VQLM and Minister for Home Affairs (Citizenship) [2018] AATA 3540 (5 September 2018)

Last Updated: 19 September 2018

VQLM and Minister for Home Affairs (Citizenship) [2018] AATA 3540 (5 September 2018)

Division: GENERAL DIVISION

File Number(s): 2018/0895

Re: VQLM

APPLICANT

And Minister for Home Affairs

RESPONDENT

DECISION

Tribunal: Member C Edwardes

Date: 5 September 2018

Place: Perth

The decision under review is affirmed.

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

Member C Edwardes

CATCHWORDS

CITIZENSHIP – whether applicant of good character – meaning of good character – criminal behaviour – serious offences – applicant’s evidence not credible - character references not reliable – no independent evidence to test the veracity of claims in character references - applicant found not to be of good character at time of application for citizenship – decision under review is affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) – s 21(1) – s 21(2) – s21(2)(h) – s 24(1), s 24(1A), s 52(1)(b)
Administrative Appeals Tribunal Act 1975 (Cth) –– s 43(1)(a)

CASES

Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Karatunov and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 132
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy, at 1 June 2016, Chapter 11

REASONS FOR DECISION

Member C Edwardes

5 September 2018

INTRODUCTION

1. This is an application for the review of a decision made on 6 February 2018 (PT2 5-15)(R1) to refuse the Applicant’s application for Australian citizenship under section 24(1) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The decision to refuse the Applicant’s citizenship application was made on the basis that the Applicant was not of good character at the time of the Minister’s decision.
2. The Application for review is made in accordance with section 52(1)(b) of the Citizenship Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision made under section 24 of the Citizenship Act.

BACKGROUND

3. The Applicant is a 31 year old citizen of Sri Lanka who arrived in Australia on 2 November 2006 as the holder of a Temporary Tourist visa subclass TR 676 visa.
4. On 31 January 2007 he was granted permanent residency as a holder of a Protection visa subclass XA866. On 10 September 2012 the Applicant applied for Australian citizenship.
5. This application was rejected on the 11 December 2012 as a result of the Applicant having pending criminal charges.
6. The Applicant made another application for citizenship on the 17 November 2015.
7. On 6 February 2018 the Minister’s delegate refused this application and stated:

Your Police Check Results Report indicates that you have been convicted of the following offences:

19/12/2013	Perth District Court Grievous Bodily Harm (Suspended Imprisonment Order - 18 Months Concurrent, Suspended 18 Months from 19/12/2013)
19/12/2013	Perth District Court Unlawful Wounding (Suspended Imprisonment Order - 8 Months Concurrent, Suspended 18 Months from 19/12/2013)
28/10/2009	NSW Fairfield Local Court Destroy or Damage Property (Fine: $400. Costs - Court: $76. Compensation:$200)

Crimes of this nature are considered very serious in the context of Citizenship Policy. I give your criminal convictions, and the nature of your recent offences, considerable weight.
On 8 January 2016 the Department wrote to you and provided you with the opportunity to comment on this adverse information held by the Department and to provide any further information you wished to have considered in relation to your application.
You responded by providing a personal statement and three character references on 2 March 2016.
I note in your personal statement you confirmed that you had been involved in undesirable activities. You go on to say:
"In Australia I lived in various shared houses with different kinds of people. During that time I had involved in undesireable activities which has resulted in convictions. I had misused the freedom and opportunity I got in this great country.
When I realised that I was going in the wrong path, it was too late as I had alredy [sic] damaged my life.
Since 2012, I have changed the people with whom I interact, got a permanent job and try my best to be a good citizen and good community member".
At no point in your personal statement do you express remorse or regret for your actions. I am therefore not satisfied that you appropriately understand the seriousness of your offences or have taken full responsibility for the incidents.
I give your personal statement little weight.
You have provided three character references in support of your application. The character references vouch for your good character and two of those character references indicate an awareness of your previous offences.
I give this some weight.
While it is possible for a person who was not of good character to be considered to have become a person of good character I have not come to this conclusion in your case.
Due to the seriousness of these offences, I am not satisfied that a sufficient amount of time has passed since your last convictions to justify the conclusion that you are presently a person 'of good character'.
Note that refusal to grant you citizenship at this time does not preclude you from applying for and being granted citizenship in the future, once a reasonable amount of time has passed since your last conviction to enable an objective assessment of your "enduring moral qualities" as defined by Citizenship Policy. (T2 11)(R1)

