Britos and Minister for Immigration and Border Protection (Citizenship)

[2017] AATA 1282

Britos and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1282 (16 August 2017)

Division:GENERAL DIVISION

File Number(s):      2016/2048

Re:Elmerito Britos

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:16 August 2017

Place:Sydney

The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 30 March 2016 to refuse Mr Britos' application for Australian citizenship is affirmed.

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

Deputy President J W Constance

CATCHWORDS

CITIZENSHIP – citizenship by conferral – whether applicant of good character – whether has enduring moral qualities – whether will respect and abide by Australian laws – whether truthful and does not practise deception – whether has evaded immigration control – unlawfully resided in Australia – resided in Australia without a visa – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(2), 24

Migration Act 1958 (Cth) s 235(3)

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

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

REASONS FOR DECISION

Deputy President J W Constance

16 August 2017

INTRODUCTION

1. Mr Britos applied for Australian citizenship by conferral on 16 November 2015.

2. A delegate of the Minister refused the application on the ground that Mr Britos had not established that he was of good character on 30 March 2016, being the date the decision was made. Mr Britos has applied to the Tribunal to review the delegate’s decision.

3. For the reasons which follow the decision under review will be affirmed.

   BACKGROUND

4. Unless otherwise stated, the findings of fact set out in these reasons for decision are based on the evidence of Mr Britos. I am satisfied of the facts found on the balance of probabilities.

5. Mr Britos was born in the Philippines in 1959. He is a citizen of that country.

6. Mr Britos first entered Australia in January 1989 when he was granted shore leave from the merchant vessel on which he worked as a mechanic. He did not return from that leave and has resided in Australia ever since. At the time he was 29 years old.

7. Over the ensuing years Mr Britos engaged several migration agents in an endeavour to obtain a visa so that he could become a lawful resident.  His residency history is as follows:

   ·between 1989 and October 1996 (approximately seven years) he remained in Australia as an unlawful resident;

   ·29 October 1996 he was granted a bridging visa;

   ·31 July 1997 his bridging visa expired;

   ·July 1997 to July 1999 he remained unlawfully in Australia;

   ·29 July 1999 he applied for a visa and was granted a bridging visa until 5 August 1999;

   ·August to October 1999 he resided in Australia unlawfully;

   ·27 October 1999 he was granted a bridging visa until 18 July 2003;

   ·18 July 2003 to 9 December 2009 he remained in Australia as an unlawful resident;

   ·9 December 2009 he was granted a bridging visa in association with his application for a partner visa;

   ·9 December 2009 to date he has resided lawfully in Australia on various visas, the last being a permanent residency visa granted in December 2011.[1]

   [1] Exhibit R1 T2, supplementary T10, T5 and supplementary T8.

8. In October 2008 Mr Britos married an Australian citizen.[2]

   [2] Exhibit R1 vol. 1, p.79.

   ISSUE FOR DETERMINATION

9. The issue before me is whether, at the time of this decision, Mr Britos is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).

   LEGISLATION

10. Applications for conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth).

11. Section 24 of the Act provides:

    (1)    If a person makes an application under section 21, the Minister must, by 

    writing, approve or refuse to approve the person becoming an Australian citizen.

    (1A)    The Minister must not approve the person becoming an Australian citizen

    unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

12. Section 21(2) of the Act establishes the requirements of eligibility for the grant of citizenship. It provides in part:

    (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    …

    (h)is of good character at the time of the Minister’s decision on the application.

13. This is the only subsection that is in issue in the present application. As the Tribunal stands in the shoes of the decision-maker these requirements of the law are applicable to the decision that I must make.

    Citizenship Policy

14. The Citizenship Policy has been adopted by the Minister to guide those making decisions under the Act. Chapter 11 provides “guidance on the administration of the ‘good character’ provisions under the Act” and defines “for administrative purposes, the meaning of ‘good character’”.

15. The Citizenship Policy reflects government policy and is not binding on the Tribunal. However the Tribunal should apply the Policy unless there are “cogent reasons to the contrary”.[3] I am satisfied in this matter that there are no reasons why I should not apply it.

    [3] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634, 645.

16. Chapter 11 provides in part:

    ‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.[4]

    [4] At p.145.

