Fang and Minister for Immigration & Border Protection
[2018] AATA 3686
•3 October 2018
Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686 (3 October 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5047
Re:Jianri Fang
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:3 October 2018
Place:Sydney
The decision under review is affirmed.
.............................[sgd]...................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP — Applicant granted Australian citizenship — Applicant later found to have entered Australia with a forged passport — Applicant's Australian citizenship revoked by the Minister — 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 Act1948 (Cth)
Australian Citizenship Act 2007 (Cth) ss 50, 34, 36, 21
Crimes Act 1900 (NSW)
Migration Act 1958 (Cth) ss 234, 501, 35
Migration Amendment (Abolishing Debt Detention) Act 2009 (Cth)
Migration Regulations 1994 (Cth)
Photo Card Act 2005 (NSW)
Road Transport Act 2013 (NSW)
Road Transport (Driver Licensing) Regulation 2008 (NSW)
CASES
D v National Society for the Protection of Children [1977] UKHL 1
Director of Public Prosecutions v Smith [1991] 1 VR 63
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 206 ALR 488
Egan v Minister for Immigration and Border Protection [2017] AATA 2705
Eidson v Minister for Immigration and Border Protection [2017] AATA 1354
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27
Kleeman and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 875
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142
Mohammed v Minister for Immigration and Border Protection [2018] AATA 687
Nguyen v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082
Osorio v Minister for Immigration and Citizenship [2007] AATA 59
O’Sullivan v Farrer and Another [1989] 168 CLR 210
Re Gungor and Minister for Immigration and Ethnic Affairs [1980] 3 ALD 255
Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255
Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health and Another (1995) 56 FCR 50
Roach v Electoral Commissioner [2007] HCA 43
Sankey v Whitlam and Others [1978] HCA 43
Shi and Migration Agents Registration Authority [2008] HCA 31
TRHL and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 803
TRHL v Minister for Immigration and Border Protection [2016] FCA 376
WBU v Minister for Immigration and Citizenship [2007] AATA 1143
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Cicero. De Legibus, edited by C. Keyes. Loeb Classical Library, Cambridge, MA: Harvard University Press, 1928
Commonwealth, Parliamentary Debates, House of Representatives, 16 October 1996 (Hon Philip Ruddock MP)
Commonwealth, Parliamentary Debates, House of Representatives, 13 December 1907 (Hon Alfred Deakin MP)
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
Explanatory Memorandum to the Migration Legislation Amendment Bill (No.3) 1996
John Locke,’ An Essay Concerning the True Original, Extent and End of Civil Government’ in Two Treatises of Government (J.M. Dent & Sons, London, 1962)
Pillai, Sangeetha, ‘The Rights and Responsibilities of Australia Citizenship: A Legislative Analysis’ (2014) 37 Melbourne University Law Review 736
Rubenstein, Kim, Australian Citizenship Law (Thomson Reuters, 2017)
The Analects of Confucius (James Legge, University of Adelaide Library, 2005)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
3 October 2018
THIS CASE IN OUTLINE
The undisputed facts in this appeal are clear:
·Mr Fang first entered Australia on a visa that was obtained by fraud;
·Mr Fang subsequently applied for and was granted Australian citizenship on the basis of submitting documents which contained false and misleading statements in support of his application;
·by an entirely serendipitous process Mr Fang’s fraudulent activities came to light and he was subsequently charged with and convicted of migration-related offences;
·As a result, the Minister, acting personally, revoked Mr Fang’s citizenship on the basis that it was in the public interest to do so and he was not prepared to exercise his discretion to do otherwise.
Mr Fang now appeals to this Tribunal to set aside the decision of the Minister.
DECISION
For the reasons stated below the Tribunal is satisfied that there are entirely insufficient grounds for so doing and that, on the contrary, it is manifestly in the public interest that the Minister’s decision be affirmed.
Mr Fang’s identity
Mr Jianri Fang was born in China[1]. At various times he has identified himself as Jianri Fang, Jian Ri Fang, Jian Hua Zheng, Jianhua Zheng and on 6 July 2012 he applied to the NSW Registry of Births Deaths and Marriages to change his name lawfully to Samuel Fang. That change of name was registered on 28 July 2012.[2] Mr Fang stated that the reason for seeking this change of name was on the advice of his fortune teller in order to enhance his chances of good luck in the forthcoming year.[3]
[1] Section 37-Tribunal Documents at [70]. His Notarial Certificate of Birth from The Dongguan Notary Public Office, Guangdong Province, People’s Republic of China gives his birth name as Fang Jianri.
[2] Section 37-Supplementary Tribunal Documents at [75] and [92].
[3] Section 37-Supplementary Tribunal Documents at [80].
In his Application for a Prospective Marriage (temporary) visa (dated 17 October 2007) Mr Fang left unanswered the question as to whether he had been known by any other name than Jian Ri Fang[4] and in his Application for Citizenship (dated 22 December 2011) he actually declared that he had not been known by any other name.[5]
[4] Section 37- Supplementary Tribunal Documents at [258].
[5] Section 37- Supplementary Tribunal Documents at [109].
Mr Fang’s Family in China
Mr Fang’s two parents and his four sisters continue to reside in Dongguuan City in Guangzhou Province in the People’s Republic of China. His sisters were born between 1970 and 1977[6] and they are all married. His father suffers from oesophageal cancer which appears to have been diagnosed towards the latter part of 2016.[7] His father has also made a formal Will in which he bequeaths his share of two properties in that city to his son upon his death.[8]
[6] Section 37- Supplementary Tribunal Documents at [201-202].
[7] Exhibit A4 Applicant’s Documents at (Cancer Centre of Guangzhou Medical University).
[8] Exhibit A1 Applicant’s Statement (21 December 2017) and attachments at Tabs (3),(4) and (6).
Since his lawful arrival in Australia in December 2007, Mr Fang has made two trips outside this country. In evidence to the Tribunal he recounted that in 2011 he travelled for eleven days to Hong Kong and Macao but on that occasion did not return to his home city. In 2013 he did return to his home city with his wife and his then only (now eldest) child.[9] On this occasion he was absent from Australia for approximately one month.
[9] Section 37-Supplementary Tribunal Documents at [6-7].
