Dang and Minister for Home Affairs (Citizenship)

[2019] AATA 32

Dang and Minister for Home Affairs (Citizenship) [2019] AATA 32 (17 January 2019)

Division:GENERAL DIVISION

File Number(s):      2018/1489

Re:Van Ngoc Dang

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member K Raif 

Date:17 January 2019

Place:Sydney

The Tribunal affirms the decision under review.

.............................[sgd]....................................
Senior Member K Raif

CATCHWORDS

CITIZENSHIP – eligibility – application for Australian citizenship by conferral – permanent resident – refusal of citizenship – unlawful non-citizen for a period of almost twelve years – whether the applicant is of good character – application unable to satisfy good character requirement – decision under review is affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

Chen and Minister for Immigration and Citizenship [2007] AATA 1815

Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Fenn v Minister for Immigration [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Zheng v Minister for Immigration (2011) AATA 304

SECONDARY MATERIALS

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

Australian Citizenship Instructions (Cth) issued 1 July 2014

REASONS FOR DECISION

Senior Member K Raif

BACKGROUND

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 March 2018 to refuse to confer Australian citizenship to the applicant under the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act” or the “Act”).

2. The applicant is a national of Vietnam, born in July 1975. He entered Australia in 1997 and was subsequently granted a permanent visa in July 2014.

3. The applicant applied for Australian citizenship by conferral on 15 September 2016. On 6 March 2018 a decision was made to refuse that application because the delegate was not satisfied that the applicant was of good character as required by section 21(2) of the Citizenship Act. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 8 January 2019. The Tribunal also received oral evidence from several of the applicant’s friends. 

5. The issue before the Tribunal is whether the applicant meets the eligibility requirements for the conferral of Australian citizenship, in particular, whether the applicant is of good character at the time of the decision, as required by section 21(2)(h) of the Act. For the reasons that follow, the Tribunal has concluded that the applicant does not meet these requirements and that the decision under review should be affirmed.

   RELEVANT LAW

6. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian Citizen. Subsection 24(1) of that Act provides that 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. Section 52 of the Act permits a person to make an application to the Tribunal for review of the decision under section 24 to refuse to approve the person becoming an Australian citizen.

7. The Act relevantly provides, at subsection 21(2)(h), 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”.

8. The term “good character” is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy (“the Policy”) and the Australian Citizenship Instructions (“the ACIs”). The Tribunal is not bound to strictly apply the Citizenship Policy but such policy should be considered if it is consistent with the Act and 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.

9. With respect 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”.

10. 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.

11. In Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815, the Tribunal articulated its approach to interpreting the language of the good character test, as it then appeared in section 13(1)(f) of the Australian Citizenship Act 1948 (Cth) (at [18]):

    “The wording of the test is important. It does not require that the Minister form an adverse view of the applicant's character. The Minister must be positively persuaded that the applicant is of good character”.

12. 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. The Policy states that the decision-maker is to weigh up certain factors, applying community standards. 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 lapsed 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 offences.

    IS THE APPLICANT A PERSON OF GOOD CHARACTER?

13. The delegate formed the view that the applicant is not a person of good character, having regard to the applicant’s immigration history. Information in the primary decision record indicates that the applicant entered Australia on a Student Visa in January 1997 and was granted another Student Visa which expired in March 2000. The applicant then remained in Australia as an unlawful non-citizen until June 2004 when he was located by Immigration and detained. On 24 June 2004 the applicant was granted a Bridging visa E on departure grounds but he did not depart Australia and again remained in this country as an unlawful non-citizen until June 2012 when the applicant applied for a Partner visa. The applicant was granted the temporary Class UK Partner visa in August 2013 and a permanent Class BS Partner visa in July 2014.

14. The applicant concedes in his various submissions to the delegate and the Tribunal that he had overstayed his visa and remained in Australia unlawfully for a period of approximately twelve years. The applicant concedes that he worked and did not pay tax during that period. In his statutory declaration dated 9 June 2017 the applicant states that he had a relationship with his partner from 2004 and in October 2007 his partner gave birth to their daughter. He subsequently applied, and was granted, a Partner visa. The applicant states that the period of many years when he overstayed was ‘out of his control’ because he was in love. The applicant states that since having been granted a permanent visa in 2014 and until now, he has been working hard and paid taxes and abiding by the Australian law. The applicant states that he is a person of good character.

15. There is no evidence to indicate that the applicant has not complied with any other laws and the conduct in question relates to the applicant’s non-compliance with Australia’s immigration laws. The Tribunal considers such non-compliance to be significant.