17. This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[5]

    [5] (1996) 68 FCR 422, 431-432 (citations omitted).

18. 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 to 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 has 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. After referring to the judgment of the Court in Irving, Chapter 11 provides, in part:

    In this context, “moral” does not have any religious connotations. The phrase “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 Australian society.

    The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.[6]

    [6] At p.145.

19. In considering the Citizenship Policy I have taken into account that it refers to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[7] in which the Tribunal said:

    In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.

    [7] [2011] AATA 304 at [120].

20. The Policy goes on to say that an applicant of good character would, amongst other things, respect and abide by the law of Australia, and be truthful and not practise deception in his or her dealings with the Australian Government.[8] All of these authorities along with the Citizenship Policy make it clear that abiding by Australian laws is a very important factor that I need to consider.

    CONSIDERATION

    [8]  At p. 147.

    Characteristics of a person of good character

21. Chapter 11 provides a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of the Chapter. They include:

    respect and abide by the law in Australia and other countries

    ……

    not have evaded immigration control …… .

22. It is a matter of weighing up the various factors in the evidence before me. Under the heading of Weighing up the character decision, the Policy provides:

    Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.

    In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

    ·     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.[9]

    [9] At pp. 149-150.

23. I note that, once again there is a reference to the question of whether an applicant for citizenship has upheld and obeyed the laws of Australia.

    Mr Britos’ evidence

24. Mr Britos’ statement, made 29 September 2016 for the purposes of these proceedings,[10] includes the following:

    6.At the time, I was a young man in my late twenties and miserable. My father was dying from work-related lung disease and I had gotten caught up in a dispute between the ITF union and my employer and believed I would be blacklisted from future voyages. With my friends’ encouragement I chose not to return to the ship.

    7.Though I had only had vocational training in the Philippines, I understood that what I did was wrong. However my father was ill and would die in June 1989 and I needed to pay for his medication and support my mother and younger brother, who was still at school. I was doing odd jobs as a cleaner and market hand but I could send money back to the Philippines and I felt I was doing the best by my family.

    [10] Exhibit A1.

25. When questioned by Counsel for the Minister Mr Britos gave evidence that:

    ·when he left his ship he knew that he required a visa to remain in Australia;

    ·he knew that he had no right to work in Australia without a visa;

    ·he had a number of casual jobs as a cleaner and market hand between 1989 and 2009 for which he was paid in cash;

    ·he did not pay tax because he did not have “legal papers”;

    ·he first paid tax in Australia in 2011;

    ·initially he lived in Australia with his friends who provided him with free food and accommodation and he received “voluntary” gifts of cash from them in return for his help;

    ·he provided support to his mother in the Philippines only when he had money;

    ·at the time he left his ship, his youngest brother was 24 years old and all of his brothers had finished school;

    ·before he left his ship he was able to help out with the cost of his father’s medication but after he remained in Australia he was unable to do so as he had no money;

    ·in 1997 he understood that the Refugee Review Tribunal had refused his application for a protection visa;

    ·he remained in Australia because he thought his job opportunities were better than those in the Philippines.

    Weighing the various factors

26. Mr Britos' failure to obey Australian law by remaining in this country for many years as an unlawful non-citizen is a serious matter. He was aware of his unlawful status when he failed to return from shore leave and during those times he did not hold a valid visa.  I am satisfied that he was prepared to break Australian law because he wanted to live in Australia and because he believed his prospects of employment in this country were better than in his home country.

27. I do not accept Mr Britos’ evidence that he stayed in Australia to enable him to pay for his father’s medication.  He said that he was able to assist while he was working on the ship but was unable to do so after he left as he was confused and had no money.  His father died six months after Mr Britos entered Australia and he remained here unlawfully for many years after his father’s death.

28. I also do not accept Mr Britos’ evidence that he was supporting his brother who was still at school. Contrary to what he said in his statement his youngest brother was 24 years old at the time Mr Britos entered Australia and none of his brothers was at school at the time.  His evidence in this regard was misleading and he gave no explanation for this.

