Hao Zhang and Minister for Immigration and Border Protection
[2015] AATA 176
•26 March 2015
[2015] AATA 176
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2827
Re
Hao Zhang
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal The Hon. Brian Tamberlin QC, Deputy President
Date 26 March 2015 Place Sydney The Tribunal affirms the decision of the Minister’s delegate to refuse the application for Australian Citizenship.
............................[sgd]............................................
The Hon. Brian Tamberlin QC, Deputy President
CATCHWORDS
CITIZENSHIP – permanent resident – whether of good character – alleged offences committed overseas – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21(2)(h)
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Davies and Minister for Immigration and Multicultural Affairs [2000] AATA 509
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
The Hon. Brian Tamberlin QC, Deputy President
26 March 2015
The applicant is a citizen of the People’s Republic of China who became a permanent resident of Australia on 19 May 2000. The applicant has applied for Australian citizenship under the Australian Citizenship Act 2007 (the Act). This application was refused by a delegate of the respondent on the ground that the Minister was not satisfied that the applicant is of “good character”: see s 21(2)(h) of the Act. On 10 June 2014 the applicant filed an Application for Review of the respondent’s decision with this Tribunal.
In determining the issue of whether a person is of good character to become a citizen, regard must be paid to the guidelines in the Australian Citizenship Instructions (the Instructions) which is headed “Chapter 10 – Character”. The Instructions are designed to provide guidance on the administration of the good character provisions under the Act and describe for administrative purposes some relevant aspects of the good character standard.
The Preamble to the Act states that the Parliament recognises that Australian citizenship represents full and formal membership of the community and is a common bond, involving reciprocal rights and obligations, uniting all Australians, and that the applicant for Australian citizenship must uphold and obey the laws of Australia.
The preamble to the Act serves to inform, to a significant extent, the task of identifying what Australian society considers to be right and proper behaviour for the purpose of assessing good character: see Re Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [119] – [120].
The Instructions and the case law make it clear that the reference to character is primarily a reference to the enduring moral qualities of the person: see for example Re Davies and Minister for Immigration and Multicultural Affairs [2000] AATA 509.
ISSUE
The issue for this Tribunal to determine is whether the applicant satisfies s 21(2)(h) of the Act, namely whether he is of good character at the time of the decision on review of the application.
RELEVANT LAW
The expression “good character” is not defined for the purposes of the Act. It is to be construed in its ordinary sense and having regard to Chapter 10 of the Instructions.
In Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen considered the requirement and said at [8]:
“The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. … The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn (the applicant) of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year's time when he can demonstrate a longer period of positive contribution to the Australian community.” (Emphasis added)
EVIDENCE
The applicant was granted permanent residence in Australia on 19 May 2000 and lodged an application for citizenship on 24 January 2003.
The applicant called no witness to give testimony on his behalf, nor did he make any statement or appear to give testimony in any way in relation to the question of his character.
The respondent filed a statement by Mr Johnson who is the First Secretary (Immigration) and Principal Migration Officer with the Department of Immigration and Border Protection at the Australian Embassy in Beijing. He is charged with responsibility for detection and management of fraud and a significant component of his role involves liaison with the People’s Republic of China Ministry of Public Security, particularly with respect to economic fugitives and this includes the sharing of information about economic fugitives from China who are in Australia. He says he has a sound working relationship with the People’s Republic of China Economic Crimes Investigation Department (ECID).
In November 2014, a Director of the ECID provided Mr Johnson with copies of a brief of evidence relating to the applicant.
Mr Johnson attaches a number of documents to his statement and the first of these is an Interpol Red Notice (IRN) relating to the applicant which bears date 17 July 2008. It states that the IRN was renewed on 2013 and is still valid.
