Eidson v Minister for Immigration and Border Protection
[2017] AATA 1354
•23 August 2017
Eidson and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1354 (23 August 2017)
Division:GENERAL DIVISION
File Number(s): 2016/2141
Re:Karina Eidson
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member T. Tavoularis
Date:23 August 2017
Place:Brisbane
The decision under review is affirmed.
....................[sgd]...........................................
Senior Member T. Tavoularis
CATCHWORDS
IMMIGRATION & CITIZENSHIP – citizenship – where Applicant committed long-term identity fraud – where Applicant found guilty of migration offences for false and misleading statements on visa and citizenship application – whether revocation of citizenship is in the public interest – consideration of the “public interest” – whether discretion to revoke citizenship should be exercised – decision under review affirmed
LEGISLATION
Australian Citizenship 1948 (Cth), s 13
Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth), sub-item 2(2) Schedule 3
Australian Citizenship Act 2007 (Cth), ss 19G, 34, 50
Crimes Act 1914 (Cth) s 19B
Migration Act 1958 (Cth), ss 35, 501
Weapons Act 1990 (Qld), s 60CASES
Director of Public Prosecutions v Smith [1991] 1 VR 63
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142
Re Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs(1993) 30 ALD 292
Re Osorio and Minister for Immigration and Citizenship (2007) 94 ALD 525
Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255
Re WBU and Minister for Immigration and Citizenship(2007) 45 AAR 525
REASONS FOR DECISION
Senior Member T. Tavoularis
23 August 2017
INTRODUCTION
Ms Karina Eidson (“the Applicant”) is applying to the Tribunal for review of a decision by the Minister for Immigration and Border Protection (“the Respondent”) to exercise his discretion under s 34 of the Australian Citizenship Act 2007 (Cth) (“the Act”) to revoke her citizenship on 6 April 2016.[1]
[1] Exhibit 6, T Documents, T 2, p 11.
The Applicant fraudulently entered Australia as a 16 year old (born in September 1969)[2] in June 1986. Although Karina Maya Steiner Eidson was her birth and legal name, she entered Australia under the assumed identity of Sharon Leigh Gregory, born in May 1967 (making her 18 years old).[3] It is apparent that the Applicant did this at the behest of her parents, Mr Patton Eidson and Ms Sonja Eidson, who themselves entered Australia under the assumed names of Michael McGoldrick and Anita McGoldrick, respectively. The Applicant and her father were both United States (“US”) citizens, whilst her mother is presumed to have been a Danish citizen. All three assumed identities were those of US citizens.[4]
[2] Ibid, T 5, p 47 and T 8, p 66.
[3] Ibid, T 4, p 34.
[4] Ibid, T 5, pp 46-47.
Mr Eidson had been arrested and bailed for serious drug offences in the US in August 1985.[5] It was not contested that he and his family (including the Applicant) were fleeing the jurisdiction to avoid the consequences of those charges.
[5] Ibid, T 6, p 51.
Upon entry into Australia, the Applicant was granted a subclass V10 visitor visa under the name Sharon Gregory. She applied for, and was granted renewed subclass V10 visas a further six times between her first arrival in Australia, and 1989.[6]
[6] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), Annexure “A”.
In 1989, the Applicant married an Australian citizen and changed her name to Sharon Leigh McDonald.[7] Shortly thereafter, she was granted permanent residency in the form of a subclass K101 spouse visa.[8] That year, she also gave birth to an Australian citizen child.
[7] Exhibit 6, T Documents, T 4, p 36.
[8] Exhibit 2, Respondent’s SFIC, Annexure “A”.
In 1992, the Applicant was granted a subclass 155 resident return visa, which gave her not only permanent residence, but the right to travel to and from Australia without losing her residency status.[9]
[9] Ibid.
In each of the nine abovementioned applications for Australian visas,[10] the Applicant made false declarations by applying for them under her assumed identity, conditioned by the addition of her married surname, such that the name on the latter applications was “Sharon McDonald”.
[10] Nine applications comprising seven applications for visitor visas, one for a permanent spouse visa, and one for a resident return visa.
