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

[2024] AATA 202

Wang and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 202 (17 January 2024)

Division:                  GENERAL DIVISION

File Number:          2022/9706

Re:Zhitian Wang

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:17 January 2024

Date of written reasons:        16 February 2024

Place:Sydney

For the reasons given orally at the conclusion of the hearing on 17 January 2024 of this matter, the Tribunal decides that the reviewable decision dated 14 March 2023, made following the remittal to the Respondent pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), is set aside and in substitution, it is decided that the Tribunal is satisfied that the Applicant is a person of good character pursuant to section 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

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

Mrs J C Kelly, Senior Member

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – citizenship application refused – whether the applicant is a person of good character – domestic violence – seriousness of offence – failure to disclose offence – whether sufficient time has elapsed since Applicant’s offending – reviewable decision set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

16 February 2024

Introduction

1. In response to the Respondent’s request for written reasons for the oral decision I gave on 17 January 2024, I set out my reasons given on that occasion with minor amendments for clarity and ease of understanding.

2. It is unnecessary to set out the procedural history of this matter beyond stating that the decision the Tribunal is reviewing was made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent), dated 14 March 2023 which was made following remittal to the Respondent under section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), to refuse Mr Wang’s application for Australian citizenship by conferral. The delegate was not satisfied that Mr Wang (the Applicant) was a person of good character at the time of the decision, and therefore did not satisfy paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).

3. It is important in this case to indicate at the outset that I am going to set aside the reviewable decision and I am going to find that the Applicant, Mr Wang, is a person of good character, essentially for this reason: in my view, the domestic violence incident is one incident that is out of character. I do not accept that he is a violent person. I do accept and endorse always, the comments about domestic violence which is, in all its manifestations, unacceptable. I accept that the Applicant understands and agrees with that.

4. I understand that his particular concerns in this case are the fact that he (1) has been portrayed as somebody who is a violent person, which I accept he is not, and (2) his family background and history.

5. His is not a family where there has been a history of criminal offending.  I accept that. That is consistent with his history in Australia since February 2007, except for this one incident. I take into account the cases addressing domestic violence referred to at paragraph [30] of the Respondent’s Statement of Facts, Issues and Contentions. I put it in this context. You have to consider all the circumstances of a case. That is why, in this case, if it is accepted that there is a prima facie assumption that a perpetrator of acts of domestic violence is not a person of good character, that has to be rebutted. In my view, in this case, the Applicant’s history rebuts that presumption. As I have said, it is out of character.

6. The Applicant has accepted that he did ‘kick’ his partner. It was in the course of a verbal argument which had escalated into physical pushing and shoving. I refer to the paragraph that sets out the police facts.

   At 1800 hours on Tuesday 31 August 2021 the victim was cutting the accused’s hair at the residence when a small verbal argument started between the victim and the accused which resulted in the accused tossing the apron which had his hair clippings in it in the direction of the victim.

   The victim and the accused continued to verbally argue when the accused has thrown a beanie that he was wearing at the victim. The victim has approached the accused and asked why he did that. This resulted in the accused and the victim to push each other.

7. This is an incident of the victim and the Applicant pushing each other. According to the police facts, the accused was still seated and he used both hands to push the victim, causing her to fall on the ground and land on her right knee. The victim got to her feet and called the police. The police arrived, and there was a body-worn video and then later on an electronic interview at the police station, where those facts are not disputed.

8. The police facts do not state that the Applicant ‘kicked’ the victim, although he accepted that he did during the hearing.

9. It is of some significance in this case that, while the Applicant was still at the police station, his partner rang the police and tried to have them not proceed with any charges. That intervention was unsuccessful.

10. Their evidence was that later, when a lawyer was involved, the Applicant’s partner again asked that the police not proceed with the charges. This is a case where I am satisfied that the Applicant’s partner was not coerced. I have formed the view that she is a person of strong convictions and stands up for herself. She came to the hearing, although the relationship has ended, to support the Applicant. She stands by her statement as a referee supporting him as to his good character. That carries significant weight, in my mind, because it reinforces my impression of the Applicant from his demeanour and the evidence that he has given.

11. I need to grapple with what appears to be contradictory evidence from the Applicant about the extent to which he is responsible for the incident. I accept that the incident has escalated from a verbal incident to a physical incident, and I understand that the Applicant feels that those facts have not been adequately reflected in the Respondent’s approach. Having said that, as the Applicant has repeatedly accepted, his behaviour in using his leg to push the victim back and pushing her with his hands, was unacceptable. That is the particular conduct which has led to the charges and the conviction.

