Hendra Setiawan and Minister for Immigration and Border Protection
[2014] AATA 682
•18 September 2014
[2014] AATA 682
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/0369
Re
Hendra Setiawan
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
Decision
Tribunal Mr P W Taylor, SC, Senior Member Date 18 September 2014 Place Sydney The decision under review is affirmed.
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Mr P W Taylor, SC, Senior Member
Catchwords
CITIZENSHIP – cancellation of approval of citizenship application – whether applicant is not of good character – absence of criminal convictions – deceptive conduct in dealing with government department responsible for immigration and citizenship – overstaying visa – use of a false name – use of a forged passport – decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth) s 25
Migration Act 1958 s 501
Cases
Re Al Hashimi and Minister for Immigration and Citizenship (2012) 130 ALD 640; [2012] AATA 534
Re Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97
Re Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
Re Aydin and Minister for Immigration and Citizenship [2007] AATA 1567
Re Bilouni and Minister for Immigration and Multicultural Affairs [2001] AATA 233
Re Kim and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 239
Re Kola and Minister for Immigration and Border Protection [2014] AATA 349
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Najafi and Minister for Immigration and Citizenship (2008) 103 ALD 451; [2008] AATA 647Re Shea and Minister for Immigration and Citizenship (2010) 115 ALD 467; [2010] AATA 378
REASONS FOR DECISION
Mr P W Taylor, SC, Senior Member
18 September 2014
Mr Setiawan, a 38 year old Indonesian citizen, challenges a January 2014 decision by the Minister’s delegate to cancel the approval of his citizenship application.
Section 25 of the Australian Citizenship Act 2007 permits such a cancellation in specified circumstances. Two circumstances are relevant to Mr Setiawan. The first is that, despite the initial approval of his citizenship application, he has not become an Australian citizen (because he has not made the required pledge). Secondly, the Minister is satisfied he was not a person of good character at the time of the cancellation decision.
The factual basis for the 15 January 2014 cancellation decision, and specifically the basis for satisfaction that Mr Setiawan was not of good character, involved a range of irregularities in his dealings with Australian immigration authorities. The history of those dealings goes back to June 1998. A bare outline of the periods he has spent in Australia, and the visa status he has held, is set out in the following table. (The table does not include two brief return visits to Indonesia in 2011 and 2012.)
Immigration irregularities
The six most presently relevant aspects of the information summarised in the table are that Mr Setiawan:
(a)first came to Australia on a tourist visa in 1998, when he was 22 years old, and remained after the visa expired;
(b)lodged a protection visa application in July 1999, and consequently obtained a bridging visa;
(c)remained in Australia after the April 2001 expiry of his bridging visa;
(d)re-entered Australia in September 2001 by using a passport, and tourist visa, that were in a false name;
(e)lodged a protection visa application in November 2001, and consequently obtained a bridging visa in the false name;
(f)remained in Australia, living under the false name, after the November 2002 expiry of his bridging visa.
The irregularities on which the January 2014 cancellation decision relied related to his overstay periods, the use of a false name, and the use of a forged passport. The most significant of Mr Setiawan’s irregularities were:
(a)overstaying (by about 3 months) the bridging visa that expired on 20 April 2001;
(b)obtaining a tourist visa, and entering Australia, in September 2001, under a false passport;
(c)making a protective visa application in that false name in November 2001, and subsequently pursuing that application in review proceedings in the Refugee Review Tribunal;
(d)overstaying (by about 44 months) a bridging visa (issued to him in the false name) that expired on 25 November 2002;
(e)in a June 2008 migration application, selectively disclosing his 1998 tourist visa and 2001 departure, failing to disclose his 2001 return, under a passport and visa issued in a false name, including various untrue statements that he had lived and worked in Indonesia continuously between 2001 and 2006, and declaring that the information in the application was complete and correct;
(f)in his February 2013 citizenship application, selectively disclosing his 1998 tourist visa, and failing to disclose his past use of the false name, including the visas that he had held in that name.