There is no dispute that this notice relates to the applicant. The notice states that:
“Between January and October 2000, ZHANG set up bank accounts at the He Xi branch of the Communication Bank in Tianjin under the company name of Tianhong Good Transportation Co. Ltd using a false seal. He then illegally purchased foreign currency amounting to USD 7.738 million and fraudulently avoided paying the sea transportation fee.” (Emphasis added)
The maximum penalty possible for this is life imprisonment. Neither the time for prosecution or the expiry date of an arrest warrant have a limitation period. An arrest warrant was issued by the Tianjin Municipal Public Security Bureau on 26 February 2002 and the action to be taken, as notified by Interpol, is that it should be immediately informed that the ‘fugitive’ has been found.
The IRN also contains a statement that extradition will be requested from any country with which the requesting country is linked by a bilateral extradition treaty, or convention.
The arrest warrant issued on 26 February 2002 states that the applicant should be taken into custody in prison on the ground that he is suspected of purchasing foreign currency under false pretences.
A further annexure to Mr Johnson’s statement, dated 3 November 2000, is a statement from Tianjin Tianhong Freight Fowarding Ltd reporting a transaction for about USD 7 million transferred overseas and requests investigation as to the responsible parties and information as to who had “misappropriated our official seal” or had, without authorisation, “counterfeited our official seal … to illegally transfer funds overseas”.
There is also a notice from the State Administration of Foreign Exchange for Tianjin reporting on the current state of the investigation as at 21 November 2000.
Also in evidence is an email dated 27 August 2014 from Ms Chu Miao, Senior Integrity Assistant with the Department of Immigration and Border Protection, stating that she had been informed that the IRN was initally issued in 2008, renewed in 2013 and valid until 2018. The email also reports that the arrest warrant is still current and that she had received confirmation that the applicant is one of the targets of an investigation known as “Fox Hunt 2014” by Chinese Authorities.
Finally there is a comprehensive and lengthy document which is a fax from the ECID in Beijing dated 27 January 2015. The document refers to details of the applicant under the heading “Criminal Suspect’s General Information”. There is also a case brief which indicates that the applicant and a Mr Wang are said to have illegally purchased foreign currency on 96 occasions totalling USD 7.738 million and had the money transferred overseas causing serious damage to national foreign exchange reserves. This document refers to evidence from parties in China and also to documentary evidence, including reports explaining the origin of the case in China; a verification report of the foreign currency purchase and payment involving the 96 transactions over the period January 2000 to October 2000.
Mr Johnson gave oral evidence and was cross examined in some detail as to his statements and the documentation relied on. I do not consider that the cross examination significiantly diminished in any way the testimony and evidence given by him.
I am satisfied that the applicant has had a full and fair opportunity to respond to the matters relied on by the respondent. In particular, at the hearing Mr Levingston, the solicitor who represented the applicant before me, made detailed submissions in relation to matters put to the applicant prior to that date. In relation to the subsequent material there has been a full opportunity for the applicant to produce evidence, make submissions and test the evidence advanced by the respondent.
Notwithstanding the allegations and matters put against the applicant on behalf of the respondent, he has not elected to testify or be cross examined by the respondent after being informed of the material put in evidence against his “good character”.
APPLICANT’S SUBMISSIONS
The applicant emphasises that there has been no conviction against him either in China or Australia. The material relied on by the respondent consists, he contends, simply of allegations. The applicant through his solicitor, but without giving evidence, asserts that he has not committed a fraud as alleged and says that there is no credible evidence to that effect. Having regard to the evidence and the documents produced, together with other material before me, it is submitted for the applicant that the evidence does not justify the decision that the respondent is not satisfied that the applicant is of good character.
The applicant also submits that the allegations referred to in the material concern alleged activities which took place over 14 years ago and that whilst in Australia the applicant has no criminal record for any offence whatsoever.
Under the Instructions, the Minister must take into account whether any offence or alleged offence committed overseas is equivalent to an offence under Australian law. I am satisfied in the present case that there is sufficient equivalence insofar as the allegations refer to fraud, purchasing foreign currency, forgery, using a false seal and thereby contravening the foreign currency laws applicable in the year 2000 in China.
