Choi and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 879

Choi and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 879 (12 April 2018)

Division:GENERAL DIVISION

File Number(s):      2017/1984

Re:Jong Sik Choi

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:12 April 2018

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – eligibility – whether applicant of good character – significant period of unlawfulness in Australia – failure to pay tax – traffic offences – mitigating factors –  character references – consideration of applicant’s character, circumstances and conduct – decision under review affirmed

LEGISLATION

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

CASES

Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

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

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member A Poljak

12 April 2018

1. Mr Choi (“the applicant”) is a citizen of the Republic of Korea. The applicant first arrived in Australia on 1 June 2002 as a holder of a subclass UD 976 (Tourist) visa. He is currently the holder of a subclass BS 801 (Permanent) visa which was granted on 22 May 2014.

2. The applicant applied for Australian citizenship by conferral on 25 August 2016 (“the application”).

3. On 28 March 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”), under s 24(1) of the Australian Citizenship Act 2007 (Cth) (“the Act”), refused the applicant’s application (“the decision”). The basis of the decision was that the delegate was not satisfied that the applicant met the good character requirement under s 21(2)(h) of the Act.

4. The issue before me in these proceedings is whether, at the time of my decision, the applicant is of good character within the meaning of the Act.

   DEFINITION OF ‘GOOD CHARACTER’

5. The term ‘good character’ is not defined in the Act however guidance can be found in Chapter 11 of the Citizenship Policy, which came into force as of 1 June 2016 (“the Policy”). Further guidance is provided by the Australian Citizenship Instructions (“the ACIs”), dated 1 July 2014, which detail operational instructions and supplements the policy guidance provided in the Policy.

6. The role of the Policy is to offer guidance on the interpretation of the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

7. As to the definition of good character, the Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431]-[432]:

   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 whilst the latter is a review of subjective public opinion…

8. The Policy states that the phrase “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour as being a manifestation of their essential characteristics.

9. The Policy sets out a ‘non-exhaustive’ list of characteristics of good character. Relevantly, a person of good character would, inter alia:  respect and abide by the law in Australia and not cause harm to others through their conduct.

10. In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of character in citizenship applications:

    The 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…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.(my emphasis)

11. That then leaves the question of mitigating factors and/or whether the explanation provided by the applicant outweighs the behaviour in question. As stated in the Policy, the Tribunal is to weigh up certain factors, applying community standards.

12. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way the applicant has; the amount of time that has elapsed since offending; whether the applicant has demonstrated that he can uphold and obey the law; whether he has accepted responsibility and shown remorse for his conduct; and any extenuating circumstances relating to the offending behavior.

    APPLICANT’S CONDUCT

    Unlawfulness in Australia

13. On 1 June 2002, the applicant was granted a tourist visa. On 23 August 2002, the applicant’s tourist visa ceased and he was then granted a subclass TN 686 (Tourist Long stay visa) which expired on 23 February 2003. From this date on he became an unlawful non-citizen in Australia and remained unlawfully in the community until 17 February 2012, at which point he was granted a subclass WC-030 (Bridging) visa. The applicant’s period of unlawfulness in Australia spanned approximately nine years (“period of unlawfulness”).

14. With respect to his period of unlawfulness in Australia, the applicant contends that this was a result of exceptional circumstances. He says that he overstayed his visa for the sole purpose of supporting his young children as he was living as a single parent in Australia at that time. The details surrounding these circumstances are contained in the evidence, particularly in the applicant’s statutory declarations declared 19 December 2016 and 16 January 2017, the statutory declarations of Jung Yeon Choi declared 22 December 2016 and 14 January 2017, the statutory declaration of Chang Ki Choi declared 19 December 2016, the statutory declaration of Hea Kyung Chang declared 16 January 2017 and in the reports of Mr John Howard, clinical psychologist, dated 19 December 2011 and 15 June 2017; all of which I have carefully read and considered. I accept that the applicant suffered personal hardship for a number of years and that he has accepted responsibility for his immigration misconduct. His intention was to care for his two children while they completed their studies in Australia. He clearly did this successfully; as a single father and sole breadwinner. While these factors weigh in favour of a finding that the applicant is of good character they are outweighed by the significant extent of his period of unlawfulness.