The Delegate’s February 2014 statement of reasons for the cancellation decision did not refer specifically to two statements contained in documents Mr Setiawan provided in February and April 2013 in support of his citizenship application. In the February 2013 document Mr Setiawan stated that he had lived with his parents in Indonesia for the whole period from July 2001 to July 2008, and that he had been employed as a sales manager in Indonesia between November 2001 and October 2006. He gave the address of his reputed employer. He declared, by signing the declaration at the end of the document, that the information he had supplied was “complete, correct and up-to-date in every detail”. The information he had supplied was, of course, quite untrue in so far as it claimed he had lived and worked in Indonesia for the whole time between 2001 and 2006.
Mr Setiawan does not contest any of the factual matters I have set out above, detailing both his visa overstays and the irregularities in his various applications. In particular, he does not deny using a false name to re-enter Australia in 2001. He concedes he used that name, and was generally known only by that name, for the whole time he was in Australia between 2001 and July 2006. He obtained a tax file number, and a driver’s licence in the false name. Everyone he interacted with in Australia in that period only knew him under his false name, except for the young lady he met in October 2005, and subsequently married in Bali in May 2008.
Notwithstanding the significant irregularities I have detailed in Mr Setiawan’s past dealings with the Australian migration authorities, he contends he is now of good character. He contends that his character is not to be assessed solely, or even primarily, by regard to his past conduct. He says that when regard is had to the totality of his circumstances, the matters relied on by the Minister do not warrant a lack of satisfaction about his current good character.
The “good character” argument
Mr Setiawan relies on a number of matters to demonstrate his good character. They include the following matters:
(a)he has no criminal convictions – either in Australia or Indonesia;
(b)his immigration misconduct between 2001 and 2006 (overstaying his expired visa, returning shortly afterwards under a false passport, pursuing a protection visa application in a false name, and overstaying his bridging visa when it expired) was motivated by desperation to avoid what he regarded as a risk, because of his Chinese ethnicity, of serious discrimination and persecution in Indonesia;
(c)his 2008 non-disclosure (and misrepresentations) were motivated by a concern that, if he made the required disclosures, he might not have been able to accompany his wife on her return to Australia after their marriage in Bali in May 2008;
(d)his 2008 non-disclosure was at least partly influenced by advice or pressure from the migration agent with whom he dealt;
(e)his 2013 non-disclosure (and misrepresentations) were motivated by shame and embarrassment about the information he had previously supplied.
General good character
Mr Setiawan’s apparent good behaviour, apart from the conceded irregularities in his dealings with the Australian migration authorities, is not in contest. There is nothing to suggest that he has any criminal convictions, in either Australian or Indonesia. Nothing that would adversely impact on an assessment of his character, has been pointed to in any material provided to the Tribunal – other than the immigration related irregularities I have detailed.
On the contrary, there is evidence, from two people who have known Mr Setiawan for various periods since his return to Australia in July 2008. Both of these people have employed him in their respective hotel and restaurant businesses. Both of them spoke very highly of Mr Setiawan’s honesty, trustworthiness and work ethic. Both of them endorsed Mr Setiawan as a person who was of good character and who would be a commendable Australian citizen. One of them had such a high opinion of Mr Setiawan that he would endorse him as a potential partner in his restaurant business.
Similar, but rather more abbreviated, complimentary views of Mr Setiawan’s good character were expressed by a supervisor who knew him from his period of employment as a process worker between June 2011 and February 2013. The pastor of Mr Setiawan’s church provided a statutory declaration stating that he had known Mr Setiawan for a period of three years. The pastor said that Mr Setiawan was “a loyal, honest and supportive individual” whom he regarded as having been able to “prove himself to be a person of good character”.
These four testimonials about Mr Setiawan’s character are impressive. But they are only part of the matters to be taken into account. Furthermore, (in the case of the supervisor and the pastor) they are either not demonstrably informed, or only apparently obliquely informed, by awareness of the nature and extent of Mr Setiawan’s past immigration irregularities. In the case of the two other employers, their views are based on an understanding that Mr Setiawan’s apparent determination to come to, and attempt to remain in, Australia in 2001 (and perhaps in 2008) was influenced by serious and justifiable apprehensions about his personal safety in Indonesia. Neither of these two people was prepared to resile from their commendation of Mr Setiawan’s good character merely because of the fact that he had used a false passport, obtained entry to Australia on that basis, and subsequently (but unsuccessfully) pursued a protection visa application in that name. They were influenced to adhere to their subjective assessment of Mr Setiawan, based on their personal dealings with him, and not to make any adverse assessment based on limited knowledge of the details of his immigration irregularities, and the details of the situation that had confronted him in Indonesia. They accepted that his claimed apprehensions had been genuine and were the primary motivation for his past misconduct.