I consider that the elements of the alleged offences in China are equivalent to obtaining by deception, dishonesty or fraud a financial advantage, see for example s 134.2 of the Criminal Code Act 1995 and s 192E of the NSW Crimes Act 1900 which concern a person by any deception or dishonesty obtaining a financial advantage or causing a financial disadvantage. I do not accept the submission that there is no equivalent offence in Australia.
The applicant also states that the material presented by the respondent does not necessarily indicate dishonest conduct on the part of the applicant. It is pointed out that the material refers to what is a concerted action between two persons involving the applicant and Mr Wang. Since there is no signed statement of Mr Zhang there is no precise allegation as to exactly what was the extent and detailed nature of the applicant’s involvement in the currency deception. Again, I do not agree with this submission because the evidence clearly points to a joint or concerted course of conduct between the applicant and the respondent during the year 2000 involving 96 transactions over 10 months. It is not necessary for the officers determining good character in the present circumstances to know the precise details as to what was done by each party to the joint activity.
The applicant also points out that he was able to renew his Chinese passport in March 2008 for a further 10 years which he says gives rise to an inference that there is or was no aspect of his conduct or character of concern to the authorities in China. The difficulty with this submission is that it is clear that the warrant for his arrest has been renewed and is still current and the Chinese authorities consider he has committed fraud to such an extent that it warrants life imprisonment. The evidence supports the conclusion that there are significant aspects of his conduct or character of concern to the Chinese authorities evidenced by the affidavit and annexures referred to earlier.
The applicant also says there is no evidence that he committed any fraud before or after he entered into Australia and this suggests that he is of good character. Whilst there is no conviction, nevertheless the weight of the evidence is to the effect that his actions are of considerable concern to the Chinese authorities and that they raise a significant issue as to his good character which he has not sought to meet by evidence.
The applicant relies on the application of the Briginshaw standard and in reaching my conclusion I have taken those principles into account.
The applicant also relies on the delay in determining the applicant’s citizenship application which was made in 2003 and therefore says that it was grossly unreasonable. Notwithstanding that there appears to have been significant inadvertence on the part of the respondent in not processing promptly his citizenship application, this consideration does not significantly bear on the question of whether the Tribunal should be satisfied as at the date of the determination by the Tribunal that the applicant is of good character.
REASONING
I have dealt above with a number of the submissions made by the applicant.
Having regard to the Instructions it is clear that in a number of respects the applicant satisfies the matters and considerations required to be taken into account. The applicant relies on his record of no convictions whatsoever and the long duration he has been in Australia without apparently coming to the attention of the authorities.
However, the applicant has not produced any references of any weight to support his claim to be of good character. There is no evidence of engagement with or participation in the Australian community or other affairs, nor has he come forward to meet, explain or rebut any of the allegations raised against him over a lengthy period. That consideration does not of itself of course mean that he is not of good character. Nevertheless I consider that this failure is a significant matter. The important consideration is that the allegations and warrant are still current and the position is clearly that the Chinese authorities wish to investigate the allegations of fraud made against him. The alleged fraud involved a very substantial amount of money and extended over 10 months and 96 transactions. It was planned and not a casual or one-off deception or misleading incidence of misconduct. The evidence falls short of satisfying me that the applicant is of good character such as to qualify for the grant of Australian citizenship.
Having regard to the currency of the interest of the Chinese government and the documentation provided and the substantial lack of any evidence on the part of the applicant as to his character, the Tribunal is not satisfied at the relevant date that the applicant is of good character. Accordingly, the application for citizenship must be refused on the basis that he is not eligible to become an Australian citizen.
DECISION
The decision of the Minister’s delegate dated 15 May 2014 to refuse the application for Australian citizenship is affirmed.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlain QC, Deputy President .........................[sgd]...............................................
Associate
Dated 26 March 2015
Date of hearing 13 February 2015 Solicitors for the Applicant Christopher Levingston & Associates Counsel for the Respondent Ms B Tronson Solicitors for the Respondent Australian Government Solicitor
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