DCXT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 1503
•26 May 2020
DCXT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1503 (26 May 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1496
Re:DCXT
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:26 May 2020
Place:Sydney
The decision under review is affirmed.
.................[sgd].........................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
CITIZENSHIP – Refusal of Australian citizenship by conferral – applicant is an Egyptian citizen – whether applicant is of good character – applicant was in Australia unlawfully for a total of 9 years – applicant did not respect and abide by four decisions refusing his claims for a visa – the applicant did not respect and abide by Australian law on those occasions – applicant is not of good character at the time of decision – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – ss 21(1), 21(2), 21(2)(h), 24(1)
Migration Act 1958 (Cth) – ss 48B
CASES
Britos v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1282
Chen and Minister for Immigration and Citizenship [2007] AATA 1815
Choi v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 879
Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; 139 ALR 84
Mabagos and Minister for Home Affairs (Citizenship) [2019] AATA 216SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
26 May 2020
THE ISSUE TO BE DECIDED
DCXT applied for Australian citizenship on 17 March 2017. The delegate of the Minister refused the application on 1 March 2019 because the delegate was not satisfied that he, DCXT, is of good character at the time of the (Minister’s) decision on the application. That is a requirement for eligibility to become an Australian citizen.[1] I have to decide whether I am satisfied that DCXT is of good character at the time of my decision on the application.
[1] Section 21(2) of the Australian Citizenship Act 2007 (the Act).
BACKGROUND FACTS
DCXT was born in Egypt in 1965. His religion is Coptic Orthodox.
Following is a table which summarises his immigration history in Australia.[2] It is not contentious.
[2] Copied from the Respondent’s Statement of Facts, Issues and Contentions dated 4 March 2020.
Date
Event
Location and notes
13 August 1997
The Applicant arrived in Australia on a Tourist visa
T2, p 13 and Annexure A
14 June 1998 –
9 July 1998
The Applicant was in Australia unlawfully
T2, p 13 and Annexure A – 26 days
28 October 2000 –
5 August 2003
The Applicant was in Australia unlawfully
T2, p 13 and Annexure A
2 years 9 months 9 days4 June 2005 –
15 June 2005
The Applicant was in Australia unlawfully
T2, p 14 and Annexure A – 12 days
5 October 2005 –
16 February 2012
The Applicant was in Australia unlawfully
T2, p 14 and Annexure A
6 years 4 months 15 days
17 February 2012 –
8 February 2013
The Applicant had multiple Bridging E visas
Annexure A
22 November 2012
The Applicant was granted a permanent (Subclass 151) visa
T2, p 15
THE REGULATORY REGIME
A person may make an application to the Minister to become an Australian citizen.[3] If a person applies, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.[4] The Minister (and therefore this Tribunal) must not approve an application for citizenship unless the person satisfies various eligibility criteria including subsection 21(2)(h) of the Australian Citizenship Act 2007 (Cth) ( the Act).
[3] Section 21(1) of the Act.
[4] Section 24(1) of the Act.
The term “good character” is not defined in the Act. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; 139 ALR 84 (Irving), Lee J noted at [94] that (citations omitted):
... 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.
In Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, the Tribunal stated at [8] that:
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.
Chapter 11 of the Citizenship Policy (the Policy) provides guidance to decision makers in relation to “good character”. The Tribunal will generally consider and apply lawful policy unless there are cogent reasons for not doing so.[5] The Policy refers to Irving, referred to above, and reinforces that the expression 'good character' should be taken to be used in its ordinary sense and that the phrase ‘enduring moral qualities' encompasses characteristics which have been demonstrated over a very long period of time, being able to distinguish right from wrong, behaving in an ethical manner, and conforming to values of the Australian society.
[5] Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634.
Page 145 of the Citizenship Policy provides that:
'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 other commitments made through the pledge should they be approved for citizenship...