In December 1998, the Applicant applied for Australian citizenship under the name Sharon Leigh McDonald, born in May 1967. In so doing, the Applicant made a number of false declarations, relating not only to her identity and the identity of her parents, but also to whether she had been previously convicted or found guilty of an offence.[11] As it transpired, she had been found guilty of minor drug possession charges and of possessing utensils or pipes in December 1997. She was fined and no conviction was recorded.[12]
[11] Exhibit 6, T Documents, T 4, pp 28-33.
[12] Ibid, T 4, p 37.
In spite of these false declarations, the Applicant was granted Australian citizenship in August 1999.[13]
[13] Ibid, T 13, p 119.
In early 2011, the Australian Federal Police (“AFP”) and Department of Immigration and Citizenship (as it then was) were provided with information about the fraudulent nature of the Eidsons’ entry into Australia.[14] The AFP, Department of Immigration and Citizenship and Department of Foreign Affairs and Trade (“DFAT”) executed search warrants on the Applicant’s and her parents’ premises in June 2011 as a part of the investigation into their fraudulent entries into Australia.[15]
[14] Ibid, T 5, pp 46-47.
[15] Ibid, T 5, p 47.
In their search of the Applicant’s house, a handgun was found. Although the Applicant was licensed to own it, it was found to be insecurely stored, and the Applicant was duly fined the sum of $400 for failing to securely store a weapon. No conviction was recorded.[16]
[16] Exhibit 9, Bundle of Subpoenaed QPS Documents.
In February 2012 in the Cairns Magistrates Court, the Applicant pleaded guilty to making false representations under s 50(1)(a) of the Act. The Court applied s 19B of the Crimes Act 1914 (Cth) and found the charged proved without recording a conviction, but also placed her on a good behaviour bond for two years.[17]
[17] Exhibit 6, T Documents, T 6, p 51.
In November 2015, the Respondent wrote to the Applicant, advising her of the possible revocation of her visa, and invited her to comment.[18] The Applicant duly accepted the invitation and provided material in favour of her maintaining her citizenship status.[19]
[18] Ibid, T 13, pp 144-146.
[19] Ibid, T 13, pp 149-257.
In spite of the Applicant’s submissions, the Minister personally exercised his discretion under s 34 of the Act to revoke the Applicant’s citizenship on 6 April 2016.[20]
[20] Ibid, T 2, p 11.
The Applicant now seeks review by the Tribunal of the decision to revoke her citizenship.[21]
[21] Ibid, T 1, pp 3-7.
THE LEGISLATIVE FRAMEWORK
Before assessing whether or not the Applicant’s citizenship should be revoked, it is necessary to explain the legislative and legal framework within which this decision must be made.
A decision to revoke a person’s citizenship occurs under s 34(2) of the Act, which relevantly provides:
2The Minister may, by writing, revoke a person's Australian citizenship if:
(a)the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b)any of the following apply:
(i) the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code , in relation to the person's application to become an Australian citizen;
(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);
(iii) the person obtained the Minister's approval to become an Australian citizen as a result of migration-related fraud within the meaning of subsection (6);
(iv) the person obtained the Minister's approval to become an Australian citizen as a result of third-party fraud within the meaning of subsection (8); and
(c)the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
There are thus four levels to the test:
·The person must be an Australian citizen under Subdivision B of Division 2 of Part 2 of the Act;
·At least one of the factors in s 34(2)(b) of the Act applies; and
·The decision-maker must be satisfied that it would be contrary to the public interest for the person to remain an Australian citizen; and
·In light of the first three levels of the test, the discretion to revoke the person’s Australian citizenship should be exercised.
Subdivision B of Division 2 of the Act refers to cases of citizenship by conferral (i.e. where the person has applied for citizenship and meets certain specified criteria).[22]
[22] See the Act, s 19G.
The most relevant of the factors contained in s 34(2)(b) of the Act for present purposes is that the person had been convicted of, inter alia, an offence under s 50 of the Act in relation to their application for Australian citizenship. Section 50 of the Act reads:
False statements or representations
1A person commits an offence if:
(a)the person makes, or causes or permits to be made, a representation or statement; and
(b)the person does so knowing that the representation or statement is false or misleading in a material particular; and
(c)the person does so for a purpose of or in relation to this Act.
