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

[2024] AATA 77

Verma and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 77 (29 January 2024)

Division:GENERAL DIVISION

File Number(s):      2022/7529

Re:Ishaan Verma

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Damien O'Donovan

Date:29 January 2024

Place:Canberra

The decision under review is affirmed.

………………………[SGD]……………………….

Senior Member Damien O'Donovan

Catchwords

IMMIGRATION & CITIZENSHIP – cancellation of approval to become Australian citizen –Applicant’s approval was cancelled under section 25 of the Australian Citizenship Act 2007 – whether Applicant is not of good character – decision under review affirmed

Legislation

Australian Citizenship Act 2007 (Cth) s 25

REASONS FOR DECISION

Senior Member Damien O'Donovan

29 January 2024

1. This is an application for review of a decision made by a delegate of the Minister pursuant to s 25(1) of the Australian Citizenship Act 2007 (Cth) (the Act) on 16 August 2022. The delegate decided to exercise his discretion to cancel the approval of the applicant becoming an Australian citizen by conferral. The approval was cancelled on the basis that the delegate was satisfied that the applicant was ‘not of good character’ for the purposes of subsection 25(2)(b)(iii) of the Act.

2. The applicant has applied for citizenship previously. His first application was refused by a delegate and that decision was confirmed by the Administrative Appeals Tribunal (the Tribunal). The Tribunal he was not satisfied that the applicant was of good character as a consequence of a 2016 domestic violence conviction, which, at the time of the Tribunal’s decision, was a recent one.

3. On 8 May 2020, the applicant lodged a second application for Australian citizenship. In that application, he disclosed his 2016 conviction. After reviewing the application, a delegate approved his Australian citizenship application. In order to approve the application, the delegate had to be satisfied that the applicant was of good character at the time of the decision to approve.

4. The approval is an important step towards citizenship, but approval of an application does not lead to citizenship until a person has taken a pledge of commitment. If character concerns arise between approval and the pledge of commitment, it is possible for the citizenship approval to be cancelled.

5. In the applicant’s case, before he made his pledge, a delegate of the Minister cancelled the approval given to the applicant. At the time the decision was made, the applicant had recently been convicted of common assault and had further charges pending.

6. The decision to cancel the approval is the decision that is the subject of this review.

7. The question I have to determine is whether, on the evidence before me, I am satisfied that at present, the applicant is not of good character. Unless I am affirmatively satisfied that the applicant is not of good character, the cancellation must be set aside. If I am satisfied that the applicant is not of good character, I have a discretion to cancel the approval.

   Evidence

8. The evidence before the Tribunal consists of the following material:

   a)T-Documents filed by the Respondent on 21 October 2022;

   b)Respondent’s Tender Bundle filed on 27 February 2023 (Exhibit R1 – R6);

   c)Court Order Notice dated 10 November 2022 (Exhibit A1);

   d)Final Order - Apprehended Domestic Violence Order dated 18 November 2022 (Exhibit A2);

   e)Digital National Police Certificate dated 1 May 2023 (Exhibit A3);

   f)Translated phone conversation between the applicant and N dated 9 June 2023 (Exhibit A4);

   g)Translation of text messages between the applicant and N dated 9 June 2023 (Exhibit A5);

   h)Reference from Nick Cherrie, Psychologist, dated 23 July 2022 (Exhibit A6);

   i)Reference from Patrick Soosay dated 31 May 2023 (Exhibit A7);

   j)Reference from Glenn Brown dated 27 April 2023, with postscript dated 6 June 2023 (Exhibit A8);

   k)Reference from Sumit Prasad dated 7 August 2023 (Exhibit A9)

   l)Reference from Ashna Menon filed on 21 August 2023 (Exhibit A10);

   m)Report from the Children’s Hospital at Westmead filed on 2 November 2023 (Exhibit A11); and

   n)Translated phone conversation between the applicant and N dated 13 October 2023 (Exhibit A12).

9. At the hearing, the applicant gave oral evidence and was cross-examined.

   Fact-finding principles

10. The evidence before me was a mixture of oral evidence and documentary evidence. On some issues I regarded the documentary evidence as sufficiently reliable to reject some elements of the applicant’s oral evidence. In relation to other issues I did not regard the documentary evidence as sufficiently reliable to provide a basis for reaching any factual conclusions. The following is a brief explanation of the approach which I have taken to resolve the conflicts in the evidence in relation to various issues.

11. The applicant was convicted of a domestic violence offence in 2016. It was sufficiently serious to result in the departmental delegates and the Tribunal refusing to find that the applicant was of good character for the purposes of his first citizenship application. The applicant contests some matters of detail about the events which led to that conviction. It is open to me to accept the version he gave at the hearing before me, but in relation to the 2016 conviction, I am not prepared to do so. The applicant pleaded guilty to the charge and was sentenced based on certain facts. He had an opportunity to contest the charge or give evidence about his version of events and be sentenced on that basis – he chose not to follow that course. I am not prepared to disregard his earlier agreement in the criminal context about what occurred in 2016 and accept the more favourable version of events that he now proffers. As a result of that approach my fact finding in relation to the 2016 conviction follows closely the police fact sheet prepared in relation to the charges to which the applicant pleaded guilty.