Mr Fang’s family in Australia
Mr Fang was granted a Prospective Marriage (temporary visa) (subclass 300) on 26 November 2007 in order to marry Xie Ming Hui who was his sponsor.[10] They were married in 2008 and have four children. His wife and all the children are Australian citizens. His mother-in-law also resides in Australia.[11] His children are now aged 10, twins at 3 ½ years and eighteen months.
[10] Section 37- Supplementary Tribunal Documents at [373].
[11] Exhibit A1 Applicant’s Statement at para 12.
It should be noted that on various occasions Mr Fang has indicated that he has difficulty comprehending English,[12] he has used a migration agent to submit some of his applications and in interviews with the Department of Immigration and Border Protection has needed the assistance of an interpreter.[13] He was assisted by a Cantonese interpreter for the purposes of these Tribunal hearings.
[12] Section 37- Tribunal Documents at [60]. Section 37-Supplementary Tribunal Documents at [450].
[13] Section 37-Supplementary Tribunal Documents at [380]. The language in question is Cantonese.
Mr Fang’s first entry into Australia
Mr Fang first entered Australia on 9 April 2003. He arrived on a Tourist visa, (subclass 676), as a member of a tourist group, using the name Jian Hua Zheng.
Jian Hua Zheng[14] is Mr Fang’s brother-in-law. According to his own testimony to the Department, Mr Fang’s mother was anxious that her son and Mr Zheng should leave China and seek employment in Australia. They received advice that due to his age (then 22) Mr Fang was unlikely to be granted a visa so they agreed that only Mr Zheng would travel. However before Mr Zheng could travel he suffered major health problems which made this impossible.
[14] Section 37- Supplementary Tribunal Documents at [139].
The family were apparently unable to obtain a refund of monies paid to facilitate this travel and so Mr Fang took Mr Zheng’s place. He travelled to Australia under a false name and with a false passport – using Mr Zheng’s passport corrupted with the substitution of Mr Fang’s photograph which he supplied for this purpose.[15]
[15] Section 37- Supplementary Tribunal Documents at [399].
He thus arrived in Australia under a false name and with a forged passport.
He then overstayed his visa which expired on 23 April 2003 thus becoming an unlawful non-citizen. He was subsequently located in the community (see below) and taken into Immigration Detention where he was held between 28 May 2006 and 29 August 2006.[16]
[16] Section 37- Supplementary Tribunal Documents at [540-541].
While in detention Mr Fang lodged an application for a Protection Visa on 10 July 2006.[17] This was refused. An appeal to the Refugee Review Tribunal (RRT) against this refusal was made on 24 July 2006 but that Tribunal affirmed the decision on 31 October 2006. Mr Fang than applied to the Federal Court on 24 November 2006 for a review of this further refusal. This matter was dismissed by the Court due to Mr Fang’s failure to appear for the hearing or be represented on 28 February 2008.[18]
[17] In accordance with Tribunal practice and procedures details of protection visa applications are not made public beyond reporting of the final Tribunal decision.
[18] Section 37- Supplementary Tribunal Documents at [37].
The Tribunal notes that in his application for a Protection Visa Mr Fang made a number of statements which were untrue.[19] He agreed, in giving evidence, that the personal details which he had used were not his, but actually those of his brother-in-law. Furthermore, his claims that he had himself served in the Chinese army and was otherwise afraid of suffering harm if returned to China because of his recent conversion to Christianity were all untrue.
[19] Section 37- Supplementary Tribunal Documents at [59-73].
Mr Fang was released from Immigration Detention at Villawood on 29 August 2006 because he had been granted a Bridging Visa E as part of the RRT process. Upon release he signed for receipt of a Notice to the effect that he had accrued a debt to the Commonwealth of $11,536.80 for costs associated with his detention.
While still on the Bridging Visa Mr Fang and his wife departed from Australia on 23 August 2007.
As a result of both the over-staying and the unpaid debt, Mr Fang (in the persona of Mr Zheng) was subject to an exclusion period of three years on the first matter and five years on the second, although it appears that the debt itself has subsequently, somehow, been discharged.[20]
[20] Section 37- Supplementary tribunal Documents at [541]. The record of the debt discharge appears to be by hand-written notation to the document tendered to the Court. There also appear to be debts for the failed RRT application ($1,400) and the failed Federal Court proceedings ($3,500). See Respondent’s Statement of Facts, Issues and Contentions at paragraph 8 and Supplementary Tribunal Documents at [145-146].There is no indication if these debts have since been discharged.
The Tribunal understands that this debt was never paid as such, but that it ceased to have effect following the passage of the Migration Amendment (Abolishing Debt Detention) Act 2009 (Cth).
The Tribunal’s observation re Statement from Mr Fang
In support of his application, Mr Fang has provided the Tribunal with a number of statements or statutory declarations. It became abundantly clear during the course of Tribunal proceedings that none of these was actually written by Mr Fang himself. They were apparently written by solicitors, legal aid advisors, migration agents or other people. While Mr Fang says that they reflect the truth of his situation and that they are based on information which he had given to these various amanuenses, it is clear that in many instances Mr Fang did not actually understand exactly what they were saying or their full import. Apart from the use of words, names and phrases which are entirely alien to Mr Fang and his vocabulary it is also clear that some of them provide statements or explanations which were not always consonant with the other evidence given orally by Mr Fang. This places the Tribunal in a difficult position of knowing what weight and credence to place on these documents. However, to the extent that in his oral testimony Mr Fang agreed that they conveyed, albeit in the words of others, the gravamen of what he wanted to put before the Tribunal, they are accepted on that basis and accorded appropriate authority.
An important question: why did Mr Fang come to Australia?
As already noted, Mr Fang mentions two reasons for his initial arrival in Australia in the persona of Mr Zheng. In the first instance he says that his mother wanted him (and his brother-in-law) to come to Australia for a better life and for economic purposes. He then says that when it appeared that he would not get a visa (on grounds of age) but that his brother-in-law would, the family made arrangements on that basis. Those arrangements fell through due to the brother-in-law’s illness. In the meantime a sum of RMB 80,000 (approximately $A10,000) had been borrowed to finance the trip. The family were told this money was not refundable when the brother-in-law was rendered incapable of travelling. Thus, unless someone travelled, and subsequently repaid the debt, then this money would be lost with no prospect of recovery. Hence Mr Fang stepped into the shoes and persona of Mr Zheng and travelled to Australia. He says that as the elder son this was his family responsibility.[21]
[21] Section 37- Supplementary Tribunal Documents at [375].