Apart from the commendations of the people to whom I have just referred, Mr Setiawan pointed to some endeavours he has made as a volunteer to assist various community organisations. These were referred to in a letter he wrote to the Department in January 2014, just before the cancellation decision. In that letter he said he had applied “a month ago” to do work assisting a local conservation organisation in Newcastle. He had also volunteered to assist the Red Cross in a breakfast club program they were promoting in Newcastle. In February 2014, after the cancellation decision he worked as a volunteer helper in a cycling event organised by Bicycle Network. These efforts are commendable. But they are recent and bear the appearance of steps he took because of apprehensions about the cancellation decision. That appearance is not diminished by the insubstantial evidence of either the extent or quality of Mr Setiawan’s actual subsequent involvement. In those circumstances, these efforts carry little weight.
Mitigating FACTORS?
Apart from his asserted general good character – in the sense I have described above – the most significant aspect of Mr Setiawan’s contention about his current good character is that the apparent significance of his immigration related misconduct is mitigated by various factors. These factors are:
(a)exigency, having regard to the persecution and discrimination risks he perceived he faced in Jakarta;
(b)immaturity, taking into account his comparative youthfulness in 2001, and his past alcohol dependence;
(c)bad advice, particularly from the migration agent who had assisted him with his 2008 partner visa application;
(d)his shame, embarrassment and regret about what he had done in the past.
Mr Setiawan’s exigency claim was advanced with a degree of ambivalence and imprecision. He did not really refer to it in the letter he wrote to the Department in January 2014. In fact in that letter he described himself as having fallen in love with Australia, after he first came here in 1998. He said he was “an alcohol addict, young and single and made a stupid decision”. This “decision”, though not specified in his letter, would appear to be a reference to his conduct in (i) overstaying his tourist visa when it expired in August 1998, and (ii) subsequently applying for a protection visa in July 1999. His apparent characterisation of those matters as stupid decisions influenced by addiction and immaturity, do not sit comfortably with a claim that they were also materially influenced by any exigency associated with apprehensions of persecution and discrimination in Indonesia.
In the same January 2014 letter Mr Setiawan also referred to his 2001 Australian re-entry under a false passport and visa. This he described as a “terribly wrong decision” and the only “‘one-off’ big mistake that I ever made”. He expressed regret for what he had done. Again this kind of apologetic characterisation of the circumstances involved in Mr Setiawan’s 2001 “false passport” re-entry do not sit well with a claim that his conduct was to any real extent motivated by genuine subjective apprehensions about the risk of persecution and discrimination in Indonesia. The apparent dissonance was only highlighted by a passage in his evidence in chief in the review proceedings. In that passage Mr Setiawan’s counsel led from him the evidence that his 2001 re-entry under the false passport was more because of his perception of a lack of opportunities in Jakarta than apprehensions about his personal safety. Mr Setiawan himself explained that he started drinking after his protection visa application had been refused (presumably some time in about mid 2001) and after that, he could not really think properly. It was that combination of circumstances that he thought had something to do with his subsequent re-entry under the false passport.
Mr Setiawan’s evidence about the basis for his claimed apprehensions for his safety in Indonesia was rather general, scant and somewhat inconsistent. In his evidence in chief he emphasised the May 1998 riots (a matter to which I will return) and a few very limited and vague incidents that had occurred when he was a young schoolboy. These incidents involved having his shoes and wallet stolen. He was also asked about the situation that had confronted him after his return to Indonesia in 2001. His evidence was similarly limited, and rather ambivalent in its significance. He was asked the leading and extremely general question “what sort of persecution do Chinese people face in Indonesia” and he responded with four observations. It was difficult to find work. It was difficult to find housing. People in the street say “go back to your country”. One night he had been riding a motor bike and a “native” had grabbed him from behind. He had tried to run away, but he was caught and people screamed at him that he had tried to kick them. They beat him. The generality, and ambivalent significance of this evidence as being genuinely probative of real and significant apprehensions about the risk of persecution, is unimpressive and unpersuasive.