Penalty: Imprisonment for 12 months.
2A person commits an offence if:
(a)the person conceals, or causes or permits to be concealed, a material circumstance; and
(b)the person does so for a purpose of or in relation to this Act.
Penalty: Imprisonment for 12 months.
The question of whether it would be contrary to the public interest for the person to remain an Australian citizen is rather more complex. It is not defined in the Act. Recourse must therefore be had to authority for an understanding of this concept prior to exercising the discretion in the context of the matter presently before me. The discretion involves a decision-maker weighing up the advantages to the Australian society of depriving the Applicant of her citizenship against the disadvantages to the Australian society, the Applicant, and other persons in doing so.[23]
[23] Re Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292, at 302.
The concept of “public interest” has been considered in a variety of contexts.
For example, in Director of Public Prosecutions v Smith [1991] 1 VR 63, at 75, the Court thought public interest could be comprehended by an understanding of the conduct complained of by the Respondent and an assessment of how (if at all) that conduct impacted upon the capacity of the government to adequately provide for the welfare of its citizens. The Court said “public interest” “…is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the well being of its members.”
Tamberlin J in McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 at [12] contemplated a multi-faceted approach to the concept and an assessment of the extent to which the offending conduct can be related to all or some of those relevant facets:
The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where the public interest resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that "the public interest" can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable.
The particular facet of the public interest in the present case, broadly speaking, involves preservation of a component of the government’s service delivery capacity, specifically, its immigration system. The principal assertion against the Applicant is that she knowingly withheld information well within her field of knowledge from a department of government statutorily entitled to be made aware of that information.
This conduct is clearly of a serious nature. As observed by SM McCabe (as he then was) in Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255:
I agree that dishonesty in dealings with the department is a very serious matter. The integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history. The department is not in a position to know what the applicants know, after all. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly. But I must look to any prejudice to the applicant and others arising from the cancellation of [her] citizenship.[24]
[24] At [23].
Although involving an applicant’s failure to provide information primarily going to that applicant’s character, the comments of Deputy President Thompson in Prasad[25] are nevertheless relevant to the facts now before the Tribunal:
However, where a person applying for citizenship deliberately sets out to deceive the respondent so as to impede his assessment of that person’s character, that person is subverting, or at least attempting to subvert, the legislation. When account is taken of that, together with the applicant’s lack of candour and honesty in the evidence which was given in these proceedings, I am satisfied that it would be contrary to the public interest for [her] to continue to be an Australian citizen.
CONSIDERATION
[25] Re Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292, [40].
(1) Was the Applicant an Australian Citizen under Subdivision B of Division 2 of Part 2 the Act?
The Applicant became a citizen when the Australian Citizenship 1948 (Cth) (“the 1948 Act”) was still in force. However, that does not preclude her from being an Australian citizen under Subdivision B of Division 2 of the Act.
It is not contested that under sub-item 2(2) of Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (Cth), citizenship by conferral, which previously was under Division 2 of Part III of the 1948 Act, now falls under Subdivision B of Division 2 of Part 2 of the Act.
As the applicant was granted Australian citizenship under s 13 of the 1948 Act, which was contained in Division 2 of Part III of that Act, she meets this requirement.
(2) Was the Applicant Convicted of an Offence under Section 50 of the Act in Relation to her Citizenship Application?
In the information document provided by the AFP,[26] it is noted that the Applicant was dealt with on three separate charges under s 50 on the basis that the offences were deemed to be proved without conviction pursuant to s 19B of the Crimes Act 1914 (Cth). The Applicant also entered into a recognisance in the sum of $2,000 to be of good behaviour for two years.[27]
[26] Exhibit 10, Copy of AFP Criminal Charges.
[27] Ibid.
My initial apprehension was that finalisation of these offences “without conviction” caused a failure in the application of s 34(2)(b)(i) because it may have been arguable that she was not “convicted” of the offence. However, this issue is resolved by virtue of s 34(9), which relevantly provides that:
A reference in this section to a conviction of an offence:
(a)in relation to a law of the Commonwealth--includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to the offence; …
Consequently, the Applicant comes within the ambit of s 34(2)(b)(i) of the Act.
