement for the grant of Australian citizenship.
DECISION
For the reasons set out above, the decision under review is affirmed.
I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
.............................[sgd]...........................................
Associate
Dated: 6 June 2018
Date(s) of hearing: 27 and 28 February 2018 Applicant: In person Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor
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