That view is essentially similar to the conclusions the Refugee Review Tribunal reached on two separate occasions in dealing with protection visa applications Mr Setiawan made – firstly in 1999 (in his real name) and secondly in 2001 (in the false name). The RRT’s 16 March 2001 reasons (which determined the 1999 application) recorded a history of the treatment of ethnic Chinese in Indonesia, particularly the May 1998 riots in Jakarta, and subsequent Indonesian government initiatives. The history noted that Jakarta’s Chinatown and the Glodok area (which was the area where Mr Setiawan lived) had been hardest hit by the violence in May 1998. The RRT also noted a more recent, but apparently far less serious, incident of rioting in the Glodok area in May 2000. The RRT noted that this background history provided some potential for violence directed at ethnic Chinese in Indonesia.
However the RRT went on to observe that Mr Setiawan had not attended the Tribunal hearing and had “not provided much detail of his claims in his application for a protection visa, nor in his application for review”. The RRT referred to a letter Mr Setiawan had written to the Tribunal complaining that his migration agent adviser had merely asked him to sign a blank visa application form and had made up a story that “would be made for other Indonesians”. The RRT noted that Mr Setiawan had provided little information other than a photograph of a fire damaged building said to be his home and to have been burnt down in the May 1998 riots, his Indonesian academic record, and a claim that his university studies had been stopped because of the riots. The RRT noted that Mr Setiawan provided no other information and had declined to attend the Tribunal’s hearing. The RRT concluded its reasons with the following finding:
While the Applicant may conceivably face some low level discrimination and harassment, which many ethnic Chinese have experienced, upon his return to Indonesia the Tribunal is not satisfied that this behaviour is sufficiently grave to constitute “some serious punishment or penalty or some significant detriment or disadvantage”, which could amount to persecution in the Convention sense.
The Tribunal understands the Applicant’s apprehension about returning to Indonesia but the Tribunal is not satisfied that he has a well-founded fear of persecution in Indonesia for a Convention reason now or in the reasonably foreseeable future.
In its 24 September 2002 reasons for decision, the RRT affirmed the rejection of the protection visa application Mr Setiawan made in the false name. In one passage of the reasons the RRT recited details of Mr Setiawan’s claims. Apart from the reference to the May 1998 riots, these included four specific incidents between 1984 and 1995 (when Mr Setiawan was aged between 8 and 19) when he was chased, had his wallet or bicycle stolen, and was bashed. There was a general claim that “many other incidents” when he was beaten “just because he did not bring his wallet and he did not have a lot of money”.
The RRT noted that Mr Setiawan did not attend the hearing and that it was not possible to examine his claims in detail. Thereafter there are two particularly significant passages of the Tribunal’s findings were in the following terms:
The Tribunal is unable to assess whether the applicant’s claims to previous persecution due to his Chinese ethnicity are genuine. However it is prepared to give him the benefit of the doubt. While the Tribunal accepts country information which indicates that the Indonesian government is committed to ensuring security for all Indonesian citizens, that the human rights situation for the Sino-Indonesians has improved under Presidents Wahid and Sukarnoputri both of which were democratically elected by the Indonesian people. State protection is available and adequate especially in Jakarta where, the Tribunal understands that the applicant’s family continues to live. DFAT advice noted above, also confirms that returning Sino Indonesians do not face additional dangers as a result of their having claimed refugee status under the Convention.
…
While the Tribunal finds that the applicant may have a genuine subjective fear of harm amounting to persecution, nevertheless on objective grounds, the Tribunal finds that the applicant’s claims are not supported by the facts and his fear of Convention based persecution is thus not well founded.
In the present proceedings Mr Setiawan was taken to the RRT’s 24 September 2002 description of the incidents of discrimination and persecution about which he had then complained. Mr Setiawan adopted the accuracy of the description. This adoption, together with the RRT’s acceptance of the genuineness of his asserted subjective apprehensions, was said to provide relevant and persuasive evidence that significantly mitigated the otherwise adverse inferences that could be drawn from Mr Setiawan’s past conduct.