This narrative was provided both in written statements to the Tribunal and in Mr Fang’s oral testimony. It was also repeated in an interview given to officials of the Department of Immigration and Border Protection, where he asserted that he “had no choice” in the matter.[22] There is no hard evidence to corroborate this narrative but equally no reason to doubt it. In his oral testimony Mr Fang said that the debt was repaid in full before he arrived back in Australia under his own name in 2007.
[22] Section 37- Supplementary Tribunal Documents at [399].
How Mr Fang (in the persona of Mr Zheng) came to Immigration attention
While Mr Fang was in Australia he applied for and was granted a NSW Driver’s Licence (on 15 April 2003) which he obtained in the name of Jianhua Zheng. He used Zheng’s passport for this purpose and his license thus records his date of birth as 23 October 1973.[23]
[23] Section 37- Supplementary Tribunal Documents at [496-499].
This of course was a serious breach of NSW law.
On 25 May 2006 an incident occurred which the Police record describes thus:
“At T/d police from the Redfern Target Action Group were conducting a patrol of the location and the poi has stuck his phone number (sic) out of motor vehicle, …., NSW. The POI has proceeded to give the police the bird. Police activate the lights sirens of the unmarked police (sic), signal for the driver of vehicle …. To stop. The poi has supplied the police with the a (sic) NSW drivers licence. As a result police conducted a immigration enquire (sic) which revealed that the poi was illegal immigrant since 2003. The poi was arrested and handcuffed. As police were informed that he had been known to escape from police. Police contacted DIMA, who attend Redfern Police Station. The poi was released into the custody of DIMA ……….. ……… The poi was transported to Villawood Detention Centre.”[24]
[24] Section 37- Supplementary Tribunal Documents at [456]. (poi = person of interest).
As already noted, Mr Fang departed Australia on 23 August 2007.
Mr Fang’s second entry into Australia
Following his being granted a Prospective Marriage visa (see above) Mr Fang re-entered Australia on 13 December 2007[25], in this instance, in the persona of Jianri Fang, his true identity. After his marriage he applied for and was granted a temporary Spouse (subclass 820) visa on 16 June 2008 and a permanent Spouse (subclass 801) visa on 3 May 2010.
[25] Section 37- Supplementary Tribunal Documents at [24].
Mr Fang’s grant of Citizenship
On 22 December 2011 Mr Fang applied for Australian citizenship by conferral. This was granted on 3 February 2012 and became effective as from 18 April 2012.[26]
[26] Section 37- Supplementary tribunal Documents at [90].
Mr Fang’s applications for Visas and Citizenship
In applying for (and subsequently receiving) both spousal visas and citizenship, Mr Fang was obliged to complete certain forms and to supply the Department with relevant information.
In relation to both matters Mr Fang supplied false or misleading information.
·In relation to the several visas Mr Fang explicitly denied, on the relevant form, that he had ever held a Bridging Visa E, that he had ever travelled to Australia or that he had ever been excluded from or asked to leave Australia.[27] In fact he had held three Bridging Visas E between 2003 and 2007.[28] Similarly, he denied ever having lived outside China or having any debts to any Australian agencies.[29] All these statements were false, although they were relevant to Mr Fang in his persona and Mr Zheng.
·In relation to his Citizenship application he denied that he had ever used or been known by any other name[30]. This again was false.
[27] Section 37- Supplementary Tribunal Documents at [256-270].
[28] Section 37- Supplementary Tribunal Document at [14].
[29] Section 37- Supplementary Tribunal Documents at [197-217].
[30] Section 37- Supplementary Tribunal Documents at [109].
Discovering Mr Fang’s double identity
In June 2013 Mr Fang applied for a renewal of his vehicle registration. As part of the routine processes of NSW Roads and Maritime Services their extensive database was interrogated to see if there were any impediments to the issuing of a renewal. This process revealed, by Facial Recognition Technology (matching of photographs in the database), that Mr Fang and Mr Zheng were one and the same person.[31]
[31] Section 37- Supplementary Tribunal Documents at [460] and [519]
This led NSW authorities to investigate Mr Fang/Zheng for breaches of several NSW laws, namely:
·Road Transport Act 2013 (NSW): obtaining a licence by false statement
·Road transport (Driver Licensing) Regulation 2008 (NSW): change of name
·Photo Card Act 2005 (NSW): obtain phot card by false statement
·Crimes Act 1900 (NSW).[32]
[32] Section 37- Supplementary Tribunal Documents at [467].
There is no evidence before the Tribunal that any proceedings were, or have been initiated in NSW in relation to this matter.
Mr Fang’s Convictions
The Department initiated a prosecution of Mr Fang for breaches of both the Migration Act 1958 and the Australian Citizenship Act 2007.
Section 234 of the Migration Act provides as follows:
False documents and false or misleading information etc. relating to non-citizens
(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
(2) A person shall not transfer or part with possession of a document:
(a) with intent that the document be used to help a person, being a person not entitled to use it, to gain entry, or to remain in, Australia or to be immigration cleared; or
(b) where the person has reason to suspect that the document may be so used.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
Section 50 of the Australian Citizenship Act 2007 provides:
False statements or representations
(1) A 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.
(2) A 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 charges against Mr Fang were that he breached section 234(1)(b) of the Migration Act in providing false or misleading information and documentation to the Australian authorities in relation to his visa applications and that he breached section 50(1) of the Citizenship Act in making knowingly false statements in relation to his citizenship application.
These are serious charges as can be ascertained by consideration that the penalties involve imprisonment for up to ten years under migration legislation (on indictment) and up to one year under both Acts (in summary jurisdiction), together with substantial fines.
In the Downing Centre Local Court on 3 November 2015 before Magistrate Crompton, Mr Fang pleaded guilty to both charges. The Tribunal observes that there would have been no realistic option for Mr Fang to do otherwise.
In sentencing, the Magistrate took into account Mr Fang’s age (35 years); the nature of and impact upon his family; his lack of other criminal offences and his stable employment history. He also accepted that Mr Fang was at low risk of further offending.[33]
[33] See Department of Corrective Services Pre-Sentence Report (dated 29 October 2015) at Section 37- Tribunal Documents [52-53].