8. On the 23 February 2018 the Applicant applied to the General Division of the Tribunal to review the decision of the Minister’s delegate. (T2 3-4)(R1)
9. The Applicant stated:

I really regret my wrong doings to the extent that I feel I have ruined my life. I had mentioned this in my statement. English is not my First Language [sic] and I had friends help me with my statements. If I had been directly interviewed with interpreter, I would have explained how remorseful I am.” (T2 4)(R1)

LEGISLATION

10. Section 21(1) of the Citizenship Act provides that a person may make an application to the Minister to become an Australian citizen. Section 24(1) of the Citizenship Act provides that the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
11. Section 24(1A) of the Citizenship Act provides that 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), (3), (4), (5), (6), (7) or (8) of the Citizenship Act.
12. Section 21(2) of the Citizenship Act sets out the general eligibility criteria to become an Australian citizen. Relevantly, section 21(2)(h) provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.
13. The term “good character” is not defined in the Citizenship Act. There is, however, guidance on the application of the “good character” requirement in the Citizenship Policy (“the Policy”).^[1] The Tribunal will apply Departmental policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634).

The meaning of good character

14. Chapter 11 of the Policy provides guidance for assessing an applicant under the “good character” test prescribed by section 21(2)(h) of the Citizenship Act. Chapter 11 of the Policy cites Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 139 ALR 84, in which the Federal Court noted:

Unless the terms of the Act and regulations require some other meaning 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 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 while 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 is 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.

15. Chapter 11 of the Policy further states that the term “enduring moral qualities” encompasses the following concepts:
    • 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 the Australia society.
16. Chapter 11 of the Policy states this broad definition of “good character” 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 processes...

17. Chapter 11 of the Policy further provides that an applicant of good character would, among other things:
    • 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, ... concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
• ... 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)

18. The Policy also provides that in weighing up whether an applicant is of good character, decision makers are required to apply community standards, not their own personal standards, and question whether any mitigating circumstances and/or explanations provided by the Applicant outweigh the Applicant’s behaviour in question. Decision makers are to consider factors including:
    • would a person of good character have behaved the way the applicant did;
    • what is there to demonstrate that the applicant has upheld and obeyed the law;
    • has the applicant behaved in accordance with Australia’s community standards;
    • does the applicant share Australia’s democratic beliefs and respect its rights; and liberties.
19. The Policy states that “[a] decision maker needs to look holistically at an applicant’s behaviour over a lasting and enduring period of time. The amount of time considered to be “lasting” or “enduring” depends on the merits of each case, but in most cases will go back prior to any visa application”
20. The Policy states that 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.”
21. When considering whether an Applicant who has had previous criminal convictions is a person of good character, Deputy President Wright in Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132 stated:

When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.

ISSUE

22. The issue for review by this Tribunal is whether the Applicant was, as of the 6 February 2018, a good character for the purpose of satisfying section 21(2)(h) of the Citizenship Act.

EVIDENCE

23. The matter was heard in Perth on 17 August 2018. The Applicant appeared in person. An interpreter was present to assist the Applicant. The Respondent was represented by Mr Burgess of Sparke Helmore.
24. The Tribunal received the following evidence:
    • Exhibit A1 – Applicant’s submissions dated 20 June 2018.
    • Exhibit A2 – Character reference dated 19 June 2018.
    • Exhibit A3 – Character reference dated 20 June 2018.
    • Exhibit A4 – Character reference (undated)
    • Exhibit A5 – Character reference dated 17 April 2018.
    • Exhibit A6 – Untitled Photo
    • Exhibit R1 – T documents (T1-T14 pp 1-140).
    • Exhibit R2 – Statement of Facts, Issues and Contentions (SOFIC) dated 27 July 2018.
    • Exhibit R3 – Hearing Certificate (Dated 1 May 2018)
25. The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
26. The Respondent states in respect to the criminal record of the Applicant the following:

4 On 28 October 2009 the applicant was convicted of “destroy or damage property” for which he was fined $400 and ordered to pay Court costs of $76 and compensation of $200. In his submissions, the applicant explains that the conviction arose from an incident of a domestic nature, namely that the applicant:

... and the complainant were in an intimate personal relationship... [the applicant] attached so much of importance to the relationship, that he was upset that the victim did not respond to his calls, that he went to her residence to persuade her to continue their relationship. When she did not respond to the doorbell, in an act of desperation he attempted to push open the door which resulted in damage to the door frame... When his then girlfriend attempted to end the relationship, he was overcome by emotional upheaval and this led to his acting in an inappropriate manner.