The RRT’s 24 September 2002 decision provides no meaningful support to Mr Setiawan’s claims to contemporary good character. The RRT proceeded on the basis that, since the May 1998 riots Mr Setiawan did not feel secure. It recorded a further submission from Mr Setiawan (albeit in the false name) complaining that the situation in Indonesia was “getting worse”, that violence against Chinese and Christians had “increased dramatically” and that sooner or later “riots similar to those in May [1998] will occur again”. I note that in these proceedings no attempt was made on Mr Setiawan’s behalf to have him adopt this aspect of the submissions that he had put to the RRT in 2002.
It is important, in evaluating the potential contemporary significance of the RRT’s September 2002 reasons, and its acceptance that Mr Setiawan had a “genuine subjective fear of persecution” following the May 1998 riots, to bear in mind both the highly qualified nature of the RRT’s acceptance and what the RRT did not know. The qualified nature of the RRT’s acceptance was highlighted by its acknowledgement that, in the light of “analysis of country reporting” after May 1998, there was a real question whether Mr Setiawan’s asserted fears were objectively sustainable. Indeed the RRT explicitly said that it was unable to assess whether his persecution claims were genuine. It was merely prepared to give him “the benefit of the doubt”. When the RRT donated that benefit to Mr Setiawan there were some potentially very important matters it did not know. It did not know (i) that he was acting under a false name, (ii) had lived in Australia for almost the whole period since late July 1998, (iii) had “fallen in love” with Australia whilst here, (iv) had previously, but unsuccessfully, based a protection visa application solely on the basis of the May 1998 riots, (v) had only returned to Indonesia for a period of about two months in mid 2001, and (vi) had actually determined to return to Australia more because of his perception of a lack of opportunities in Jakarta than apprehensions about his personal safety.
My view is that there is neither doubt nor benefit to be extended in favour of Mr Setiawan in relation to the circumstances of his re-entry to Australia in September 2001 and his subsequent pursuit of a protection visa application. On the version of events he put in his 2 January 2014 letter to the Department he came to Australia on a tourist visa in 1998, fell in love with the country, and influenced by bad company and alcohol addiction, made a “stupid decision”. There is no reference in that letter to his conduct, in coming to Australia and refusing to return to Indonesia, being driven by apprehensions of persecution. Furthermore, he did not lodge his protection visa application until July 1999, after reading a magazine advertisement offering to “fix” problems in relation to visa status, and when the migration agent he consulted told him that he could only apply for a protection visa. He made that application almost exactly a year after his arrival, and more than 11 months after his tourist visa expired. This latter sequence of events rather underscores the reality implicit in his January 2014 letter, that his decision not to return to Indonesia was primarily motivated by his comparative preference for life in Australia, and his application for a protection visa, in both 1999 and 2001, was a stratagem to indulge that preference, rather than a genuine desire to escape persecution and discrimination. It is consistent with that version of events to note that in his current evidence to the Tribunal Mr Setiawan said he conceived the idea of obtaining a false passport, and making a further protective visa application, before he left Australia in July 2001. It is also consistent with that version of events to note that, despite the generality of the submissions he made to the RRT (and to which I have referred in paragraph 24 above) Mr Setiawan has at no stage credibly detailed any specific incidents of persecution or discrimination to which he was personally subjected after the riots in May 1998.
In his 25 March 2014 statutory declaration in the present proceedings Mr Setiawan said that after he returned to Indonesia in mid 2001 he had wanted to continue his studies, but he was prevented from doing so, was unable to work, ended up being confined to a relative’s house and there started his dependence on alcohol. The prospect of having no hope, and being “confined to a single room” made the idea of getting a false identity seem “very attractive” when a friend suggested it to him. That aspect of the contents of his statutory declaration is not consistent with his evidence at the Tribunal hearing, that the idea of getting a false passport and visa was one he had conceived in Australia and had returned to Indonesia in July 2001 with the intention of implementing.