The Tribunal, in its consideration of this matter accepts, as did the Magistrate, that Mr Fang has no criminal record (apart from minor traffic offences), that he has been in stable long-term employment in Australia, he has a stable and secure family life and that there is no realistic risk of his reoffending in such matters.
Nevertheless Magistrate Crompton characterised the offences before the Court as “serious” and taking the two offences together, imposed a sentence of a recognisance release order for twelve months in relation to each, that sentence to be served together. This resulted in Mr Fang’s immediate release back into the community under a twelve months good behaviour bond and in addition a fine of $1,000 was imposed.[34]
[34] Section 37- Tribunal Documents at [46-51].
The revocation of Australian citizenship
Revocation of Australian citizenship is a rare occurrence. The Tribunal notes this and recognises the gravity of the decision which it has to make.
It also notes that there is relatively little judicial or Tribunal authority on this matter, with only a limited number of cases being determined in recent years.
According to the authoritative text by Kim Rubenstein: Australian Citizenship Law, between 1948 (when the original Migration Act was passed) and the end of May 2016 there had been only 20 revocations of citizenship. Of these, only seven appear to have been revoked on the basis of the individual having supplied false information as part of their citizenship application.[35]
[35] Kim Rubenstein: Australian Citizenship Law (Lawbook Co., 2nd edition, 2017) pages 255-56.
Since 2016 there appear to have been only five such cases. In four of those the basis for cancellation of the citizenship related to the “substantial criminal record” of the individual concerned. Three of those cases led to the Minister’s decision being affirmed[36] and one to it being set aside[37], although this decision is currently under appeal by the Commonwealth.
[36] TRHL and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 803; TRHL v Minister for Immigration and Border Protection [2016] FCA 376; Kleeman and Minister for Immigration and Border Protection [2017] AATA 875.
[37] Egan v Minister for Immigration and Border Protection [2017] AATA 2705 per Deputy President Justice Stevenson.
Only one other recent case has deal with the issue of identity fraud or the provision of false or misleading documentation,[38] although this had been addressed in some of the earlier cases.[39]
[38] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354.
[39] Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs [1993] 30 ALD 292; Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA; Osorio v Minister for Immigration and Citizenship [2007] AATA 59; WBU v Minister for Immigration and Citizenship [2007] AATA 1143.
It was actually not until 1996 that amendments were made to the previous Australian Citizenship Act1948 to provide to provide for the cancellation of citizenship where that citizenship had been granted as a result of fraud.
The Explanatory Memorandum to the Migration Legislation Amendment Bill (No.3) 1996 states:
“This amendment inserts an express ground for the deprivation of citizenship where the citizenship was obtained as a result of migration-related fraud.”[40]
[40] Migration Legislation Amendment Bill (no. 3) 1996, Explanatory Memorandum at para [94].
In his Second Reading speech, the Minister (Hon Philip Ruddock MP) explained the public policy rationale thus:
“But the government is equally determined that the value of Australian citizenship should not be undermined by allowing the grant of citizenship to stand where it has been granted as the result of fraud or deception. Yet the current provisions for deprivation of Australian citizenship in these circumstances are limited. There is currently no provision for depriving a person of Australian citizenship if it was obtained by fraud at the time of immigration. ……. Also, a person who committed fraud when applying for citizenship cannot be deprived of that citizenship if prosecution for the fraud is not commenced within ten years of its occurrence. The government considers that this is unacceptable. People should not be able to hide behind Australian citizenship which was obtained following fraud. To allow them to do so weakens the meaning and value of Australian citizenship. Therefore, …. the proposed amendments to the Australian Citizenship Act 1948 and the Migration Act 1958 will allow deprivation, without time limitation, of future grants of Australian citizenship obtained as a result of fraud, whether at the time of immigration or of application for citizenship.” [41]
[41] House of Representatives, Hansard, 16 October 1996 page 5589.
These provisions were carried over into the new Australian Citizenship Act 2007.
The power of revocation is vested exclusively in the Minister and must be exercised by them in their own personal capacity.[42]
[42] Section 34, Australian Citizenship Act 2007.
In depriving a person of citizenship, the onus of establishing that this course is the preferable one and in the public interest, lies upon the Minister. There must be clear proof and “mere suspicion … on which no finding of fact could properly be made must be put out of the decision maker’s mind.”[43]
[43] Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs [1993] 30 ALD 292 at [292].
Moreover, numerous decisions of this Tribunal have affirmed that any such decision must be based upon a clear weighing of the public interest in the revocation of citizenship against the hardship which would follow for the person and relevant others concerned.[44]
[44] Ibid at [302]; Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [21]; Osorio v Minister for Immigration and Citizenship [2007] AATA 59 at [41]; WBU v Minister for Immigration and Citizenship [2007] AATA 1143 at [44].
Mr Fang’s citizenship is revoked
On 14 September 2016 the Department issued Mr Fang with a notice to the effect that active consideration was being given to the revocation of his citizenship[45].
[45] Section 37- Tribunal Documents at [43].
He was invited to provide comments on this notice which he did on 18 October 2016.[46] In a submission on his behalf prepared by a Migration Agent it was pleaded that his behaviour resulted from “unwitting involvement in his abuse of Australian migration law.”[47] The Tribunal cannot but note that there was nothing “unwitting” about Mr Fang’s travel to Australia under a false name and with false documentation – his behaviour was not spur of the moment, but discussed (with his family), calculated and planned.
[46] Section 37- Tribunal Documents at [20].
[47] Ibid.
Section 34 of the Citizenship Act provides a power for the Minister to exercise a personal discretion in cancelling or revoking a grant of citizenship. The relevant sections provide:
Citizenship by conferral
(2) The 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.
…………..
Migration-related fraud
(6) For the purposes of this section, a person obtained the Minister's approval to become an Australian citizen as a result of migration-related fraud if and only if:
(a) at any time, the person was convicted of an offence against:
(i) section 234, 236 or 243, or former section 244 (as in force before its repeal by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws--General Law Reform) Act 2008 ), of the Migration Act 1958 ; or
(ii) section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code ; that the person committed at any time before the Minister gave the approval; and
(b) the act or omission that constituted the offence was connected with the person's entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia.