29. Counsel for Mr Britos argued that, although his client had worked in Australia without paying tax, it was not clear that he had broken any law. He queried whether the cash Mr Britos received between 1989 and 2011 should be classed as “ordinary income”.[11]  

    [11]  Applicant’s Written closing submissions at para.6,

30. I do not agree with this submission. Whatever may have been the situation in relation to the receipt of cash by Mr Britos, there is no doubt that he resided unlawfully in Australia for many years. Subsection 235(3) of the Migration Act 1958 (Cth) provides:

    An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.

31. Despite his being granted the privilege of a visa on three occasions, when the visas expired, Mr Britos returned to being an unlawful non-citizen and made no attempt to leave Australia.  Instead he continued to work in breach of the law.  At no time did he attempt to return to the Philippines and apply to migrate to Australia lawfully.

32. Chapter 11 of the Policy refers to the “enduring moral qualities of a person”. That phrase encompasses characteristics “which have been demonstrated over a very long period of time”. Importantly, in this application, it refers to ethical behaviour “conforming to the rules and values of Australian society.” For most, if not all, of the first 20 years Mr Britos resided in Australia he did not conform to the rules and values of Australian society. He breached our immigration laws on an ongoing basis.  Regardless of whether he committed any other offences, Mr Britos did not conform to the values of Australian society in that he received money in exchange for his labour without submitting a taxation return. Whilst there is no evidence of the amounts he received, the only person in a position to give this evidence was Mr Britos and he did not do so.  He said that the reason he did not pay tax was because he did not have “legal papers”.  He did not say that he did not earn a taxable income.

33. I have taken into account the evidence of Ms Miranda, the Manager/Owner of the bakery business in which Mr Britos has been employed for the last six years.

34. I accept the evidence of Ms Miranda that Mr Britos has been an “outstanding worker”.[12] Ms Miranda also stated that his skills as a baker are an “essential” requirement of the continued operation of the business. However when giving evidence, she said that by “essential” she meant that it would be inconvenient if it was necessary to find another person to fill his position.

    [12] Exhibit A2, statement dated 23 September 2016.

35. I have taken into account also the evidence of Mr Luciano who is the Senior Pastor of the Church regularly attended by Mr Britos.  Mr Luciano has known Mr Britos for more than 10 years and is aware that Mr Britos stayed in Australia after his visa had expired. In the opinion of Mr Luciano, Mr Britos was remorseful of having overstayed in Australia and had always shown a willingness to serve the community.  Mr Luciano did not say that he was aware of the manner in which Mr Britos entered Australia.

36. I am satisfied that Mr Britos has been a lawful resident since 2011 and has not committed any offences in that time. He has been employed and has contributed by paying the appropriate tax on the income he has earned. 

37. Although Mr Britos says he is remorseful of his past conduct I am not satisfied that this is so.  Even in his statement made in September 2016 he refers to his being young at the time he stayed in Australia illegally and that he was encouraged to do so by friends.  Mr Britos was 29 years old at the time he decided to remain here.  He was an experienced seaman. He was 50 years old when he last resided here illegally. I do not accept that his youth was a factor or an excuse. I am satisfied Mr Britos took the action he did for his own benefit as he wanted to live here and believed he had better prospects of employment in Australia than in the Philippines.  He was not prepared to observe the laws of the country in which he wished to live permanently.

38. The change in Mr Britos’ attitude to the laws of Australia only came about when he was granted a permanent visa. Up until that time, he was determined to live and work in Australia, whether or not he was lawfully entitled to do so.  Further, even in making his application to this Tribunal, Mr Britos has not been reliable in the evidence he has given, particularly in relation to the alleged need to assist his brother in 1989. In these circumstances I am not satisfied that Mr Britos has exhibited the “enduring moral qualities” to enable me to be satisfied that at present he is of good character.

    CONCLUSION

39. The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 30 March 2016 to refuse Mr Britos' application for Australian citizenship will be affirmed.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated: 16 August 2017

Date(s) of hearing:	28 March 2017
Date final submissions received:	15 May 2017
Counsel for the Applicant:	R Chia
Solicitors for the Applicant:	J Icao, Jessie Icao Solicitors
Counsel for the Respondent:	R Francois
Solicitors for the Respondent:	A Keevers, Sparke Helmore Lawyers