5 On 10 September 2012 the applicant lodged an application for conferral of Australian citizenship and this was refused on 11 December 2012 because he had pending criminal court proceedings.
6 On 19 December 2013 the applicant was sentenced to 18 months imprisonment for grievous bodily harm (GBH) and 8 months imprisonment for unlawful wounding. Both sentences of imprisonment were suspended for 18 months. These charges arose out of the applicant’s involvement in an unprovoked attack on two men at their homes on 19 August 2011. The Sentencing Remarks of DCJ Eaton reveal that the applicant attended the house of the two men accompanied by three other accomplices with the intent to assault the two men. After arriving at the house, one of his co-offenders struck each of the victims in the back of the head with a weight barbell, causing serious depression fractures of the men’s skulls. Although the applicant was not the offender who wielded the barbell, the Sentencing Judge noted found he was present standing over the victim at the time. The serious nature of the applicant’s offending behaviour is further demonstrated in the sentencing remarks of Eaton DCJ who noted:

Both complainants suffered serious injuries. Those suffered by Mr [redacted] were the more serious. Neither suffered a permanent injury, in that each has fully recovered. Neither is left with a permanent disability. In each case however the blow to the head could have led to far more serious, even tragic, consequences for the victims. Apart from the fact that a weapon was employed and that the attacks were on that afternoon completely unprovoked, it does seem to me that the fact that all four acted in concert adds to the seriousness of what happened”. (R2 2-3)