On 9 August 2017 the Minister for Immigration and Border Protection (Hon Peter Dutton MP) personally signed an instrument revoking Mr Fang’s citizenship. This is a matter, which, under section 34(2) of the Citizenship Act is discretionary in the hands of the Minister. The Minister determined that: “it would be contrary to the public interest for Mr Fang to remain an Australian citizen” and that it was appropriate for him not to exercise his discretionary power and determine, despite the public interest test, not to revoke his citizenship. The Minister’s reasoning is set out in a clear and detailed 30 paragraph statement.[48]
[48] Section 37- Tribunal Documents at [12-17].
It is important to emphasise the point that, unlike for example, the operation of section 501(3A) of the Migration Act which mandates that a visa must be cancelled in certain circumstances, the relevant section of the Australian Citizenship Act makes citizenship revocation a discretionary matter for the Minister. Not all breaches of migration or citizenship legislation lead to cancellation.[49] Thus the Minister is required to consider each case separately and on its own particular merits.
[49] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [22].
It is from the Minister’s personal revocation decision that Mr Fang appeals to this Tribunal.
The immediate consequences of revocation of citizenship
Section 35 of the Migration Act creates a class of visas which are called “ex-citizen” visas. Section 35(1) provides:
(1) There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as ex-citizen visas.
Section 35(3) goes on to provide:
(3) A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex-citizen visa when that citizenship ceases.
This provision applies to Mr Fang. On cancellation of his citizenship he automatically became the holder of an ex-citizen visa. This means that he may remain in Australia on a permanent basis but, should he leave Australia he has no automatic right of re-entry as do citizens.[50] To re-enter, a Return Resident Visa would need to be held.
[50] It should be noted that this right of re-entry is not an absolute right, even for citizens. See Kim Rubenstein: Australian Citizenship Law in Context (Law Book Co., 2nd edition, 2017) page 370-1; Sangeetha Pillai: “The Rights and Responsibilities of Australia Citizenship: A Legislative Analaysis”, Melbourne University Law Review, [2014] 37(736) page 761 fn 131.
5 Year Return Residents Visa may be granted according to criteria which are set out in Schedule 2 of the Migration Regulations 1994. The relevant section 155.212 provides:
Criteria to be satisfied at time of application
(1) The applicant meets the requirements of subclause (2), (3), (3A) or (4).
(2) The applicant meets the requirements of this subclause if the applicant was lawfully present in Australia for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa and, during that time, the applicant:
(a) was:
(i) the holder of a permanent visa or a permanent entry permit; or
(ii) an Australian citizen; and
(b) was not the holder of:
(i) a temporary visa (other than a Subclass 601 (Electronic Travel Authority) visa, a Subclass 773 Border visa, Subclass 956 Electronic Travel Authority (Business Entrant--Long Validity) visa, Subclass 976 Electronic Travel Authority (Visitor) visa or Subclass 977 Electronic Travel Authority (Business Entrant--Short Validity) visa held concurrently with the permanent visa or the permanent entry permit); or
(ii) a bridging visa.
It was agreed by both parties at the Tribunal hearing that Mr Fang is qualified under this section to apply for such a visa although there was some lack of clarity as to the exact date upon which he became eligible to make such an application. It was also agreed that he had, since his arrival in Australia in 2007 been “lawfully present in Australia”; that he met the 2 year qualifying period and that he was eligible at the present time to make such an application.
He retains the right to apply for another classes of visa and is not precluded, at some stage in the future, for making another application for a grant of citizenship by conferral.[51]
[51] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354 at [60]. Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8] per Deputy President Breen.
On the other hand, it is also theoretically open to the Minister to cancel this Ex-citizen visa on character grounds under section 501(2) of the Migration Act. It was agreed that this cancellation could not take place under the provisions of s. 501(6)(a) of the Act which relates to a person having a “substantial criminal record” but Mr Fang’s counsel expressed concern as to his potential vulnerability under section 501(6)(c) where a person may be taken to have failed the character test:
“having regard to ….
the person’s past and present criminal conduct”.
The Minister’s representative informed the Tribunal that, to the best of his expert knowledge, there had never been, to date, any instances of where an ex-citizen visa had been cancelled by the Minister.
There is no indication in material before the Tribunal that this is in prospect or contemplation by the Minister and the Tribunal has no reason to believe that it is. In any event, such a decision by the Minister would be subject to the appeal process which could bring it back into the purview of the Tribunal.
The Tribunal however, acknowledges the validity and strength of the point made by the Applicant’s counsel that the granting of a Return Resident Visa may be more of a theoretical than practical option and that, given all the circumstances of Mr Fang’s case, the extension of favourable consideration to him of any such applications may, at least in the immediate future, be less than likely.[52]
[52] Applicant’s Statement of Facts, Issues and Contentions at paragraph (13).
In submissions to the Tribunal, both Mr Fang’s wife and his mother-in-law (Peilan Zhao) express their concerns that the cancellation of his citizenship would result in him not being able to remain in Australia and support his family here[53]. As indicated, Mr Fang is, as of this date, the holder of an ex-citizen visa and the Minister’s representative has assured the Tribunal that his cancellation of citizenship and holding of an ex-citizen visa, will not lead to him being required to depart Australia. As such, the legitimate and proper concerns of his family in this respect may be laid to rest.
[53] Tribunal Documents at [29] and [41] respectively.
This point was made by the Tribunal in Kleeman where it stated in relation to another citizenship revocation:
“[59] The decision to revoke Mr Kleeman’s citizenship does not mean that he cannot remain in Australia. That is a matter for further consideration by the Minister or his delegate.
“[60] While the concerns of family members are a proper consideration in deciding how the discretion should be exercised, in this case they are based on the premise that Mr Kleeman will cease to reside in Australia should his citizenship be revoked. As we have said, this will not necessarily follow from any decision we make in this application.”[54]
[54] Kleeman and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 875.
Mr Kleeman had been convicted of very serious crimes and had served lengthy custodial sentences so the prospect of further action by the Minister was clearly within contemplation. As already stated this is not the case with Mr Fang.
The Tribunal notes, on the other hand, that Mrs Fang is an Australian citizen in her own right and the children are Australian citizens. Their status is not dependent upon Mr Fang’s as regard to citizenship and in any case the children’s citizenship status is protected by section 36(2) of the Citizenship Act.