The Policy further sets out 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. The Respondent emphasized two of those characteristics:
respect and abide by the law in Australia and other countries
…
not have evaded immigration control…
In assessing the Applicant's character for the purposes of Australian citizenship, the Tribunal need not form an adverse view of the Applicant's character, but rather must be positively persuaded that the Applicant is of good character.[6]
[6] Chen and Minister for Immigration and Citizenship [2007] AATA 1815.
THE PARTIES’ CONTENTIONS
The Respondent emphasised DCXT’s “extensive history of immigration misconduct in Australia” which “comprised multiple extensive periods of time” when he was unlawful which is a serious matter: Britos v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1282 at [26]; Mabagos and Minister for Home Affairs (Citizenship) [2019] AATA 216 (Mabagos).
Two key elements were noted in Mabagos in relation to character and the seriousness of remaining unlawful in Australia: first, that the Applicant was aware they were unlawfully in the country and second, that it was for a considerable period of time, at [62]. DCXT conceded that he was unlawful for a very prolonged period.
DCXT claimed that he did not return to Egypt because he had a well-founded and reasonable fear of persecution and of being killed should he return and was remorseful that he had been unlawfully in Australia. He reported his history of discriminatory treatment and his activities and involvement in groups opposing persecution of Copts and the burning of Coptic churches which resulted in his persecution, which he detailed. He feared death at the hands of both the Egyptian authorities and the Muslim Brotherhood. Finally, he liquidated his business affairs and remained in his home, not even attending church. His sister assisted him to come to Australia in August 1997 and in July 1998 he made his first application for protection from the Australian government.
Between his arrival in Australia and applying for protection in 1998, DCXT was being treated by a psychologist and his family told him that the Muslim Brotherhood made occasional threats against him and warned him not to return because he would be killed in an instant because the Muslim Brotherhood were more powerful and supported by the Egyptian authorities.
The Respondent did not dispute that evidence.
DCXT said that he did not know when his visitor visa expired. I do not accept that. He applied for onshore protection within a month of that visa expiring. That application was refused by the Department and that decision was affirmed by the Refugee Review Tribunal in September 2000. In July 2003 he filed an application for judicial review of that decision in the Federal Magistrates Court which was dismissed in October 2004. He then applied for Ministerial intervention in June 2005 which was declined. He then applied pursuant to section 48B of the Migration Act 1958 (Cth) for the Minister to exercise the discretion to allow him to lodge another protection visa application which was refused in July 2005. In 2007 he sought Ministerial Intervention again which was declined on 16 August 2007. He was finally successful when he applied in 2012 and the Minister did exercise his discretion and granted DCXT a permanent (sub-class 151) visa. I accept DCXT’s evidence that he applied in 2012 because of the 2011 revolution in Egypt which resulted in increased power for the Muslim Brotherhood such that the situation of Copts in Egypt was precarious. His submission to the Minister included information about that situation.
The Applicant contended the following in relation to the period before 2012. DCXT’s voluntary approaches to the Department to regularise his migration status indicate that he is usually of good character, honest and trustworthy. He complied with all conditions of Bridging Visa E granted from 2012 until the Ministerial Intervention Request was approved. During his periods of unlawfulness, he lived in a community home owned by the Coptic church and did not have to pay rent. He received assistance from community members and friends in Sydney. Neither the church nor the community knew that he was unlawful. He also received financial assistance from his family in Egypt and occasionally from his sister in Australia. He did not work unlawfully or become involved in criminal conduct. DCXT did not defraud or deceive the Australian or other governments or organisations other than during his periods of unlawfulness. DCXT did not receive any government assistance or defraud the Australian Tax Office. He did not commit or become involved in war crimes, crimes against humanity and/or genocide. Finally, there is no verifiable information causing any character doubts.
In relation to the period after his migration status was regularized, the Applicant pointed to the following matters.