12. In relation to the assault charge which the applicant pleaded guilty to in March 2022, I have considered the version he gave to this Tribunal very carefully. In my view, it is consistent with the police fact sheet in relation to the incident and the findings of the criminal court. On that basis, I have largely accepted the applicant’s version.

13. In relation to the allegations which were made to police on 17 March 2022 by the person I will refer to as N, I note that the charges, which were laid as a consequence of those complaints, were withdrawn. The applicant denied the assault allegation made against him and all the other conduct complained of was, on the weight of the evidence available to me, consensual. The respondent did not call N or her corroborating witness to give evidence before this Tribunal. The conduct alleged was serious and I note that it is for the respondent to satisfy me that the applicant is not of good character. In such circumstances, I am not prepared to make any positive factual findings based only on reports made to police. Those reports were not contemporaneous and have never been tested in court. Consequently, I make no findings in relation to the allegations made by N on 17 March 2022.  

14. The facts on which I base my decision are as follows.

    Facts

15. The applicant is a citizen of India. He arrived in Australia on 20 May 2008 aged 20. He was the holder of a Temporary Prospective Marriage visa.

16. The relationship which formed the foundation of the visa did not result in an enduring marriage, however the applicant remained in Australia.

17. In about 2012, the applicant married again. He and his wife, Ms Verma, had a child together. On 7 July 2015, he was granted a Permanent Partner visa. By late 2015, the relationship was in trouble. He and his wife separated towards the end of 2015. It would appear from the evidence that initially at least it was a ‘one roof separation’ – that is, despite the ending of the relationship, the two remained living in the same place.

18. In the early hours of 5 July 2016, the applicant and Ms Verma were at their home address with their daughter. They had a conversation about the applicant moving out of the house. This started a verbal argument between them. The argument topic turned to the accused’s mother. This infuriated the applicant and he said to Ms Verma “don’t talk about my mother or I will kill you, I will kill you”.

19. The applicant approached Ms Verma and raised one of his hands up and with an open hand thrust his hand towards her. At this time Ms Verma feared for her safety and took a step back from the accused. The accused said, “I will kill you … seriously fuck your life up and destroy your life”.  Ms Verma then collected her belongings and her child and while the applicant was still screaming at her, left the unit and waited in the foyer of the apartment block. The applicant later walked past her repeating “I will fuck you and I will seriously destroy your life”. The accused left in his car.

20. The applicant was convicted of ‘stalk/intimidate intend fear physical etc. harm (domestic)’. He was given a 12-month good behaviour bond.

21. The applicant and Ms Verma now live separately. The applicant is the primary carer of his daughter, who has been diagnosed with autism. The evidence indicates that he has a co-operative relationship with his ex-wife and his former mother-in-law. The assessment of the original delegate who considered the applicant’s second citizenship application was, and I agree with it, that in the absence of a repeat of the behaviour which led to this conviction, it was reasonable to conclude that by 2021, the applicant was of good character and he met the requirements for citizenship.

22. However, in 2020 the applicant commenced a relationship with a woman who he met in a club, who I will refer to as N. A sexual relationship developed but the emotional attachment was very one sided. N was very keen to pursue a long-term relationship, but the applicant was not. She often gave him gifts and money totalling something in the order of $40,000.

23. The relationship was extremely volatile. In the course of these proceedings and in other contexts, each has made allegations about the conduct of the other. If I were satisfied that everything which N said about the applicant was true, I would reach the conclusion that he was not of good character. However, for the reasons explained at paragraph ‎13 above, I am not satisfied of the truth of many of the allegations made by N. Consequently, my findings of fact are largely based on the applicant’s version of events, which explain the incidents in question.

    Incident dated 8 September 2021

24. On 8 September 2021, the applicant met up with N. N announced that she had taken the day off and expected to spend the day with the applicant. He advised her that he could not or did not want to spend the day with her and an argument ensued. The argument took place near an apartment complex. The argument was very loud and attracted the attention of an off-duty policeman and his wife who could observe the argument from their unit. The policeman began arguing with the applicant through the window of his apartment. Due to concern about the attention they were attracting, and in order to quieten down N, the applicant did something to N’s face with his hand. On his account before me, what he did was place his hand over her mouth to stop her yelling. The policeman and his wife believed that the applicant had struck N in the face and called the police. When the police arrived, N denied that she had been struck. Despite this, assault charges were laid, and the applicant ultimately pleaded guilty. At the Tribunal hearing, the applicant acknowledged that he should not have put his hands on N in the way that he did and that it constituted an assault. He accepted responsibility for it and said that he understood now it was not appropriate. On 17 March 2022, the applicant pleaded guilty to the charge and an 18-month conditional release order was imposed and no conviction recorded.