The revocation of Mr Fang’s citizenship does not impact upon his ability to remain permanently in Australia, upon his continuing contact with and support of his Australian family or his ability to continue to work and conduct business in this country.
Mr Fang’s attack on Ministerial decision making
Before turning to the substance of Mr Fang’s plea for the Tribunal to overturn the Minister’s decision it should be noted that in the Applicant’s Statement of Facts, Issues and Contentions it is claimed that while the Minister may have correctly interpreted the provisions of the legislation and that while his understanding of the term “public interest” “ought not to be controversial in the present proceedings”, he had nevertheless applied incorrect reasoning to his decision by failing to understand that the provision of an ex-citizen visa (see below) is “not sufficient to avoid hardship to the applicant.”[55]
[55] Applicant’s Statement of Facts, Issues and Contentions at paragraphs (8), (11) and (12).
Mr Fang’s grounds of appeal
Mr Fang does not contest the findings made against him in the courts, nor the legislative or public policy basis upon which the Minister made his decision. Rather, he suggests that the Minister failed to give sufficient weight to the hardship now placed upon him, and his family, when balanced against the public interest criterion upon which the Minister has based his decision to exercise his discretion to revoke.
In essence, he argues that his inability to return to China to see his parents and family there, or to conduct business there, because he has no automatic right of re-entry to Australia, imposes upon him an intolerable hardship.
He argues that this is intolerable because:
(i)He is prevented from having direct personal contact with his family in China, especially with his father who is suffering from cancer;
(ii)His obligations within the cultural context of China, although this should be more accurately characterised as being within a Confucian context, as the eldest son of the family is to care for his ailing and ageing parents;
(iii)He is the potential inheritor of property in China (see above) and he would not be able to manage his inheritance were he not physically present in that country; and
(iv)His young children are, in effect, prevented from meeting and developing a proper familial relationship with their grandparents (and other family members) in China.[56]
[56] Applicant’s Statement of Facts, Issues and Contentions at paragraph (14).
Mr Fang asks this Tribunal to balance those hardships against the Minister’s assertion that the public interest outweighs all such considerations in relation to the exercise of his discretion.[57]
[57] Respondent’s Statement of Facts, Issues and Contentions at paragraph (42).
This was exactly the point before the Tribunal in Eidson where Senior Member Tavoularis said:
“The balancing of all 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.”[58]
[58] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354 at [61].
This concept of balancing these two factors is also recognised in cases such as Prasad[59] and Taradel[60] where it is emphasised that consideration can, and should be given, not only to the position of the applicant in question, but also to those associated with him/her.
[59] Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs [1993] 30 ALD 292 at [302].
[60] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [23].
This requires the Tribunal to commence with a consideration of exactly what the public interest may encompass in this particular set of circumstances.
The “Public Interest”
A “public interest” test is imposed by section 34(2)(c) of the Act (see above for its legislative origins) in that it requires that there be a demonstrable public interest in any individual’s citizenship being revoked or cancelled. Thereafter it requires the Minister to determine whether or not to exercise his/her personal discretion to give greater weight to the hardship caused to an individual (and those associated with him/her) than to the public interest. The process is very distinctly a two-step process.
As the Federal Court made clear in TRHL[61] although the term “public interest” is not defined in the legislation it should be understood in the following terms:
“As the appellant correctly noted the use of the expression ''public interest'' in a statutory provision imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [42]. The whole of the text must be considered when construing it: Alcan (NT) v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 per Hayne, Heydon, Crennan and Kiefel JJ at [47]”
[61] TRHL v Minister for Immigration and Border Protection [2016] FCA 376 at [29] per Gilmour J.
Both parties agree that it is in the public interest for Mr Fang’s citizenship to be revoked.[62] Mr Fang however, then goes on to argue that the Tribunal should come to the conclusion that the Minister erred in the way in which he exercised the discretion which he has under the Act allowing him to set aside that public interest conclusion and prefer his claims that this decision would impose unacceptable hardship on him and his family.[63]
[62] Respondent’s Statement of Facts, Issues and Contentions at paragraphs 24-28); Applicant’s Statement of Facts, Issues and Contentions at paragraph (8).
[63] Applicant’s Statement of Facts, Issues and Contentions at paragraphs (11-15).
Despite this agreement on the public interest conclusion, it is still, in the Tribunal’s opinion, necessary for it to make its own determination whether or not cancellation of Mr Fang’s citizenship is in the public interest.
The term “public interest” is a notoriously slippery one and it means different things in different contexts.
As Lord Hailsham said in 1977, “The categories of public interest are not closed”,[64] and as the High Court discussed at length in Sankey v Whitlam and Others[65] this concept evolves over time and changes with differing material facts and circumstances. It is term “of wide meaning and not readily delimited by precise boundaries.”[66]
[64] D v National Society for the Protection of Children [1977] UKHL 1; [1977] 2 WLR 201 at 218-9.
[65] Sankey v Whitlam and Others [1978] HCA 43.
[66] Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health and Another (1995) 56 FCR 50 per Lockhart J at 59.
Similarly, in a case dealing with different legislation, but which is nonetheless analogous, the High Court stated [67]:
“….. the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission, per Dixon J. at p 505.”
[67] O’Sullivan v Farrer and Another [1989] 168 CLR 210 at [12].
The Tribunal will however, confine its consideration of the issue to trying to understand what the term “pubic interest” means within the context of Australia’s immigration and citizenship legislation and policies.
It is not helped by the fact that, as is often the case with statutes, there is no attempt in either the Migration Act or the Australian Citizenship Act to define the term.
The Tribunal therefore starts from the premise that there can be no greater public interest than in securing the territorial integrity of the nation.
This concept goes as least as far back as Cicero’s dictum “Salus populi supreme lex esto” (the safety of the people is the supreme law).[68] It is repeated in John Locke’s 1690 seminal work, The Second Treatise on Government as a fundamental principle of responsible and democratic government[69] and was enunciated with great clarity by Alfred Deakin, as the Prime Minister in 1907 when he remarked that: “an obligation is cast upon us to protect the territory with which we have been intrusted.”[70]
[68] De Legibus Book III part III sub VIII (Loeb Classics p.467).
