Person Found to Be a Person of ‘Good Character’ Despite Being Guilty for Assault

A person found to be a person of ‘good character’ despite being guilty of assault

Case: Durrani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 540 (25 March 2022)

It is a criterion to obtain citizenship by conferral for the applicant to demonstrate that they are a person of ‘good character’. One sure fire way for a person to not meet this requirement is to have a serious criminal record.

How Do You Show ‘Good Character’ With A Criminal Record?

The Applicant in question had arrived in Australia on 6 September 2016 on a Skilled Independent (subclass 189) visa and on 29 December 2020, he lodged an application for citizenship by conferral. However, his citizenship application was refused due to not satisfying ‘good character’.

The Applicant was a family member, with a wife and two daughters, and a steady, respectable job as an IT software analyst. However, the case officer found he was not of ‘good character’ because he had been found guilty in December 2019 of common assault (domestic violence) for which he was given a Conditional Release Order without conviction for 12 months.

This refusal decision was appealed to the Administrative Appeals Tribunal (AAT).

What Is The Relevant Legislation?

Under section 21(2)(h) of the Citizenship Act 2007, a person applying for citizenship by conferral will need to show that they are a person of good character. The Act doesn’t define ‘good character’, however, a previous case of Irving v Minister for Immigration, Local Government and Ethnic Affairs, states that whether a person is of good character should be assessed according to their “enduring moral qualities” and “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”.

The departmental policy sets out a non-exhaustive list of characteristics of good character including:

What is the length of time since the offence and conviction?
Has the applicant accepted responsibility and shown remorse for their conduct?
How has the applicant behaved since being released from prison or upon completion of any obligations to a court such as a good behaviour bond?
What was the applicant’s age at the time the offence was committed?
Were there any extenuating circumstances relating to the offence?
Is there any other evidence that the person is of good character?

The Applicant Was Found To Be Of ‘Good Character’

The AAT remitted the decision back to the case officer with the direction that the Applicant was a person of good character. The Tribunal member had considered the following factors:

Nature and circumstances of the offences

The victim of the assault was his ex-wife (wife at the time of the incident). The assault occurred after the Applicant was attempting to extricate himself from a verbal argument with his wife. He did not intend to physically harm her.
He has never been aggressive without anyone prior to that incident and the CRO without conviction for 12 months shows that the sentencing judge found his offending to be on the low end of the spectrum.
The offending had occurred more than two years ago.
The victim had sustained no physical injuries from the incident.
The victim had only intended to call the police after the incident to facilitate mediation, as this was practice in Pakistan. She had provided evidence that she had requested NSW Police to drop the charges soon after.

Accepting Responsibility And Showing Remorse

He showed that he had reflected on his past offences and expressed remorse for his offending behaviour. When asked to comment on case note reports from the police that recorded him as saying that “he had done nothing wrong” at the time of offence, he explained the following:

“He now understood that, by ignoring and not speaking to [his ex-wife], his behaviour had also contributed to the incident and offence. He also acknowledged that his behaviour was due to his inability to deal with conflict and the difficulties he and [his ex-wife] were experiencing difficulties in their marriage at the time. He said his wife felt isolated and depressed and was seeing a psychologist, and he now realises that he should have been more supportive.”
“He also said that he initially understood domestic violence was solely ‘physical harm’, but he now understands that domestic violence can include ‘mental or emotional harm’.”

He provided a psychological assessment report – he had previously seen this psychologist 5 times and the psychologist was able to attest to his changes in viewpoint/behaviour and his claims of remorse for the incident.

Any Other Evidence That The Person Is Of Good Character

He provided 7 character references from his friends and colleagues attesting to his good character.
He maintains a loving relationship with his children and has a positive relationship with his ex-wife for the sake of his children. His ex-wife wrote a statement attesting to his good character.
He was employed, at the time, as an IT Specialist and his colleagues attested to his good work ethic and skills as an employee.