16. Information set out above indicates that the applicant had been residing in Australia as an unlawful non-citizen for a period exceeding twelve years. In the Tribunal’s view, this constitutes a serious breach of Australia’s laws. The applicant’s evidence is that he had been in a relationship with his partner from 2004. If that is the case, the applicant may have had the opportunity to regularise his status much earlier than 2012 when he approached the Department of Immigration. The applicant told the Tribunal that he did not know he could apply for a Partner visa but his evidence also indicates that he made no inquiries about the possibility of regularising his status. The applicant’s failure to do so indicates his indifference for the Australian laws.

17. The primary decision record indicates that in June 2004 the applicant was granted a Bridging E visa on departure grounds. However, the applicant had not departed Australia. Instead, he continued to live here unlawfully for a further eight years. In oral evidence to the Tribunal the applicant stated that when he was interviewed by the Departmental officer, he was intending to leave Australia but after he was released, he thought about it further and spoke to some friends and decided that he preferred to stay in Australia. The Tribunal finds that evidence unconvincing. The Tribunal does not accept that the applicant had a genuine intention of departing Australia but changed his mind immediately or within a very short time after being released from detention. The Tribunal is mindful that by that time, the applicant has been living in Australia unlawfully for approximately four years and he had ample time to consider whether he wished to live in Australia or depart Australia. He also had the time and the opportunity to explore what life in Vietnam would be like for him. The applicant would have been well aware of his unlawful status and the possibility of having to leave the country if detected. The Tribunal does not accept that the applicant had not considered these matters from the time his visa expired in 2000 until his detection and detention in 2004 and that he first turned his mind to these matters after being released from detention. The Tribunal finds that the applicant never had a genuine intention to depart Australia. The Tribunal finds that the applicant had been deliberately untruthful in his dealings with Immigration in order to extend his stay in Australia and that he has also been untruthful in his evidence to the Tribunal concerning these circumstances.

18. The primary decision record also indicates that in 2004 the applicant was located at a manufacturing company which indicates that the applicant was employed while an unlawful non-citizen. This is also a breach of section 235(3) of the Migration Act. The Tribunal finds that at least until 2012, the applicant had consistently flouted the Australian immigration laws and did so knowingly and deliberately.

19. There is before the Tribunal, a copy of the applicant’s application for the Bridging visa, which was signed by him. The applicant had made an undertaking in that application not to work and not to undertake any study. The applicant undertook to depart Australia by 7 July 2004. The application was accompanied by a statutory declaration sworn by the applicant on 22 June 2004. The applicant also made arrangements to pay $10,000 for compliance with visa conditions. The applicant had not complied with these conditions, as on his own evidence, he continued to work and he had not departed Australia by the specified date. As the Tribunal has formed the view that the applicant did not have any intention to depart Australia, the Tribunal does not accept that the applicant ever had any intention to comply with the conditions of his Bridging Visa. The Tribunal finds that on that occasion also, the applicant had also been untruthful in his dealings with Immigration.

20. The applicant also concedes in his oral evidence to the Tribunal that in 2004 when he was located at his place of work by Immigration Compliance, he gave a false name and a Medicare Card in a different name. The Tribunal finds that the applicant had deliberately misled the Immigration officers with respect to his identity in order to be able to remain in Australia unlawfully for a longer period.

21. The applicant repeatedly told the Tribunal that he preferred life in Australia and that is the reason he decided to remain in Australia unlawfully. Despite his expression of remorse, it appears that the applicant believes that his desire to remain in Australia justified his breach of the immigration laws. The applicant also stated that he appreciated the human rights and protections in Australia which did not exist in Vietnam. That may have been the case but in the Tribunal’s view, the applicant’s preference to stay in Australia, for whatever reason, did not justify the applicant’s significant breaches of the immigration laws. The applicant does not claim that he would have been subjected to any harm or persecution in Vietnam. Rather, in his evidence the applicant made broad and un-particularised statements about lack of human rights and protections in Vietnam compared to Australia. The applicant was somewhat evasive when asked whether he personally feared any harm upon returning to Vietnam. The Tribunal is not satisfied on the evidence before it that the applicant had any fear of harm or persecution upon returning to Vietnam and that such fear was the reason for his decision to remain in Australia. Rather, the applicant’s evidence is that he preferred life in Australia. The Tribunal notes that if the applicant did believe he could not return to Vietnam, the applicant had the opportunity to seek a protection visa in Australia. There is no evidence that the applicant had taken any steps to regularise his status in Australia, including making an application for a protection visa if he believed he could not live in Vietnam. The Tribunal does not accept that the applicant remained in Australia because he needed its protections or respect for the human rights.

