The Applicant was born in Taiwan in 1959, left school at about age 15 and worked as a truck driver and in security. While in military service, about 1980, he was diagnosed with schizophrenia and placed in a 'psychiatry institute' for some time. He later wrote two books on the causes of mental illness and defects in the government treatment of hospital patients. He married but had great difficulty in finding employment sufficient to support himself and his family. This has been said to result from the stigma of both mental illness and his anti-government publishing. He felt abandoned by his family and discriminated against. He and his wife contemplated suicide. He and his family arrived in Australia in 2002 and in 2008 he was granted a Subclass 202 (Global Special Humanitarian) visa enabling permanent residence. His partner and their seven children all hold the same class of visa. Four of the children were born in Australia. All family members have resided continuously in Australia since arrival. The Applicant was granted a disability support pension and he has never been employed in Australia. His wife has an intellectual disability.
While in Taiwan, the Applicant came to believe that if he were divorced the family would receive more social security benefits than if he remained married. He and his wife then obtained a divorce even though they have continued living together and had several more children. They have not re-married. The Applicant's belief was, predictably, quite wrong and the family barely managed.
After arrival in Australia, the Applicant was unable to work and was assisted by Red Cross. In 2010 the family of two adults and seven children lived in cramped circumstances with only three bedrooms. On 28 March 2010, the Applicant accused his 12 year old son of frightening the baby and of disobedience. He punched the boy several times. An older sister called DOCS and the police attended. The Applicant maintained his right to discipline his son in the way he chose. He was charged with common assault of his son. He pleaded not guilty and contested the charge but on 6 September 2010 he was convicted in the Local Court and placed on a bond to be of good behaviour for two years. The magistrate also made an apprehended domestic violence order for three years concerning each of the seven children.
The evidence in the Local Court from two of the children was that the Applicant frequently became enraged by any misconduct, shouted at the children and hit them. The eldest daughter said that she woke on that morning to the Applicant shouting angrily for 30 minutes to an hour "like heaps of times before" and later she saw him punch her brother. He had hit that brother frequently in the past. She said that after she called DOCS and the police on that day "he don't hit me anymore but he continued hitting [the victim] ... after that".
The victim said that his father had accused him of frightening the baby and hit him a number of times and then later that day when the Applicant told him to take his bowl from the living room to the kitchen, he had pushed his father to get to the bowl and his father had then punched him three times, once in the face. The Applicant had hit him before. When the police arrived the Applicant was at first polite but "the shouting and aggressive nature [began] very quickly", especially when the police placed him under arrest.
On 26 May 2011 the District Court dismissed the Applicant's appeal against conviction and sentence. On each occasion the Applicant was not legally represented although he had a Mandarin interpreter.
[2]
The Respondent tendered the evidence from the Local Court, various police documents and correspondence leading up to the reviewable decision, but called no oral evidence. The T-documents included a psychological assessment by Ms Soo See Yeo, a highly qualified Transcultural Psychologist, dated 8 November 2006. The Applicant and his family were referred to Ms Soo by their then case manager from Red Cross and the report seems to have been prepared to support their application for permanent residency in Australia. Ms Soo noted the history of diagnosis in Taiwan and the prescription by a psychiatrist in Australia of Zyprexa (olanzapine - a major anti-psychotic medication) for the treatment of his schizophrenia and related psychosis (although he said he did not take any of the medication).
There was also tendered a Justice Health clinician's report on the Applicant's mental state prepared at the Local Court. This report obtained a detailed history consistent with that given to Ms Soo, and noted the Applicant to be distracted at times with increased rate of speech, circumstantial in his answers and agitated. He seemed be responding "to internal stimuli" and it was difficult to get him to concentrate on the interview. He said that the son he assaulted was not his son, but the result of his wife's affair with his brother but could offer no reason how he knew this to be so. He was assessed to lack insight and to have grossly impaired judgment. The final impression was that he appeared to have an untreated psychotic illness with delusions, apparent auditory hallucinations and severe disturbance of thought form, that is, he was a "mentally ill person" within the terms of the Mental Health Act 2007. The Applicant was admitted to the Concord Hospital psychiatric unit for ten days.
The Applicant said of this incident: "The doctor said that I requested treatment but I wrote a book about the treatment of mental problems so I wouldn't request to go to the hospital. It is a severe violation of human rights ...".