[69] John Locke: An Essay Concerning the True Original, Extent and End of Civil Government, Chapter XIII section 158 (John Dent, London, 1962).
[70] Alfred Deakin, ‘Defence Policy’, Commonwealth Parliamentary Debates (Hansard), Vol XLII, 13 December 1907, 7508.
Such territorial integrity is of course undermined if a nation is not able to determine who enters the country and passes through its borders.
This in turn requires that those, who are not citizens and who are seeking to do so, must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement – applicable indeed, equally to citizens and non-citizens alike.
This has been recognised in numerous decisions.
This Tribunal has set out clearly its view about the provision of false or misleading information to the Department in migration/citizenship matters:
Many of the provisions of the section [i.e. in the Migration Act] are reflected in the regulations, particularly in schedule 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first sub-section to the giving of false information, the use of bogus documents and the making of false or misleading statements. These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr. Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr. Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.[71]
[71] Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35].
More recently, that statement has been quoted again with the Tribunal going further to add:
I believe that this principle also adheres when an eligible non-citizen is applying for Australian citizenship. There is a reasonable expectation of the Australian people that a non-citizen will obey Australia’s laws and tell the truth to immigration officials.[72]
[72] Mohammed v Minister for Immigration and Border Protection [2018] AATA 687 at [39].
In Nguyen[73] I came to a conclusion, affirming a denial of citizenship, in the following terms:
(82)Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.[74]
(83)Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
(84)Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.
[73] Nguyen v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082.
[74] See Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
In Taradel, the Tribunal noted:
“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 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 also look to any prejudice to the applicant and others arising from the cancellation of his citizenship.”[75]
[75] [75] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [23].
An attack on the fundamental integrity of the immigration system is in effect, an attack on the interests of all Australians.
“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.”[76]
[76] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354 at [38].
The Tribunal does not think that further elaboration of this point needs to be made, but it does draw attention to further remarks in Eidson which are particularly apposite. This case, dealing with a citizenship revocation, has many parallels with Mr Fang’s. In that instance, the applicant entered Australia under a false identity (as to both name and date of birth); did so with the active encouragement and participation of her parents and while in Australia obtained licenses based on her false immigration identification. In affirming the revocation, the Senior Member wrote:
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. 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.[77]
[77] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354 at [34].
The Tribunal needs to take into account not just the law on this matter but also the clear statement of the Policy which underpins the administration of that law. One of the requirements for citizenship by conferral is that a person should be a person of good character.[78]
[78]Australian Citizenship Act 2007 section 21(2)(h).
Mr Fang has supplied a number of references as to the question of his being of good character. They come from friends and workmates a well as from members of his family. A number of them demonstrate at least some knowledge of Mr Fang’s breach of Australian immigration laws as well as knowledge of his family and his general good conduct[79]. The Tribunal acknowledges these references and accepts that they attest to Mr Fang’s current position in the community. The Tribunal, of course, must consider such matters as they appear before it at the time of its own decision making.[80]
[79] Section 37- Tribunal Documents at [37],[38],[39] and [40].
[80] Shi and Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
In this respect the Tribunal would conclude (although not obliged to at this time and not formally making such a determination) that Mr Fang would not necessarily be found not to be of good character for visa purposes as of this date.
The Australian Citizenship Policy [81] provides more formal guidance on what constitutes being of “good character” for citizenship application purposes. Among other things, it states:
Drawing from the definition outlined in Definition of good character, an applicant of good character would:
· be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
· providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
· involvement in bogus marriage
· concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship.”[82]
[81] Department of Immigration and Border Protection, Citizenship Policy (1 June 2016).
[82] Ibid at p.147.
Turning then to the more generic discussion of the meaning of the term “public interest” over and beyond its mere application to immigration and citizenship matters, the Tribunal accepts, as does Mr Fang’s representative[83], that the public interest embraces concepts outlined in the following cases.
[83] Applicant’s Statement of Facts Issues and Contentions at paragraph (8).
In Director of Public Prosecutions v Smith, 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.”[84]
[84] Director of Public Prosecutions v Smith [1991] 1 VR 63 at [75].
Tamberlin J in McKinnon v Secretary, Department of Treasury 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.”[85]
[85] McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 at [12].
To the satisfaction of the Tribunal this analysis provides a sound and secure basis for the Minister to come to a conclusion that revocation of Mr Fang’s citizenship is in the public interest. Although national interest and public interest are not the same thing, they are, in this instance, sufficiently congruent for the Tribunal to be able to conclude that the maintenance of the integrity of the immigration system and the securing of Australia’s national (sovereign) borders is in the public interest and that those who pose a threat to these are not deserving of the “privilege not bestowed lightly”[86] which is inherent in the grant of citizenship by conferral.
[86] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8] per Deputy President Breen.
The further consequences of citizenship revocation
At the heart of Mr Fang’s appeal is his assertion that his future inability to leave Australia to travel to China and then return imposes upon him a singular degree of hardship.
In particular, Mr Fang asserts that his inability to support his aging and unwell parent(s); the inability of his children to have a meaningful relationship with their grandparents and his economic interests as a potential land-holder in China will all be prejudiced.
This may well be so, but the degree to which this is the case must also be considered.
In Eidson[87] the Tribunal stated:
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.
[87] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354 at [62].
In Taradel the Tribunal recognised explicitly the need “to look at any prejudice to the applicant and others arising from the cancellation of his citizenship”[88] when the matter was under review. It concluded, in that instance that:
“Assuming the applicant is not removed from Australia, it is difficult to identify real detriment should his citizenship be revoked. His life would not change a great deal, and he would presumably be entitled to apply for citizenship again in due course. It is true he may not be able to travel overseas and he will experience stress as the department considers whether or not he should be removed on character grounds.”[89]
[88] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [23].
[89] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [28].
A similar balance of considerations was discussed in Prasad.[90]
[90] Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 at [39-40].
In many ways, Prasad addresses all the relevant issues in this matter directly. The Tribunal stated (at 39):
“Together the two Acts (i.e. the Migration Act and the Citizenship Act) are designed to ensure, as far as is possible, that only persons of good character with an adequate knowledge of the responsibilities and privileges of Australian citizenship are granted citizenship. It is of paramount importance, therefore, that information relevant to the character of a person applying for citizenship which is provided to the respondent it true and given in a manner which is not likely to impede the proper assessment of that person’s character.