(3) Is it Contrary to the Public Interest for the Applicant to Remain an Australian Citizen?
To my mind, (1) matters of dishonesty in relation to a person’s identity, and (2) the deliberate perpetuation and deployment of that conduct in dealings with government entities are, indeed, very serious. They are serious for three reasons.
(a)The conduct unnecessarily imperils and frustrates the integrity of the immigration system and, in turn, lowers levels of public confidence in that system. For reasons I will expand on below, this has become a serious consideration for governments everywhere in the context of the dynamic and dangerous state of the global geo-political climate;
(b)Identity theft and derivative fraudulent conduct costs the community – in terms of total direct and indirect costs to prevent it – something in the order of $2.6 billion per annum.[28] While I accept that perhaps the majority of duly detected identity fraud relates to unlawful attempts by people to induce payment of government benefits to a greater extent than they would otherwise be entitled, I nevertheless cannot discount the seriousness of this Applicant’s conduct. There is no question that her conduct in not disclosing her true identity necessarily gave rise to a deficit in the information paradigm upon which the Department relied. She squarely placed the burden of detecting, proving and actioning the consequences of that deficit on the Department. The cost of that administrative burden was borne by the public;
(c)As touched upon above, the global geo-political situation has radically altered since the turn of the new millennium. It is not pessimistic to imagine and be convinced of an inexorable worsening of this situation. Governments are now charged with a heightened responsibility to protect the citizens whose safety they have undertaken to protect. Like it or not, we live in an age where governments’ surveillance of their populations will intensify as a means of pre-empting and, ultimately, circumventing heinous and catastrophic attacks. Foremost in this endeavour is the capacity of government to properly identify those who reside within, or temporarily visit, its sovereign territory. Any fraudulent conduct that deliberately results in the frustration of that objective and thus in a consequential deficit in the government’s essential field of knowledge for this purpose, is undoubtedly very serious.
[28] See Exhibit 2, Respondent’s SFIC, [50]; see also Exhibit 8, Government Identity Crime Document, p 5.
It was contended – fairly, in my view – on behalf of the Applicant that not all persons who breach s 50 of the Act ought to have their citizenship revoked.[29] The further submission was that (1) “The question starts with, which persons who breach s 50 ought to have their citizenship revoked” which, in turn, (2) leads to “…[t]he corollary… that at least some persons who breach s 50 ought NOT have their citizenship revoked.”[30]
[29] Exhibit 14, Applicant’s Final Subs, [11].
[30] Ibid.
What is really being contended on behalf of the Applicant is that each case must be examined on its own facts. As observed by SM McCabe (as he then was) in Taradel:[31]
It would be a mistake to elevate concerns over migration fraud to the status of an inflexible rule of law stating that anyone ever convicted of a migration-related fraud must necessarily be stripped of his or her citizenship. If parliament had intended to do that, it would have said so in the legislation.
[31] Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255, [22].
While conceding identity fraud “…is a serious relevant issue”[32] in the community, counsel for the Applicant sought to temper that contention on the basis that the offending conduct must have resulted in some demonstrable damage or harm to a third party in order to cross the threshold of s 50. I respectfully disagree. The further contention was that, given the apparent absence of such damage or harm, this case is somehow unusual.[33] Again, I respectfully disagree.
[32] Exhibit 14, Applicant’s Final Subs, [11].
[33] Ibid, [13].
For the reasons enumerated earlier, the Applicant’s conduct has harmed the interests and capacity of government to properly operate the immigration system. Thus, indirectly, her conduct has harmed the Australian community that effectively funds the operation of that system and has every right to refuse to tolerate any conduct compromising an organ of its government.
Nor can it be entirely excluded that at an individual level, the Applicant’s assumption and knowingly-prolonged use of another person’s name (in the United States) did not adversely affect the interests of the person to whom that identity rightly belongs.
In my view, I do not think the correct approach to the categorisation of an Applicant’s conduct for the purposes of s 50 of the Act ought be predicated or conditionalised on the basis of whether or not it adversely affects the interest of any third party. It is the conduct itself – not how it came about or what it resulted in – that must be scrutinised.