15. I am satisfied that the applicant was aware of his unlawful status since his visa expired in February 2003. The applicant’s failure to obey Australian law by remaining in this country as an unlawful non-citizen is a serious matter. Given that the applicant’s period of unlawfulness was for approximately nine years, the seriousness of his conduct is magnified.  

16. Despite the fact that it is now approximately six years since the applicant ceased to be an unlawful non-citizen, his deliberate period of unlawfulness over an extended period of time in Australia raises significant doubts about the applicant’s character and his ability to respect and abide by Australian law. Such immigration misconduct weighs strongly against a conclusion that the applicant is of good character.

    Failure to Pay Tax

17. In his statutory declaration dated 16 January 2017, the applicant acknowledged that he worked in Australia unlawfully as a tiler during his period of unlawfulness and did not pay income tax.

18. Knowingly and deliberately working unlawfully and not paying tax in Australia for a significant period of time is serious misconduct. Such conduct can be viewed as a deliberate and sustained course of self-interested dishonesty. The applicant has freely expressed how he worked “cash in hand” jobs during his period of unlawfulness in Australia to support himself and his family. He knew that what he was doing was wrong yet he took no steps to regularise his status over a period of nine years.

19. While I can sympathise with the applicant’s intentions and difficult personal circumstances, I find it extraordinary that the applicant’s conduct persisted for such a long period of time. It is not unreasonable to expect a person who aspires to the privilege of citizenship should have demonstrated a commitment to Australia by regularising his visa status before seeking to obtain an income in the country. By knowingly remaining unlawful and earning income without paying tax, the applicant evaded his basic civil responsibility.

20. I acknowledge that as soon as the applicant was permitted to do so he established his own tiling business, Choi’s Tiling Pty Ltd, which he continues to operate, and pays taxes. However this is significantly outweighed by the period of time in which he worked unlawfully in Australia. This factor weighs heavily against a conclusion that the applicant is of good character.

    Driving Record

21. The applicant’s New South Wales Driving Record indicates that he has committed a number of driving offences between April 2010 and June 2016, namely;

    (a)exceeding the speed limit <10km/h (3 April 2010);

    (b)not stopping at a red light (9 May 2011);

    (c)use of a mobile phone when driving (10 June 2013);

    (d)exceeding the speed limit <10km/h (18 February 2015);

    (e)not keeping left (15 April 2015);

    (f)exceeding the speed limit <10km/h (16 May 2015); and

    (g)disobey left/right turn at the intersection (1 June 2016).

22. The respondent acknowledges, and I accept, that none of the offences and infringements on the applicant’s driving record constitutes a “serious offence” for the purpose of the Policy. However, the applicant’s driving record does show a repeated pattern of minor offences which reveals a disregard for the law.

23. The Policy repeatedly refers to the importance of the observance of Australia’s laws in assessing character. Unfortunately, the applicant has displayed a tendency to ignore the laws relating to the use of Australia’s roads. However, given the minor nature of the applicant’s driving record, I do not place much weight on this factor.

24. In any event though, it is significantly outweighed by the other considerations.

    Character References

25. The applicant has provided a number of character references, all of which provide support for the applicant’s application for Australian citizenship. This weighs in favour of a finding that the applicant is of good character.

    DECISION

26. I am not satisfied on the evidence, taken as a whole, that the applicant is a person of good character. He is therefore ineligible to become an Australian citizen. That is not to say he might not become eligible in the future. If he continues his good behaviour and manages his financial affairs appropriately over time, including paying taxes, any doubts raised by his extended period of unlawfulness in Australia may be lessened. But at this time, I am not convinced that enough time has passed nor is enough evidence available to support a finding of good character.

27. The decision under review is affirmed.

I certify that the preceding 27 (twenty-seven)paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 12 April 2018

Date(s) of hearing:	10 October 2017
Counsel for the Applicant:	C Jackson
Solicitors for the Applicant:	Immigration Solutions
Solicitors for the Respondent:	L Gell, Clayton Utz