22. In his Statement of Facts, Issues and Contentions dated 21 September 2018 and his declaration of 4 July 2018 the applicant states that after coming to Australia on a Student visa, his parents’ business failed and they could not support his study in Australia and he lost all hope of good education. He tried to delay his departure from Australia to find a solution and lied to his parents that he would pay for study through employment. The applicant describes the hardships he had suffered during that period. The Tribunal considers these claims problematic. Firstly, the applicant presented no probative evidence to support his claim that his parents’ business failed and that his parents could not support his study in Australia. The Tribunal is not prepared to accept these assertions without probative evidence. Secondly, even if that was the case, the Tribunal does not consider that the applicant’s desire to remain in Australia as a holder of a Student visa in circumstances where he could not undertake study justified the applicant’s unlawful stay in Australia. It was open to the applicant to return to Vietnam and then seek another Student visa when he was able to resume his studies. It was not open to the applicant to remain in Australia without a visa in the hope that something might change in the future.

23. Neither does the Tribunal accept the applicant’s evidence that he hoped to work in Australia in order to support his study. The delegate’s decision indicates that the applicant was located in 2004 at his place of work. That is, he had been engaged in employment yet despite having an income, there is no suggestion that the applicant had made any effort to enrol in a course. Thus, the Tribunal does not accept that the applicant ever had the intention of engaging in studies. Rather, the Tribunal has formed the view that the applicant remained in Australia in order to work, despite knowing that he had no permission to do so.

24. The applicant contends that he was too proud to return to Vietnam and face humiliation, so he continued to live in Australia illegally. In his supplementary submission of 4 January 2019 the applicant states that his actions were governed by nothing else but his desire to migrate to Australia and to live here permanently and his motivation was to embrace the Australian values and be part of the Australian society. The applicant claims that his motivations should be considered as a mitigating factor. The Tribunal does not accept that argument. It is unclear why the applicant’s stated desire to live in Australia should be considered as a mitigating factor for the fact that he chose to do so in breach of Australian laws. While the Tribunal accepts that the applicant had a desire to be part of the Australian society, there is no obvious reason why he could not have fulfilled his aspirations by regularising his visa status and lawful stay rather than by breaching the Australian laws. There is an expectation that any non-citizen would comply with the migration legislation in order to obtain residence in Australia rather than flout such laws out of simple desire to live in Australia. As noted elsewhere, the applicant placed his self-interest and his desire to live and work in Australia above his obligations to abide by the Australian laws.

25. The Tribunal also notes that if the applicant did believe for whatever reason that he preferred to stay in Australia that does not mean he could have stayed as an unlawful non-citizen. The applicant has not taken any steps to approach the Department to make an application for a visa. The applicant’s evidence is that he was in a relationship from about 2004 and may have been able to make an application for a Partner visa. He could have also sought a protection visa if he believed his human rights would not be respected in Vietnam. The applicant stated in his evidence to the Tribunal that he did not know about these visas or could not afford to make inquiries but his evidence is that neither he nor his partner made any inquiries. As for the costs, the Tribunal notes that the applicant could have made contact with the Department, which would not have incurred any costs. Thus, the issue is not only the fact that the applicant stayed in Australia as an unlawful non-citizen but the fact that he had made no effort to comply with the laws by regularising his status and appears to have been indifferent about his breaches of the law.

26. The applicant gave multiple reasons for his overstay. In his declaration of 9 June 2017 the applicant states that he overstayed because he was in love with his partner. In his declaration of 4 July 2018 he states that he felt humiliated to return to Vietnam and did not want to leave Australia. In his post-detention interview in 2004 the applicant referred to his desire to work and earn money. In his evidence to the Tribunal the applicant states that he preferred Australia’s protection of human rights and values. The applicant appears to have offered different reasons for his overstay in each of his dealings with the Department and the Tribunal. The applicant also states in his declaration of 4 July 2018 that he could not return to Vietnam because “it was a matter of life or death”. In oral evidence the applicant explained that he wrote that for emphasis and it was not really a matter of life or death. The Tribunal has formed the view that the applicant continues to be untruthful in his evidence, including in his submissions in support of the Citizenship application, and that he has offered whatever explanation he believed would be most beneficial to his case.