Here, the Applicant contends her case is also unique because she is the victim of her father’s unlawful activity in the United States and his resulting behaviour in allocating someone else’s identity to her. She says that in doing so, her father has wreaked “havoc”[34] upon her. Further, that “…she could not reveal her true identity without that causing her father and mother to be deported and even put in prison.”[35] Further still, “Her failure to reveal her true identity at the citizenship stage was just a triumph of family loyalty over public duty, not the triumph of a criminal mind in order to obtain something she was never entitled to have.”[36]
[34] Ibid, [20].
[35] Ibid, [21].
[36] Ibid, [22].
I do not think these contentions really assist the Applicant. She has known of her fraudulent identity from her childhood and well into her adulthood. She could have sought independent and privately-retained advice about both her own position (including that of her child) as well as that of her parents. She never did so. Instead, she sought to propound the fraud and deception in her multiple dealings with the authorities over the years and remained silent until those authorities caught up with her. This application has only seen the light of day when the reality of her father’s situation was exposed and prosecuted. I do not see how it would not be contrary to the public interest for the Applicant to remain an Australian citizen.
As mentioned, the Applicant could have gone a fair way in resolving her dilemma by taking expert and independent advice about the relative outcomes for herself, her child and her parents. In the circumstances of this case, I consider that the Australian public would regard it as being in their interest for the Applicant to retain her citizenship if she had voluntarily made full and complete disclosure of her identity to the authorities legally entitled to be made aware of it.
Granted, such disclosure may possibly have imperilled her parents,[37] but would have elevated her to a higher status insofar as the s 50 threshold is concerned. The fraudulent conduct of her father, when arranging for the fraudulent identities at the point of urgently seeking to escape punishment for his drug offending in the United States, to my mind, tainted all that flowed from it. The Applicant’s conduct and active participation in this fraud is confirmatory evidence of this. She could have severed the fraudulent nexus between her father’s conduct and herself, but never chose to do so. In my mind, this is the level of frank conduct between citizen and government required for a finding that it is not contrary to the public interest for the Applicant to retain her citizenship. In my view, her conduct does not reach that level.
[37] Both of whom were alive up to the point the Applicant lodged her application for review with the Tribunal. I understand that the Applicant’s mother has since died.
I feel compelled to say something about the Applicant’s apparent lack of knowledge of her outcomes depending on the result of this application. A number of the character references provided to the Tribunal, some of which are found in the T Documents, and some of which were not entered into evidence, seem premised on the misunderstanding that revocation of her citizenship would result in (1) the loss of her livelihood, and (2) her forced removal or deportation from the jurisdiction. This hearing ran across two consecutive days. The Applicant told the hearing that it was only on the morning of the hearing’s first day that she became aware that were the Minister’s decision affirmed via this application, she would be able to stay here and continue to operate her bar and restaurant business, but that she would need to obtain a resident return visa if an when she ever wished to depart and return to Australia.
Much of this apparent unfamiliarity with such outcomes was – as occurred throughout her evidence – sought to be explained on the basis of her not being a “paper work person” or a “numbers person” or otherwise not being naturally inclined towards or savvy with something she could not answer. Consequently, I thought her evidence lacked both coherence and credibility.
The Applicant’s communications with those advising her is, of course, a matter between her and them. However, the Minister’s decision (the reviewable decision in this matter) was made on 6 April 2016. She was notified of that decision on 20 April 2016.[38] She filed this application on 26 April 2016.[39] It is both incredible and incongruous for her to express – on the morning of the first day of the hearing,[40] no less – a demonstrable lack of knowledge, indeed misconception, as to its outcomes.
[38] Exhibit 6, T Documents, T 2, p 9.
[39] Ibid, T 1, p 3.
[40] 17 August 2017.
An alternate perspective on both the Applicant’s reticence to disclose her true identity to the authorities and her apparent lack of savviness about the significant aspects of this Application commenced, as it was, in her own name, could have been provided by her father. He was originally listed as a witness but ultimately never called.