Not every representation or statement made for a purpose in relation to the (Citizenship) Act is of such paramount importance as information relevant to character. A person may, therefore, have been convicted of an offence against s 50 and so meet the criterion set by subpara (i) of s 21(1)(a) without that fact being of great significance in relation to the criterion set by subpara (b). However, where a person applying for citizen ship deliberately sets out to deceived the respondent so as to impede the assessment of that person’s character, that person is subverting, or at least attempting to subvert, the legislation.”
The Tribunal concluded in Prasad that such evidence provided a significant part of the rationale for establishing a public interest in denying the grant of citizenship in issue.
The claim of threat to family life in Australia
As already noted, a principal concern of Mr Fang and his family is that they will somehow be separated by the revocation of his citizenship. Again, as already discussed, the Tribunal believes that this fear is not well founded. The holding of an ex-citizen visa grants Mr Fang the right to remain in Australia, unless he does something contrary to the law which might cause the status of this visa to be revisited. Any such decision would be administratively reviewable.
It should be noted that there is no suggestion in Mr Fang’s case that he faces the threat of removal. His legislatively granted ex-citizen visa grants his right to remain unless the Minister pursues an entirely new course of seeking to cancel this visa on character grounds. There is no suggestion that this is the case.
The claim of familial obligations
The Tribunal has given due consideration to the familial obligations which devolve upon an eldest son in Chinese society, based upon Confucian principles. It understands and accepts the submissions made in this regard by Mr Fang. However it also notes that the existence and acceptance of strong obligations and responsibilities to parents is not exclusive to any one nationality, belief system or society.
If particular reliance is placed upon Confucian principles (relevant despite Mr Fang’s apparent conversion to Christianity while in immigration detention) then it is equally worth noting that such principles include the following exhortations:
“The Master said: “I do not know how a man without truthfulness is to get on.””
“If names be not correct, language is not in accordance with the truth of things. If language be not in accordance with the truth of things, affairs cannot be carried on to success.”
“The Master said: “The object of the superior man is truth.”[91]
[91] The Analects of Confucius (James Legge, University of Adelaide Library, 2005) at Books 2, 13 and 15 respectively.
One of the important things about citizenship, especially when granted to a person not automatically entitled to it, is that the privilege of holding it brings with it not only rights but responsibilities; including the responsibility of truthfulness.
The Australian Citizenship Act contains a Preamble in the following terms:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
The Preamble is more than simply a declaratory statement. In Roach, Chief Justice Gleeson of the High Court discussed it in the following terms:
“The preamble to the Australian Citizenship Act 2007 (Cth) declares that Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations. The reference to the reciprocity of rights and obligations is important in the context of membership of the community. Serious offending may warrant temporary suspension of one of the rights of membership …... “[92]
[92] Roach v Electoral Commissioner [2007] HCA 43 at [12].
The obligation to uphold and obey the laws of Australia has been one which Mr Fang has willfully ignored. His behaviour has been a form of “civic irresponsibility” to use a term from the same passage of the Chief Justice’s judgement.
Unfortunately for Mr Fang the evidence before the Tribunal does not demonstrate the degree of filial concern and attachment to family which he now claims. During his period of lawful residence in Australia, when Mr Fang was able to travel freely, he only made two trips abroad. In the first of these he visited parts of China, namely Hong Kong and Macao but made no effort to return to his home city which, in Guangdong Province, is not that far from Hong Kong. He did make such a trip some two years later. However this means that during his time in Australia over many years he only made one trip home to see his parents. The Tribunal accepts that there may be some greater incentive now that his father has been diagnosed with cancer and that this diagnosis occurred at approximately the same time as Mr Fang’s citizenship cancellation, thus rendering his immediate return travel impossible. Nevertheless, on balance it cannot be said that in terms of his actual behaviour Mr Fang demonstrated, while he was free to do so, a particularly high level of commitment to returning to his home city or to visiting his parents.
In summary
There is no doubt that, at least for the immediate future, Mr Fang will suffer some degree of hardship as a result of the loss of his citizenship. The same may be true of his family, although his wife and children are in no way precluded from travelling to China themselves. As citizens they also have a right of re-entry. This would allow the children, when they are old enough to travel, to get to know their grandparents and to do so in the company of one of their parents.
The Tribunal cannot assign any serious weight to Mr Fang’s pleadings in relation to his economic interests in China. There is no evidence as to when he might come into his inheritance or the degree to which other members of his family still in China, (four sisters and their husbands) will be able to manage his affairs for him. As already noted, in time, Mr Fang may again, at some time in the future, be granted and able to exercise the privileges of Australian citizenship.
The Tribunal recognises that an inability to discharge the familial obligations of an elder son in Chinese society can be particularly distressing, but in this respect such a situation has come about as a result of of Mr. Fang’s own personal behaviour. He cannot plead that family pressures and obligations caused him to offend in the first instance and then use those same family pressures and obligations as the basis upon which he should be immunised from any consequences of that offending.
As noted above, citizenship cancellation on the basis of migration-related fraud was not provided for in the original Migration Act 1958 nor in the Australian Citizenship Act 1948, the Act which established the concept of an independent Australian citizenship. Its introduction in 1996 was stated expressly as being to guarantee that the value of Australian citizenship should not be devalued by condoning or leaving people free to engage in fraudulent behaviour without facing any consequences for doing so. This is not a form of punishment, which is the sole prerogative of the courts[93], but rather an administrative arrangement to protect the integrity of the migration system.
[93] Re Gungor and Minister for Immigration and Ethnic Affairs [1980] 3 ALD 255 at [322]; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 206 ALR 488 at [76].
Maintenance of that integrity and value of citizenship cannot be compromised.
CONCLUSION
In the balance of weighing the public interest in defending and maintaining the integrity of the immigration system and the security of Australia’s borders against the (not necessarily permanent) personal and economic inconveniences to Mr Fang and his family, there can be only one conclusion open to the Tribunal.
The clearly demonstrated public interest must prevail.
The decision under review is affirmed.
I certify that the preceding 137 (one hundred and thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..............................[sgd].........................................
Associate
Dated: 3 October 2018
Date(s) of hearing: 19 September 2018 Counsel for the Applicant: Mr O Jones Solicitors for the Applicant: Mr S Chan Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore
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