27. The applicant provided with his citizenship application his National Police Certificate. The applicant states in the supplementary submission of 4 January 2019 that he had not breached any criminal laws. While the Tribunal is mindful that the applicant appears to have been questioned by the police on a number of occasions, he has never been charged, or convicted, of any offences and there is no evidence of any criminal wrong-doing. The Tribunal does not draw any adverse conclusions from the fact that the applicant had been questioned by the police.

1. The applicant provided evidence of having engaged in voluntary activities at a Buddhist Temple and a character reference. Additional character evidence is before the Tribunal and the applicant referred to his Buddhist values. The Tribunal accepts that the applicant had engaged in activities at the Temple. The Tribunal accepts that those who provided references and oral evidence for the applicant believe him to be of good character. The Tribunal is mindful, however, that both Mr Trieu and Ms Pham who gave oral evidence to the Tribunal know the applicant from 2013, many years after the applicant became an unlawful non-citizen. The Tribunal is not satisfied that they are well aware of the entirety of the applicant’s circumstances in the period prior to their introduction. Some of the other written declarations do not refer to the applicant’s periods of unlawful stay in Australia. Most witnesses have indicated that the applicant has not committed crimes in Australia but the Tribunal is of the view that good character is not limited to considerations of criminal conduct or the existence of criminal convictions. Nevertheless, the Tribunal accepts that these witnesses believe the applicant to be of good character. The Tribunal has given considerable weight to the character references. The applicant also provided to the delegate his tax return and the Tribunal accepts that the applicant has been employed and paid tax after he became a permanent resident although the Tribunal acknowledges the respondent’s evidence that the evidence of tax payments is minimal.

2. The Tribunal acknowledges that there is no evidence that the applicant had been convicted of any offences and accepts that this is so. In his Statement of Facts, Issues and Contentions the applicant states that he would not commit crimes and always had a law-abiding attitude and has been law-abiding. The applicant appears to be of the view that being a law-abiding citizen implies not having breaches of the criminal laws. However, the Tribunal does not consider that the concept of good character is limited to criminal conduct. It can also encompass general conduct. The applicant has not complied with Australia’s immigration laws and his non-compliance was extensive and occurred over a lengthy period of time. It is not correct to state, then, that the applicant has had a law-abiding attitude. Neither does the absence of criminal convictions in itself sufficient to establish that the applicant is of good character.

3. The Tribunal acknowledges that considerable time has passed since the offending conduct. Significantly, there is no evidence of any non-compliance with Australian laws since 2012 and no evidence of otherwise inappropriate, anti-social or criminal conduct. The Tribunal accepts that the applicant has been working and that he supports his family. However, the Tribunal’s issue is not only with the applicant’s past non-compliance but also his present perception of his conduct. The Tribunal has considerable concerns about the applicant’s statements in his declarations of 9 June 2017 and 4 July 2018. In the earlier declaration the applicant states that he overstayed his visa due to factors beyond his control because he was in love. In the later declaration, the applicant states that he knew he was here illegally but it was ‘a matter of life and death’ – a claim the applicant has abandoned in oral evidence. The applicant appears to suggest that his personal preference to remain in Australia, both because of his relationship or his general preference for the Australian way of life was of greater significance than his obligation to abide by the Australian laws and justified his breach of the law. In the Tribunal’s view, the applicant’s evidence demonstrates that the applicant is not capable of distinguishing right from wrong and has very little appreciation of his wrong-doing despite the expression of remorse. It is of considerable concern to the Tribunal that at present, the applicant continues to genuinely believe that he was justified in remaining in Australia unlawfully and breaching immigration laws over a significant period of time simply because he preferred living in Australia.

4. The applicant claims that even though he has not abided by the immigration laws in the past, this behaviour cannot be repeated since he has been granted permanent residence. The Tribunal accepts that while the applicant remains the holder of a permanent visa, he cannot be an unlawful non-citizen. There is no issue of recidivism. However, the issue before the Tribunal is not whether the applicant will commit the same breach of the law that he has in the past. The issue is whether he is a person of good character and that encompasses an assessment of whether the applicant has demonstrated willingness to uphold and obey the law. In the Tribunal’s view, he has not.