I have similar misgivings about the Applicant’s evidence concerning the firearm for which she was charged on 15 June 2011, for failing to ensure it was kept in a secure storage facility and at the place shown in the relevant firearms register.[41] There are difficulties with her evidence on this issue.
[41] See Exhibit 9, Bundle of Subpoenaed QPS Documents.
First, she sought to challenge the police’s factual summary of the circumstances of the offence. Under cross-examination, when questioned about this charge, she said the firearm was secured in a locked makeup or cosmetics container and that the ammunition for the firearm was securely stored in another location. This was directly contradicted by paragraph 3 of the Applicant’s Statutory Declaration dated 7 November 2016.[42] The police version is that they found the firearm, together with the ammunition, in an unsecured and unlocked case.[43] As best as I understood both the oral and written evidence, there was no such contest about this apparent conflict in the evidence when the Applicant was sentenced on this charge.
[42] Exhibit 3, Statutory Declaration of Karina Eidson dated 7 November 2016.
[43] Exhibit 9, Bundle of Subpoenaed QPS Documents.
Second, much was sought to be made of the Applicant’s apparently high level of proficiency in competitive pistol shooting. She gave evidence of certain high-level results in shooting competitions at the Mareeba and Mackay pistol clubs. She spoke of being at a level that may, in the past, have seen her participate in the sport in a representative capacity at a State or national level. This proficiency in sporting shooting was indirectly offered as an excuse to the police for her failure to properly store the firearm. She told police it was apparently being temporarily (and thus insecurely) stored due to her then-frequent movements between her respective addresses in far-North Queensland and the Mackay areas. There is no apparent evidence in the material attesting to the Applicant’s proficiency in sporting shooting. There is not a single character reference from a sporting shooting colleague or co-competitor.[44] Nor is there any certificate or award or other recognition or any local or other press coverage supporting her contention as to her prowess as a sporting shooter.
[44] There are more than 20 character references in the material.
It is contended on behalf of the Applicant that imposition of any deterrent is largely the province of the criminal law: “It is at that criminal law stage that issues of punishment and deterrence are properly dealt with.”[45] The argument was that the Applicant had already been convicted and punished for her migration offending and that any further punishment by way of deprivation of her citizenship would constitute something in the order of “double punishment”.
[45] Applicant’s final subs ex 14 [25].
I respectfully disagree. To my mind, there is no reason mitigating against the Minister being empowered to deter the prevalence of identity fraud. The deterrent effect achieved by revocation of an applicant’s citizenship on the present facts is both sustainable and warranted. As correctly pointed out by the Respondent,[46] revocation of the Applicant’s citizenship would
(a)remove her citizenship status, which would not have been granted to her had [the Department] been aware of the identity fraud at that time;
(b)likely deter other applicants or proposed applicants for Australian citizenship from committing serious offences; and
(c)deter applicants who had committed offences from failing to inform [the Department] of those offences.
[46] See RSFIC [53] – citing similar factors considered by DP SD Hotop in Re Osorio and Minister for Immigration and Citizenship (2007) 94 ALD 525 at [42].
(4) Should the Discretion to Revoke the Applicant’s Citizenship be Applied?
As the first three levels of the test have been met, I will now turn my attention to the question of whether the discretion to revoke the Applicant’s citizenship should be applied.
This is not a case of an isolated dealing with the Immigration Department. Rather, the Applicant has consistently misrepresented herself to them, over the course of some nine visa applications and then her application for Australian citizenship. At any point along that road, she could have set the record straight on about her identity. She could have sought independent legal advice which may well have clarified her thinking. She never did so.
Despite the misconceptions she expressed at the hearing, the Applicant will remain in Australia, were this Tribunal not to exercise its discretion to revoke her citizenship. Her daily personal and business lives will remain unchanged. Upon revocation of her citizenship, she was automatically granted a non-citizen visa, pursuant to s 35 of the Migration Act 1958 (Cth) (“the Migration Act”). As the holder of such a visa, the Applicant has a right to reside permanently in Australia. This right is tempered by one reality, and one remote possibility.
The one reality is that her permanent non-citizen visa does not permit re-entry into Australia. She would need to obtain a resident return visa if she wished to depart from and return to Australia.