This was one of a number of misunderstandings which arose from the Applicant's incomplete grasp of English or his fixed beliefs. The Justice Health report concluded: "He presents as a risk of significant harm to others. He requires hospitalisation as the least restrictive environment for effective care" (my italics), but the Applicant interpreted "requires" as an assertion that he requested treatment rather than an opinion that he needed care. I pointed this out in the hearing but the Applicant was not convinced.
Also tendered was a police report of an incident at a child care centre in August 2011, when the manager called police saying that the Applicant had become aggressive after one of his children had been injured. Police attended and the Applicant agreed not to approach Centre staff. Again, this seemed to arise from misunderstanding or a sense of grievance.
The Applicant gave evidence stating his occupation as "patient". He said that he loved and protected his children and wanted only the best for them. He said that all his children were bright and smart with a son and daughter at university, and other sons having scored over 80 on NAPLAN and obtained other awards from school. He told the Tribunal "I am their model and if their father was no good they wouldn't turn out like that ... I have seven children and sometimes they are difficult to manage but I don't beat them, I manage them with love and care. In a word, since that incident I have not beaten my children. I respect them, I protect them, I love them."
He was cross-examined about the assault incident:
[3]
Q: Did you beat him for discipline?
A: I don't want to answer this question
[4]
Q: Are you saying you didn't hit [the son]?
A: If I didn't why did the magistrate give me two years so of course I hit the child ...
Q: Did you hit him because you were disciplining him?
A: Ask his opinion ...
[5]
The Applicant flatly denied the evidence of his son that "Dad is high tempered about three times per week", and his daughter's evidence that "[a]fter I called the DOCS he don't hit me anymore but he continued hitting [the boy]" and that he had hit the boy before the day of the incident. However, early in his evidence the Applicant complained that "the delegate [decision-maker] thought I did not do any rehabilitation, but after that incident I stopped beating my child. That is evidence of my rehabilitation ...".
The Applicant called two character witnesses and his wife. Mrs Gao visited the home and said the Applicant "created a free and joyful climate for family and children. She said "I have never seen for many years never a finger laid on children" but agreed she had not visited regularly in 2010 and had been in China for part of that year. Mr Sui lodged with the Applicant and said he had never seen him hit any child, while his wife denied seeing the Applicant hit his son. They painted a picture of ideal family life at odds with the police reports, psychologists' accounts and the Applicant's demeanour. I preferred the more contemporaneous evidence of the two children at the Local Court - the daughter who called the police and the son who said this was not the only occasion he had been struck.
[6]
The question may be asked - what is the significance for "good character" under the Citizenship Act of an incident in which a father punched his young son? The importance may lie in the light it sheds on the father's attitudes and his "enduring moral qualities". This was the phrase used to describe "good character" in Irving v Minister for Immigration, Local Government and Ethnic Affairs(1996) 68 FCR 422 as approved in Minister for Immigration and Ethnic Affairs v Baker(1997) 73 FCR 187 and followed in Re Clough and Minister for Immigration and Multicultural and Indigenous Affairs[2005] AATA 1158.
The test of "good character" in the Citizenship Act is different to the test under s 501 of the Migration Act 1958. It requires a higher standard "because of the importance of citizenship and the greater responsibilities and privileges attached to it" (Re Milnar and Minister for Immigration and Multicultural Affairs(1997) 48 ALD 771).
Another Tribunal stated the importance of values and contribution to the community: "[t]he 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" (Re Fenn and Minister for Immigration and Multicultural Affairs[2000] AATA 931 at [8]). The Applicant has not been employed since arrival in Australia in 2002. He has not contributed positively to the community. It is clear that he does not share some Australian values such as tolerance and patience.
The delegate's decision noted that Citizenship policy requires demonstration of a change in character in the period since becoming free of obligation to the Court, that is, expiry of the bond. This is because it is the underlying nature of the person which is being assessed - not merely his past actions. "If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed" (Irving at 425).
Assault on a 12 year old child, habitual irritability and uncontrolled anger affecting family life may well reflect adversely upon character. The Instructions include "crimes against children" as an example of serious crimes.
As to evidence of reform, the Applicant said:
[7]
... the delegate thought I did not do any rehabilitation, but after that incident I stopped beating my child. That is evidence of my rehabilitation.