5. The applicant argues, by reference to Fenn v Minister for Immigration [2000] AATA 931 that the denial of Australian citizenship is not a form of punishment. The applicant states that no conduct can be beyond redemption and that a person can be taken to be a person of good character despite a serious crime. The Tribunal accepts that this is so. The applicant refers to his desire to uphold the laws and Australian values and to make a contribution, stating that he should not be punished for his past conduct. The applicant states that his past misconduct is rectified by his present circumstances and his expression of remorse. The Tribunal accepts that past conduct in itself is not determinative, although in the Tribunal’s view, it is relevant. However, as noted above, the Tribunal’s concerns are not only with the applicant’s over-stay until 2012, but more significantly for the present purpose, with the applicant’s current perceptions about his past conduct. The Tribunal has formed the view that the applicant continues to be untruthful in relation to the explanations for his past misconduct that he provided in support of the Citizenship application. The applicant repeated states in his various submissions that his past misconduct was somehow justified because he genuinely wanted to stay in Australia. The applicant appears to believe that his desire to stay in Australia, for whatever reason, justified his breaches of the law. It is these expressions that the Tribunal considers to be reflective of the applicant’s lack of good character. The Tribunal is not satisfied the applicant can distinguish right from wrong or uphold the Australian laws because the applicant’s willingness to comply with the laws seems to be a matter of convenience for him.

6. The applicant refers to the reasoning in Zheng v Minister for Immigration (2011) AATA 304, stating that his respect for the Australian values should be used as a mitigating factor for his past misconduct. The applicant claims that there had been no denigration of the Australian values other than his unlawful status and the failure to pay tax while he was unlawful, which flowed from his immigration status. The applicant now submits that the reason he stayed in Australia was because he cherished the Australian values and had a strong and consistent desire to stay in Australia. As noted above, this explanation differs substantially to the earlier explanations the applicant put forward for his unlawful residence in Australia and the Tribunal is not satisfied that the applicant offered this most recent explanation because it was a true one, rather than because he believed it to be most beneficial to him. Further, the applicant appears to suggest that because he lived in Australia unlawfully for around 12 years out of respect for the Australian values, his breach of the law demonstrates his respect for the Australian values. The Tribunal does not accept that to be the case. In the Tribunal’s review, respect for the Australian values requires compliance with the laws and social norms rather than persistent breaches of the law and immigration requirements. A desire to live in Australia is not in itself sufficient to demonstrate respect for the Australian values. Such residence must not have been contrary to the Australian laws and societal expectations. The relevant laws which required the applicant to seek a visa, like any other person who was not an Australian citizen living in Australia.

7. The Tribunal accepts the applicant’s submission that the entirety of his circumstances must be considered and past misconduct does not necessarily mean that he cannot meet the character requirements. Neither is the Tribunal’s consideration limited to the consideration of the applicant’s future conduct or risk of re-offending. In the same way as the applicant’s past misconduct is not an indication of the applicant’s lack of good character, the low likelihood of repeated misconduct in the future does not establish his good character. As stated above, the relevant Departmental policy and Instructions refer to characteristics which have been demonstrated over a very long period of time. In the Tribunal’s view, the applicant has shown persistent disregard for the Australian laws during the period of his unlawful stay between 2000 and 2012 and, significantly, continues to show such disregard in his current dealings with Immigration and the Tribunal through less than truthful explanations he offers for his past conduct and lack of genuine acceptance of responsibility for his actions.

8. The Tribunal is not satisfied the applicant has demonstrated his willingness to respect and abide by the law in Australia. The Tribunal is not satisfied that a person of good character would behave the way the applicant has.  The Tribunal is not satisfied the applicant has demonstrated he can obey the law and despite his expression of remorse, the Tribunal is not satisfied the applicant has genuinely accepted responsibility for his conduct as he submits as recently as in June 2017 that the overstay was ‘out of his control’ because he was in love. The Tribunal does not consider there were extenuating circumstances relating to the offence. While the Tribunal accepts that the applicant’s preference was to stay in Australia, he had the opportunity – and indeed the responsibility – to seek a visa to enable him to do so lawfully and the Tribunal does not consider there were good reasons for his failure to do so. The Tribunal is not satisfied that the applicant is able to distinguish right from wrong or that, if he can make such a distinction, he would necessarily behave in the ‘right’ manner if it did not further his own preferences. The Tribunal is not satisfied the applicant has the willingness to behave in an ethical manner and conform to the rules and values of Australian society. The Tribunal is not positively persuaded that the applicant is of good character.

9. As the Tribunal is not satisfied the applicant is a person of good character, he does not meet section 21(2) of the Act and the general eligibility requirements for the conferral of citizenship.

   CONCLUSION

10. Having found that the applicant does not meet the eligibility requirements for conferral of Australian citizenship, the Tribunal affirms the decision under review.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated: 17 January 2019

Date(s) of hearing:	8 January 2019
Solicitors for the Applicant:	Mr C Levan and Mr Q Nguyen
Solicitors for the Respondent:	Ms S Gaussen