The one remote possibility is that the Minister could purportedly cancel her permanent non-citizen visa. Such a cancellation could be predicated upon an assertion of her bad character potentially arising from her history of offending, including her migration offences.[47] Two things can be said about this:
(a)The totality of her offending (comprising the offence of failing to properly secure a firearm under s 60 of the Weapons Act 1990 (Qld), relatively minor drug offences, and more significant migration offences) does not cause her to fail the “character test” on the basis of having a “substantial criminal record”;[48]
(b)In any event, there is authority suggesting this albeit distant and speculative risk of cancellation of her permanent visa should not be afforded much weight in the consideration of any application of the type presently before me.[49]
[47] Exhibit 10, Copy of AFP Criminal Charges.
[48] See Migration Act 1958 (Cth), ss 501(6)(a) and (7).
[49] Re Osorio and Minister of Immigration and Citizenship (2007) 94 ALD 525, [45]. See also Re WBU and Minister for Immigration and Citizenship (2007) 45 AAR, [47].
It was contended on behalf of the Applicant that an alternate perspective around a perceived threat to her permanent non-citizen visa may in future arise by virtue of s 501(6)(c) of the Migration Act. The sub-section refers to a possible finding of a person not being of good character based on that person’s past and present criminal conduct or general conduct. The Applicant’s counsel spoke of the possibility of a future legislative “raising of the bar” on character issues and visas. It would be pointless to speculate about the outcome of any such deliberations by government. It would certainly be surprising if any decision were made to cancel the Applicant’s permanent non-citizen visa in circumstances where:
(a)She does not fail the character test involving a “substantial criminal record” pursuant to ss 501(6)(a) and (7) of the Migration Act;
(b)She has resided in this country for the vast majority of the 31 years since she initially arrived here in 1986, has an adult child born here with whom (and with whose father) she remains close. Indeed, her daughter is her business-partner in the bar and restaurant business in Mackay;[50] and
(c)Notwithstanding her identity fraud, she has shown a commitment to, and has exercised, her rights and duties as a citizen.
[50] See e.g. Exhibit 11, ASIC Current and Historical Company Search.
A refusal of this application by this Tribunal is not determinative of, nor does it serve as a bar to, any application for citizenship in the future. The Applicant is clearly entitled to re-apply for citizenship. Assuming she is permitted to remain in Australia on her permanent non-citizen visa, it is difficult to identify any real detriment to either her personal or business life.
The balancing of all the relevant matters boils down to weighing:
(a)On the one hand, the interest in deterring others from committing migration offences and maintaining the integrity of the immigration system; with
(b)On the other hand, the interests of the Applicant and her supporters.
In light of the above facts, I consider that the lengthy and serious nature of the Applicant’s migration fraud, as well as the potentially grave implications of identity fraud to the Australian community mean there is a great interest in deterring others from committing similar offences, and in maintaining the integrity of the immigration system more generally. Conversely, while there will be some impact on the Applicant, I do not consider its detrimental impact to be of any particularly great magnitude. Yes, she would lose her citizenship and her right to return to Australia should she leave. However, that is all she would lose. As far as is reasonable for me to determine, the Applicant will be allowed to maintain her residency, and continue running her business and participating in the Australian community. This balancing exercise therefore leads me to the conclusion that the discretion to revoke the Applicant’s citizenship should be applied.
CONCLUSION
Perhaps the saddest part of this case for the Applicant is that, had she not lied about her name, she would have been eligible for Australian citizenship on precisely the grounds upon which it was originally granted to her.
However, that is of no benefit to her with regards to the present application.
DECISION
The decision under review is affirmed.
I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis
.........................[sgd]..........................................
Associate
Dated: 23 August 2017
Dates of hearing: 17-18 August 2017 Counsel for the Applicant: Mr L. Boccabella Advocate for the Applicant: Ms A. Yonzhi Wu Solicitors for the Applicant: Hunt Migration Counsel for the Respondent: Ms A. Wheatley Advocate for the Respondent: Mr J. Bird Solicitors for the Respondent: Clayton Utz
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