DCXT married in 2013. He and his spouse are receiving medical advice and treatment to conceive a child, which is making them anxious. The refusal of citizenship is causing much stress to DCXT and his spouse and has resulted in his developing depression and anxiety. He feels rejected and excluded from a country that he loves and respects. Dr Cosman, FRACGP, provided a medical certificate and a referral to another professional for further assessment in relation to DCXT’s “significant chronic depression anxiety disorder” with the date of onset of 10 November 2014. Both documents were dated 23 April 2019.
In 2012, when the Minister decided to grant DCXT a permanent visa, the Minister examined his circumstances and character up until that time and decided to intervene, despite the prolonged period of unlawfulness.
DCXT is currently working in his own business as a car detailer. He provided some income tax returns and PAYG instalment statements, a bank statement, and a Medibank Tax Invoice dated 17 August 2012. The oldest tax record was an individual return for the year ended 30 June 2014.
A Coptic priest and friends of DCXT have written to the Tribunal to support him and confirm that he is of good character, his remaining unlawfully in Australia was out of character, and he is remorseful.
CONSIDERATION
DCXT was unlawfully in Australia for a total period of almost nine years. Senior Member Poljak commented in Choi v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 879 at [15]:
Given that the applicant's period of unlawfulness was for approximately nine years, the seriousness of his conduct is magnified.
It is necessary to consider DCXT’s particular circumstances. He has been in Australia for almost 23 years. He was unlawful for a total period of nine years, almost 40% of the time he has been in Australia. He has been lawfully in Australia longer than he has been unlawful, however, it is about seven and half years since he was last in Australia unlawfully, which is a shorter period than he was unlawful. In part, the Respondent argued that citizenship should not be granted before the period since DCXT was last unlawful is longer than the period he was lawful.
Short periods, such as days to a month such as in June 1998 and June 2005 in DCXT’s case are not very serious. For example, DCXT said that during the 26 days in June 1998, he was unaware that he was unlawful because he had asked a solicitor to submit a refugee application. I accept his evidence. Periods of years are very serious.
The Respondent submitted that DCXT had given insufficient reasons for being unlawful. In response to my asking why his reasons were not good enough, the Respondent’s legal representative said that DCXT should have approached the Department earlier and tried to engage with it. She conceded that having approached the Department on four occasions it was not unreasonable for DCXT to have concluded that he would not succeed. The Respondent did not contend that DCXT’s claimed fear about returning to Egypt was not genuine.
The Respondent did not challenge DCXT’s evidence about how he lived in Australia. The Applicant said that he did not work and did not tell anyone about his unlawful status before 2012, except a priest in Egypt. The Respondent did not critique the medical evidence provided by the Applicant.
I accept the Applicant’s contention that apart from DCXT’s migration history, there is no other verifiable information causing any character doubts. However, I must be positively persuaded that the Applicant is of good character.[7]
[7] Ibid [18].
I accept that DCXT voluntarily sought to regularize his immigration status and has expressed his remorse and that he feels rejected and depressed because his citizenship has been rejected. However, he did not respect and abide by the laws in Australia for nine years because he knew he was unlawful and applied unsuccessfully four times to regularize his migration status. Decision-makers applying Australian migration law or deciding whether to exercise ministerial discretion did not accept his claims on four occasions. He did not accept and abide by any of those four decisions. It was only after a change in circumstances in Egypt in 2011 that the Minister was persuaded to exercise ministerial discretion. DCXT was evading migration authorities during the period he was unlawful. It is only about seven and a half years since a decision-maker applying Australian migration law was satisfied that DCXT’s circumstances entitled him to remain in Australia.
In those circumstances, I am not satisfied that DCXT is of good character at the time of my decision on the application.
DECISION
For the above reasons, I affirm the reviewable decision dated 1 March 2019.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
..............[sgd]......................................................
Associate
Dated: 26 May 2020
Date(s) of hearing: 15 May 2020 Solicitors for the Applicant: Ms L Soliman- Gateway Law & Migration Australia Pty Ltd Solicitors for the Respondent:
Ms K Crawford - Clayton Utz
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