25. On 17 March 2022, N attended Granville Police Station and alleged that the applicant assaulted her at her own house and made recordings of a sexual nature on her phone without consent. The charges were withdrawn. The evidence supporting the allegations advanced at the hearing of these matters was weak and ultimately the respondent did not press the making of findings adverse to the applicant based on the allegations.

    Incident of 12 February 2022

26. There was a further incident between the applicant and N. It occurred on 12 February 2022. N turned up at the shop, where the applicant works as a hairdresser, and assaulted him. In addition to physically attacking the applicant, N screamed at the applicant demanding that he give her back her money. An associate of the applicant rang the police and N was ultimately arrested.

27. A number of things are clear from the evidence, in particular page 195 of the T-Documents  and the transcripts of recordings taken by the applicant of other incidents which have occurred between N and the applicant. The first is that N was infatuated with the applicant. Second, that infatuation led her to do illegal and anti-social things in relation to the applicant, including assaulting him and removing documents like his passport from his apartment without permission. Third, that her erratic behaviour towards the applicant was born, at least in part, of mistrust of him – which may or may not have been justified. Finally, it led to her giving him gifts and providing him with money (valued in the order of $40,000) which initially she was happy to offer, but which ultimately led her to demand its return.

28. The applicant admits that he did receive large sums of money and valuable gifts from N. He implicitly accepted that he ought to return them to her. Indeed he went so far as to claim that he had transferred money back to the applicant and she had sent it back. He also gave evidence that there were difficulties in him returning what he owed to N due to N not wishing him to return the things and, in addition, the court orders, to which he is subject. I do not accept that evidence.

29. All the evidence, apart from that given by the applicant, points to the fact that N wants to have the money and gifts returned to her. In particular, the application for the apprehended violence order against N, which was taken out on 12 February 2022, records that N was yelling “give me my fucking money back”. Those are not the words of a person or actions of a person who doesn’t want the money to be returned. There are also texts from N to the applicant included in the T-Documents which say “…why are you keeping my money and stuff’ and “I want my money”.

30. I am satisfied that N does want her money back and that the reason the money has not been returned is that the applicant has chosen not to return it.

    Other matters

31. I note that the applicant has provided evidence from a number of referees, including his psychologist. I am sure that the applicant is well regarded by many in the community. His volunteering to provide haircuts for those who cannot afford them at his local community centre, and the care he gives to his daughter, do weigh favourably on my assessment of his character. However, references about how people perceive the applicant do not necessarily assist in determining his enduring moral qualities and whether he is of good character. The cases make a clear distinction between a person’s character and their reputation. My focus is therefore more on the established conduct of the applicant, rather than what others think of him.

    CONSIDERATION

32. In considering the applicant’s enduring moral qualities, the following can be said.

33. First, his conduct towards his ex-wife is affirmative evidence of bad character. Terrorising a spouse in her own home is not the conduct of a person of good character. I am however prepared to acknowledge that the offence occurred in the context of a failing relationship and, if no similar conduct was repeated, it would not in 2024 provide a sufficient basis for me to conclude that the applicant is not of good character.

34. Second, the incident which occurred on 8 September 2021 and which was dealt with by the courts was minor and isolated. To my mind it does not contribute to a conclusion that the applicant has a pattern of engaging in violence towards women he is in a relationship with. He did not strike his victim and the contact he did make with her person, although inappropriate, was explicable as a panicked reaction to a complex situation. The incident, even in the context of the applicant’s earlier intimidating conduct towards his wife, does not support a conclusion that he is not of good character.

35. Third, the applicant did take advantage of N. He received very substantial amounts of money and gifts from her because she wanted to be in a relationship with him, but when it became clear that the relationship had no future, the applicant failed to return to the money to N. When she expressed in the clearest possible terms that she wanted the money returned, he failed to make sure that it was. A person of good character would not take advantage of a person in this way and to this extent. On that basis, I am satisfied that he is not of good character.   

36. In such circumstances I have a discretion not to cancel the applicant’s approval. However, given that being of good character is an essential eligibility criterion for citizenship it would rarely be appropriate to exercise that discretion favourably. I am not satisfied that I should exercise it in this case.  

37. This is not the end of the possibility of citizenship for the applicant. He is free to re-apply and if he demonstrates that he can behave appropriately towards others, then there is a good chance he will be successful at some point in the future. However, at this point in time, it is appropriate to cancel his approval so that his current application will not proceed.  

    DECISION

38. The decision under review is affirmed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.

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

Associate

Dated: 29 January 2024

Date of hearing(s):	24 November 2023, 6 December 2023
Solicitor for the Applicant:	Ms M Faiz, Sydney Criminal Law Specialists
Solicitor for the Respondent:	Ms P Joseph, Mills Oakley