[8]
It should be recalled that the Applicant was placed on a three year apprehended domestic violence order following the incident. Absence of beating is not itself evidence of rehabilitation.
At the time of the assault, at the Local Court, in his email of 5 February 2013 to the Minister's delegate and at the Tribunal, the Applicant continued to maintain that he was not committing a crime, merely disciplining his child:
[9]
I was teaching my son a lesson, my son called the police ... generally when he was not following my instructions I would give him a hit ... usually I only hit him on his body or on his arm ... he fought back ... so I hit him on his face ... I did not pay much attention, I lost control. I, I, I lost control of my emotions [police interview Q89 to Q111 excerpts]
[10]
In his evidence in the Local Court in 2010 the Applicant said:
[11]
Q: ... And when you hit your son what were you trying to do by hitting your son?
A: Because he didn't listen to me.
Q: So were you trying to teach him a lesson?
A: Yes. Yes he should be punished. That happens too many times, he didn't listen to me.
And:
... If he had not fought back to me I wouldn't have hit him.
[12]
... I am from Taiwan. In our culture to discipline your children is the right thing. I was not aware that to disciplining my child in, or even to hit my child, is a kind of action, I mean, is a kind of activity that breached the law ...
[13]
In his email dated 5 February 2013 to the Minister's delegate:
[14]
My conviction is not a crime. It is for disciplining my kid.
[15]
And in his Tribunal evidence, when asked about the rejection of his appeal to the District Court against his conviction:
[16]
Judge said hitting was not a crime and I walked away ... the judge said if he frightened child for a long time ... judge said not a crime.
[17]
In fact the District Court judge dismissed the appeal and confirmed the conviction.
The Applicant showed that he had not changed his views since the offence and demonstrated an unwillingness or inability to alter his attitudes. He has not shown remorse or an understanding that the way he treated his children is unacceptable in this community.
The Applicant stated his belief that for some 25 years he has had a brain cancer, that the tumour causes uncontrollable twitching of his hands, that a CT scan showed the cancer (which it did not) and that he has kept the cancer at bay with vitamins. He was diagnosed with schizophrenia in Taiwan, again by a psychologist in Sydney in 2006 and found to have a psychotic illness by Justice Health in 2010, but he has refused all treatment and has continued to deny he has any mental illness.
Section 21(3)(d) of the Act provides that a person is eligible for citizenship if there is:
[18]
... a permanent physical or mental incapacity at that time that means the person is not capable of understanding the nature of the application
[19]
but that is conditional on the person being a resident, being likely to continue residence and is of good character. This subsection would not apply to the Applicant. He is able to understand the nature of the application. His character is in question.
[20]
In his recent past, the Applicant has shown anger, argumentativeness, extreme intensity in interpersonal relationships and delusional beliefs. These characteristics are some of the positive signs of schizophrenia are set out in DSM-IV-TR "Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revised" (Manual) of the American Psychiatric Association (an extract of which was provided to the parties). The signs include matters which are commonly regarded as aspects of character.
Neither party made any submission regarding the Manual entry, except that the Respondent maintained that there was no evidence that the Applicant was mentally ill. The Respondent's point was that this meant that illness was not a mitigating factor which might assist the Applicant. Mental illness is not of itself a disqualification for citizenship nor does it necessarily affect character. The Applicant denied that he had any mental illness and the Instruction places the onus on the Applicant to provide evidence supporting any claim of extenuating circumstances. No such claim is made. The behavioural matters, noted to persist over time, bear upon the evaluation of the Applicant's character. As the Instructions indicate "general conduct and associations" as well as criminal convictions indicate moral qualities.
The Applicant committed an assault on his own child because, as on previous occasions, he was carried away by his anger. He is not remorseful, he has no insight into why other people may regard his discipline as brutal or a crime and he is unable or unwilling to alter his views. The Respondent submitted that insufficient time has elapsed since the expiry of the bond to be confident of a change and the Domestic Apprehended Violence Order has not expired. My view on the evidence is that the Applicant probably believes that "the judge said not a crime" even though the judge dismissed his appeal. He acted and continues to act on his strongly held beliefs, many of which find little acceptance in this community. I find that the offence was part of a pattern of behaviour which would suggest the Applicant is not of good character and there is no convincing evidence of a change in character.