27. The Applicant addresses matters in relation to his criminal record in his submission (A1 1-2) accordingly:

1. The first matter
In relation to the first matter and the charge of common assault, the Fairfield Local Court determined on 28 October 2009 that the charge be was dismissed and the plea of not guilty accepted.
In respect of the charge of destroy or damage property, the plea of guilty was accepted and a fine of $400 was imposed. An order of court costs of $76 and compensation of $200 was also imposed bringing the total fine to $676. It is relevant to note that the defendant entered a plea of guilty without contesting the matter. [VQLM] paid the fine in full.
We are instructed that the circumstances surrounding the property damage charge were that defendant in the matter and the complainant were in an intimate personal relationship. We are instructed that the defendant attached so much of importance to the relationship, that he was upset that the victim did not respond to his calls, that he went to her residence to persuade her to continue their relationship. When she did not respond to the doorbell, in an act of desperation he attempted to push open the door which resulted in damage to the door frame. It was not his intention to intimidate her or cause damage to her property. [VQLM’s] actions also need to be considered in the other circumstances in which he was in at the time. [VQLM] had left Sri Lanka out of fear and to seek refuge, leaving behind his dear and close ones. The relationship he was in with the defendant was of great solace and support for him in all respects, particularly emotionally given that he was in a new country with immense uncertainty about his future. When his then girlfriend attempted to end the relationship, he was overcome by emotional upheaval and this led to his acting in an inappropriate manner. Notably, [VQLM] was 23 years of age at the time of the incident, whilst he acknowledges that it is no excuse for his actions, he acted in an immature manner at a break up. We are also instructed that his behaviour was very much out of character and far from his general conduct as a law abiding member of the community. The incident was in 2009, almost seven,( now 9 years ago). We submit that this incident ought not to be held against him.
2. The second matter
The second matter relates to an incident of 19 August 2011 in which [VQLM] was named as one of four defendants. [VQLM] acknowledges that the charges against them were serious and is very remorseful in respect of his involvement, however minor. We attach hereto the sentencing remarks dated 19 December 2013 which clearly demonstrate that his role in the incident was significantly minor and highlights his general good character. His Honour Eaton DCJ observed at page 14 (highlighted for ease of reference) "...in your case, because of your lesser culpability, your antecedence and your personal circumstances, I am prepared to suspend that term for a period of 18 months. I do not propose to impose conditions upon you," after dealing with the reasons for such determination his Honour noted" ... so far as I can tell, you're highly motivated to work and work hard. You also might be highly motivated to be, if you're allowed to be, a productive and law abiding resident of Australia........you'II be released today." On the material before him, His Honour noted at page 8 "I've got no doubt that he has many fine qualities." His Honour also referred to Father Peter Toohey, who got to know [VQLM] since his brief period at Hakea prison, who spoke highly of him and concluded with the opinion that he would make a fine, law-abiding citizen of this country. (emphasis added).
We submit that whilst the charges laid against [VQLM] and the other defendants are serious, it is evident from the court record that [VQLM’s] involvement was acknowledged as minor and duly reflected in sentencing. Further, as outlined above, the court acknowledged and put on record its findings in respect of [VQLM’s] character. Furthermore, his employer and other members of the Australian community provided strong character references demonstrating that [VQLM] is generally of good character. We refer to the attached references particularly in respect of the volunteer work [VQLM] engages in the Perth religious and cultural community. We also refer to the character reference provided by his employer who importantly not only vouched for his good character but also was prepared to accept him back into employment despite a conviction being made. [VQLM’s] employer has provided a further reference in respect of this submission.
We note that upon being discharged from the second matter they continued to employ and [VQLM] still continues in their employ as a Supervisor. We draw your attention to page 7 of the transcript where His Honour deals with [VQLM]’s background. [VQLM] from his humble beginnings has now been promoted to the position of permanent full time supervisor. As the employer puts it "due to his integrity and positive work ethics."
Other character references refer to his contribution to social and cultural activities, his contribution as a volunteer worker at the Hindu temple, indicative of his caring attitude to other persons. His commitment to work and involvement with the community make it highly unlikely that he will be inclined towards antisocial behaviour or re-offend” (original emphasis) (A1 2-3)

28. The Tribunal notes the remarks of the sentencing Judge in relation to the Applicant’s convictions in 2013:

There is evidence, as mentioned, that [VQLM] was carrying a metal bar, but none that he actually used it aggressively... (PT4 23)(R1)
... I have a pre-sentence report for [VQLM] who maintains, according to the author of that report, his innocence based on his claim that he was not at the house on that afternoon. He told the author of the report he was on his way to his evening job at IGA supermarket.
It is the case that prior to trial, he filed and served an alibi notice advising that in the event of him giving evidence at the trial, he might give evidence to the effect that he was not present in Shelley on that afternoon but rather on his way to his work... (PT4 24)(R1)
Finally, VQLM’s representative noted his client’s status of denial in that he was, as VQLM’s representative put it, not able to make admission of his culpability, but he said nevertheless, [VQLM] does express remorse for what happened.(PT4 26)(R1)

Applicant’s evidence

29. At the hearing dated 17 August 2018 the Applicant stated:
    • He arrived in Australia as a 19 year old in 2006.
    • He arrived alone.
    • He had no mentor.
    • He received permanent residency in 2007.
    • In his early days he lived between Melbourne and Sydney, finally residing in Perth where he was in shared accommodation.
30. In relation to his conviction of “Destroy and Damage Property,” under cross examination the Applicant stated:
    • this offence involved a breakdown in a relationship with his ex-girlfriend.
    • that the sentencing magistrate advised him to cease connection with his ex- girlfriend;
    • there was some confusion pertaining to the circumstances of the Applicant’s actions;
    • he was also charged with assault for the events that led up to his ‘Destroy and Damage Property’ conviction, however he was not prosecuted for this; and
    • at the time of this offence he was upset and confused.
31. In relation to his conviction of “Unlawful Wounding” and “Grievous Bodily Harm,” under cross examination the Applicant stated:
    • he was previously assaulted by the two victims;
    • he was not involved in the offences that he was charged and convicted of.
32. In relation to the Applicant’s 2013 convictions, the Tribunal notes that there was a discrepancy in the evidence between the Applicant’s documentary submissions to the court that convicted the Applicant, and what he later submitted to the Tribunal. When asked about this discrepancy, the Applicant stated: “I am telling the truth now.”