12. The Applicant has pleaded guilty in court on 18 November 2021 to the offence of common assault (DV)-T2 and, therefore, he has a criminal record, which I do not go behind. He was not convicted of the offence. The seriousness assessed by the magistrate was that he should have a 12-month conditional release period without conviction and that a domestic violence order be issued for the same period of time. I infer that, in the circumstances of a COVID-19 lockdown at the time of the offending, that was a matter that was before the magistrate and would have been taken into account in determining the appropriate sentence. The sentence reflects the seriousness with which the magistrate considered the offending.

13. The Respondent emphasises that the Applicant has undertaken minimal steps in terms of rehabilitation because he has not undertaken counselling or anger management courses or other courses to address domestic violence.

14. The Applicant is not a person who has a history of domestic violence apart from this particular incident of which I have given the details. He and his partner have explained how they moved on from this incident and improved their relationship to avoid any repetition of increased escalating behaviour during arguments. They have also undertaken what were described as spiritual approaches to addressing it, including practising yoga.

15. I find that they are practical approaches to dealing with a particular problem in a relationship which was otherwise quite free of any violence. There was harm to the victim in terms of a minor injury to her right knee and that she was visibly upset and crying when the police arrived at the scene. I accept that entirely. However, there is no suggestion, in my view, in the evidence that the victim suffered any long-term damage from the incident. Rather, on reflection, her assessment of the incident was such that she wished to have the charges withdrawn, and that was not because of any coercion on behalf of the Applicant, who was absent. There is no other evidence of coercion by the Applicant in any sense over the previous 18 months of their relationship.

16. There is also the failure to disclose the offence in the citizenship application. I do not know that that is a failure to disclose offences. The difficulty in this case is that the Applicant had no conviction entered. I accept that his understanding was that he therefore had no criminal history. When it came to answering the question which clearly asked whether he had been found guilty, he did not appreciate that it required an answer that was ‘yes’. I was particularly concerned about that matter because he lodged his citizenship application the day after he appeared in court when he clearly would have been very well aware of what had happened on the previous day.

17. But I do accept that there is a lack of understanding not only by the Applicant but by many people who have appeared before me, in relation to when there is no conviction. They think that there is no problem. I do not find adversely against him in terms of not understanding that, although clearly written and I accept, he was required to disclose the offences.

18. The next matter is this question of the timing. I have seriously considered whether this is a case where a further period should occur before conferral of citizenship is granted to show that there has been rehabilitation. However, because I find that this is an incident that is out of character for the Applicant, that it is now about two and a half years since the incident, and it is a year and approximately two months since the end of the conditional release order, I am satisfied that an appropriate period of time has elapsed, considering the totality of his conduct in Australia since 2007. In 2011, as I understand his evidence, he became a permanent resident.

19. I just amplify in relation to the lodgement of the citizenship application the day after the court appearance, that was because the Applicant had started to fill out his citizenship application before the incident. When he was charged he did not proceed further, to await that outcome. The fact that he did lodge the application the next day indicates and supports my finding that he did not understand the question in relation to his criminal record. If he had understood what that question required, I am confident that he would not have lodged the application on that day or would have given the correct answer.

20. Coming back to the question of the Applicant’s concern about the fact that the department did not specify a time period that he would have to wait before he reapplied. It is a question of circumstances. Each case is different. In this case, as I have said, because it is a one-off incident, I have found that it is appropriate to set the reviewable decision aside at the time of hearing. In other cases, there may need to be some further time to show that the person is unlikely to reoffend. 

21. Taking all the evidence before me into account, the Applicant’s history before the domestic violence incident, his history since the incident, and also the additional evidence he has provided in relation to his employment, I am satisfied that paragraph 21(2)(h) of the Act is met and the reviewable decision is set aside because I am satisfied that the Applicant is a person of good character at the time of my decision.

    DECISION

22. For the reasons given orally at the conclusion of the hearing on 17 January 2024 of this matter, the Tribunal decides that the reviewable decision dated 14 March 2023, made following the remittal to the Respondent pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), is set aside and in substitution, it is decided that the Tribunal is satisfied that the Applicant is a person of good character pursuant to section 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 16 February 2024

Date of hearing:	17 January 2024
Applicant:	In person
Solicitors for the Respondent:	Ms G Gutmann, Minter Ellison