CONSIDERATION

33. The issue for determination by the Tribunal is whether the Applicant was of good character at the time of his application.

Was the Applicant of good character at the time of his application: General considerations

34. The Tribunal will assess the Applicant’s character at the time of the Minister’s decision in light of general considerations relevant to the Applicant.
35. The Respondent contends:(R2 6-7)

23 The applicant’s offences weigh against his being of good character.
24 The applicant’s convictions for GBH [grievous bodily harm] and unlawful wounding are extremely serious and this is reflected by the comments of the Sentencing Judge in finding that a term of imprisonment, to be suspended was warranted for each of the applicant’s convictions.
25 In the applicant’s submissions to this Tribunal dated 20 June 2018, the applicant has attempted to downplay the seriousness of these offences. In particular the applicant states that he “acknowledges that the charges against them were serious and is very remorseful in respect of his involvement, however minor” (emphasis added). The applicant also makes a submission that the sentencing remarks “clearly demonstrate that his role in the incident was significantly minor...” (emphasis added). The Minister contends that the applicant’s attempt to downplay these serious crimes (for which he received sentences of imprisonment) demonstrate that the applicant is not truly remorseful for his actions that led to the serious injury of the two victims of his assault. (original emphasis)
26 The Minister also contends that insufficient time has passed since the applicant’s criminal behaviour for the Tribunal to find that he is now of enduring moral qualities, such that a finding of good character could be made, in circumstances where he was sentenced to terms of imprisonment less than two years before lodging his application for citizenship.
27 Having regard to the “Characteristics of Good Character” at page 147 of the Policy, it is clear that the applicant falls short of the required standard of character. In particular, the applicant’s past behaviour demonstrates that:

• He does not respect and abide by the law in Australia;

• He is violent... and has caused harm to others through his conduct; and

• He has been associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia.

28 Likewise, the applicant’s conviction for ‘destroy or damage property’ should be viewed as serious in circumstances where the complainant was in a domestic relationship with the applicant and he broke down her door when she refused to speak with him.
...
30 Similarly, SM Tavoularis recently made similar findings regarding the seriousness of such offending in Karatunov and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 132 where he noted that:

The Commonwealth government takes a very serious stance on domestic violence. Numerous and costly measures are currently being taken to address domestic violence in Australia. Further, in a media release issued in September 2015, Prime Minister Turnbull and a number of other government Ministers expressed the view that domestic and family violence has a devastating impact on the Australian community; that domestic, family or sexual violence is unacceptable in any circumstances, and that the issue must be elevated to our national consciousness. I find this material a persuasive statement of the government’s view on domestic violence.

31 The Minister contends that the applicant’s very serious and recent convictions for serious acts of violence weigh heavily against a finding that the applicant is, at this point in time, a person of good character for the purposes of s 21(2)(h) of the Act.

36. The Applicant submits: (A1 3)

As can be appreciated the purpose of the criminal justice system is not only to punish unlawful activity but also to support reform. Clearly, the court in the second matter, upon the evidence before it, found [VQLM] to be of good character and arguably not in need of being confinement.
The personal circumstances and the subsequent good behaviour and community link of [VQLM] are very which part of those considerations.
It will indeed be unreasonable to visit a reformed individual with consequences which are from his perspective very harsh and would prove to be purely punitive. This is particularly so when [VQLM] has proved to be a good citizen of Australia and when he is embarking to settle down with a partner and to have a committed and fruitful life for himself, his family and the community in general.
We therefore submit that there are overarching considerations which we are sure will convince you that the refusal is both unreasonable and unjustified in the context.
[VQLM] has been a permanent resident of Australia since 31 January 2007 being over 9 years. We refer to the character references provided in respect of his contributions to the Australian community through voluntary work as well as his contributions as a valuable employee.
We are instructed that [VQLM] considers Australia his home and has established strong links to the local community through his contribution.
We also submit that where the criminal justice system has determined that [VQLM] is not a threat to the Australian community and has given him a chance to continue to reside in the wider community, it is unfortunate that his immigration status as a resident should be adversely impacted to the extent that he would be unable to lead his life in Australia, which he regards as his permanent home.
All [VQLM] seeks to do is lead a peaceful life including getting married. After another failed relationship, (referred to at page 7) due mainly to the opposition of her parents, he has now decided to allow his parents to find a suitable partner. His parents with his consent and approval have found a suitable partner and have initiated the customary arranged marriage process. They have visited the girl's family and have made it known in the wider community that she is the intended daughter in law of their family. He is looking forward to leading a peaceful life with his intended partner. We attach photographs taken with family of both sides.
...
[VQLM] supports his elderly parents and his younger brother whose is pursuing studies at an educational institution equivalent to TAFE in Sri Lanka...”

37. The Tribunal, having considered the evidence before it, and having observed the Applicant closely during the hearing, is of the view that there were some inconsistencies in the information provided to the Tribunal, (see paragraph 31 of this decision record). The Tribunal therefore is of the opinion that the Applicant’s evidence is unreliable.
38. The Tribunal is mindful that citizenship is an important part of being accepted into the Australian family, and citizenship comes with tangible and intangible benefits. As such, it is important that, to attain citizenship, one must satisfy requirements such as character requirements.
39. The Tribunal also notes the Applicant’s submission that he was remorseful for his past actions. (PT2 4)(R1) His remorse however, according to all evidence presented to the Tribunal, does not include the actions that resulted in his convictions of “Unlawful Wounding,” and “Grievous Bodily Harm.” The Tribunal notes that the Applicant does not submit he participated in the offences for which he was charged and convicted of in 2013.
40. The Tribunal notes that the Applicant was also remorseful as he felt that his convictions had a negative impact on the small Sri Lankan community in Western Australia.
41. The Tribunal is not convinced that the Applicant understands the gravity of his past actions, and the effect that they have had on his victims.
42. The Tribunal is particularly concerned with the Applicant’s conviction of “Destroy and Damage to Property.” The Tribunal finds that such behaviour has undertones of domestic violence. Whilst the Tribunal understands that the charge of assault was not progressed, the fight against domestic violence in Australia, in the Tribunal’s opinion, goes to the core value of what is, and is not acceptable in the Australian society.
43. The Tribunal further notes the Respondent’s submissions:

29 SM Sosso (as he then was) recently considered the seriousness of domestic violence offences in Ahori and Minister for Immigration and Border Protection [2017] AATA 601 where he stated that:

Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting... 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... (R2 7)

44. The Tribunal also notes the comments of Deputy President Kendall, as his Honour was then, in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 at [45]:

The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised ̶ and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.

45. The Tribunal notes that the Applicant had to pay a fine, costs, and compensation for this serious offence. One can only imagine what impact this act had on the victim.
46. The Tribunal notes that the Applicant’s further convictions of “Unlawful Wounding” and “Grievous Bodily Harm” in 2013 resulted in the Applicant receiving suspended custodial sentences. This causes the Tribunal to question the Applicant’s capacity as a law abiding citizen in Australia.
47. The Tribunal cannot go behind what transpired in the hearing relating to the Applicant’s 2013 convictions. It does not accept that the Applicant played a minor role in the unlawful wounding of another member of the Australian community. The Tribunal furthermore does not accept that the Applicant played a minor role in causing grievous bodily harm to another member of the Australian community. The Tribunal notes that a jury convicted the Applicant as being part of a group of men who perpetuated violence on innocent victims in the Australian community.
48. The Tribunal notes that the Applicant was only sentenced 5 years ago for his 2013 group of offences (convictions of unlawful wounding and grievous bodily harm).
49. This, in the view of the Tribunal, is not sufficient time to evaluate if the Applicant would be a valued member of the Australian society in the future. At this point of time, the Tribunal is not satisfied that the Applicant understands what is required to be a law abiding and productive citizen in Australia.
50. Given the above findings so far, the Tribunal therefore supports the view of the Minister, that the Applicant fails the character test pursuant to section 21(2)(h) of the Citizenship Act.

Was the Applicant of good character at the time of the Minister’s decision of his citizenship application: Applicant’s offences

51. The Tribunal will now assess the Applicant’s character at the time of the Minister’s decision in light of Applicant’s specific convictions. The Applicant has three criminal convictions arising out of two incidents:
    • Destroy or Damage Property.
    • Unlawful wounding
    • Grievous Bodily Harm
52. The Tribunal considers each of the Applicant’s offences in a very serious light.

Destroy or Damage to Property

53. This is an offence that arose as a result of the Applicant breaking down his ex-girlfriend’s the door. The Tribunal notes at the time of this incident the Applicant described his relationship with his girlfriend as “intimate.” (A1 1)
54. The Tribunal notes that the Applicant appears to be down-playing what actually happened in relation to his “Destroy or Damage Property” conviction. He states that “it was not his intention to intimidate her [his ex-girlfriend], or cause damage to her property.” (A1 2)
55. It is the Tribunal’s opinion however, that the Applicant would have indeed intimidated his ex-girlfriend, and did indeed cause damage to her property. The Tribunal considers the Applicant’s acts as serious acts. The Tribunal considers that such charges and convictions are not reflective of behaviour that a law abiding citizen would undertake.

Unlawful Wounding and Grievous Bodily Harm

56. The Tribunal notes that this behaviour involved violence and harm to a victim.
57. The Tribunal notes the court transcript relating to the Applicant’s convictions in 2013 that the nature of the offences by the four men, of which the Applicant was one, involved serious criminal activity involving a knife, a metal bar, head wounds and kicking. All of the above activities occurred without evidence of provocation. (T4 22-3)(R1)
58. The Tribunal notes evidence in the transcript relevant to the Applicant’s 2013 conviction that all four men went to the house on that afternoon with the specific intent of inflicting harm. (T4 18-34)(R1)
59. His Honour DCJ Eaton made the following sentencing remarks:

All counsel concede that, having regard to the seriousness of the offending, sentences of imprisonment are appropriate (T4 22)(R1)

60. The Tribunal considers that whilst the Applicant received a suspended custodial sentence for his conduct, a suspended sentence of 18 months is a significant amount of time, and reflects the seriousness in which the court viewed the Applicant’s criminal behaviour.

Was the Applicant of good character at the time of his application: character references

61. The Tribunal notes that the Applicant has a permanent protection visa in Australia.
62. The Tribunal notes the character references provided on behalf of the Applicant.
63. In summary, the character references describe the Applicant as:
    • being distressed by his past mistakes;
    • a person that looks after his parents and siblings in Sri Lanka;
    • a person who plans to get married and settle down in Perth;
    • a valued and hard-working employee who has taken on the role of a supervisor.
    • a community volunteer and a person of good character.
64. The Tribunal accepts the Applicant is making an effort to address his past criminal behaviour and has become a productive member of Australia.
65. The Tribunal notes that the Applicant has not seen his parents since he arrived in Australia.
66. The Tribunal accepts that the Applicant wants to get married, and wants to live peacefully in Australia.
67. The Tribunal notes that the Applicant was an immature young man when his criminal activities took place, and that he genuinely accepts that he made many mistakes in the past.
68. The Tribunal accepts that the Applicant may be involved in some community activities, and the Tribunal acknowledges that the Applicant’s community involvement is an important aspect to consider. The Tribunal does not attach a great amount of weight to character references provided as there is no independent evidence to test the veracity of such claims.

CONCLUSION

69. The Tribunal accepts that the Applicant has a genuine desire for Australian citizenship and wants to commit to Australia. The Tribunal however believes that more time needs to pass before a proper assessment can be made in favour of the Applicant meeting the character requirements under the Citizenship Act.
70. Having considered all of the evidence before it, the Tribunal is not reasonably satisfied at this point in time, that the Applicant is a good character for the purposes of section 21(2)(h) of the Citizenship Act.

DECISION

For the reasons stated above the Tribunal affirms the decision under review.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

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

Dated: 05 September 2018

Date(s) of hearing:	17/08/2018
Applicant:	In person
Solicitors for the Respondent:	Ashley Burgess, Sparke Helmore

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^[1] The Tribunal notes that the Policy came into force as of 1 June 2016. Further guidance is provided by the Australian Citizenship Instructions (ACIs), dated 1 July 2014, which detail operational instructions and supplement the policy guidance provided in the Policy.