It is fair to recognise that Mr Setiawan’s obvious and sustained preference to live in Australia rather than Indonesia is affected by a range of considerations. Those considerations will very likely include some degree of apprehension about the historical treatment of ethnic Chinese in Indonesia, and be particularly focussed upon the riots of May 1998 and their aftermath. For that reason, I accept that categorising Mr Setiawan’s sustained desire to live in Australia as a merely subjective preference may oversimplify the reasoning and impressions that have informed his preference. The fact of the riots in May 1998, and some personal impressions of a comparatively greater degree of non violent tolerance of his Chinese ethnicity in Australia, may contribute to his ultimate preference.
Accordingly, I am prepared to accept that some degree of apprehension about his assured future physical safety and acceptance in Indonesia influenced Mr Setiawan’s return to Australia in 2001. But in my opinion Mr Setiawan gets no meaningful benefit from that acceptance. He had put that apprehension forward in his 1999 protective visa application. But thereafter, if the matters recorded in the RRT’s 16 March 2001 reasons are accurate, he thereafter made no really conscientious attempt to support his claimed apprehension, despite pursuing a review application to the RRT. In my opinion, his return to Australia in 2001, under the false passport, is properly to be characterised as an unwillingness to present his claims in a detailed fashion, an unwillingness to assist in having the claims properly and fully evaluated, and a preference to indulge in deception and falsity rather than have his claims and apprehensions addressed on their merits. That is not conduct that conduces to an assessment of good character, irrespective of whether the assessment looks at the situation in 2001 or 13 years later, in 2014.
Furthermore, whatever small element of subjective justification might be extended to Mr Setiawan in relation to his dishonesty in 2001, it is difficult to regard it as extending to the irregularities associated with either his partner visa application in 2008 or his citizenship application in 2013. Mr Setiawan has provided no credible evidence to sustain the proposition that he was subjected to any material discrimination or persecution in the two years he lived in Indonesia between 2006 and 2008.
In his 25 March 2014 statutory declaration Mr Setiawan dealt briefly with his circumstances in that two year period between 2006 and 2008. He says his family assisted him, in particular in overcoming his alcohol dependence. But he was “still confined to homes that belonged to our relatives”. He hoped to re-commence his studies but it was difficult. A particular paragraph of his statutory declaration suggests that it was in this period that he “met an Australian national online” and “through her I was able to apply for a Partner visa”. This account and explanation, as expressed, does not appear to accord with information he provided in his 2008 application.
A perhaps small inconsistency involves the fact that Mr Setiawan had met his future wife “online” in October 2005, some nine months before he left Australia in July 2006. More significantly, after he returned to Indonesia at the end of July 2006 Mr Setiawan appears to have attempted to resume the marketing course that he had undertaken at the University of Tarumanagara between about 1995 and 1998. He produced the university’s transcript of his academic record. The transcript was apparently dated May 2007. Mr Setiawan explained, as I understood his evidence, that his difficulty in resuming the course was that given the lapse of time, he would not be given credit for the units he had previously completed. That kind of difficulty is an ordinary aspect of prudent educational practice, in refusing to recognise decade old studies as sufficient to demonstrate eligibility for a contemporary qualification. It does not appear to have anything to do with apprehensions about personal safety or ethnic persecution, and nothing in the evidence or submissions provided on Mr Setiawan’s behalf sought to make a connection with them.
In any event, Mr Setiawan did in fact undertake further education in 2007. He spent a year doing a commercial cookery course at International Hotel in Jakarta. This may have been a second choice activity, in comparison with obtaining recognition of the academic achievements in his partly completely marketing course, but it seems to be a far cry from the inference that might otherwise be drawn from his claim that he was “confined to homes that belonged to [his] relatives”. Furthermore, throughout this whole period, apart from attending the morning cooking course sessions, Mr Setiawan was self employed running a mobile phone business from his parents’ house. He said he had banners made up and had his own “shop”. This business, so located, may well have been a modest affair. But the point to be made is that Mr Setiawan both conducted such a business, and attended the cookery course, during this period. Those facts are consistent with a state of affairs where his experience at that time was not one of any personal, or general community, persecution or discrimination because of his ethnic Chinese origin. Perhaps some degree of explanation for this absence of evidence lies in the combined effect of two facts, both evident from the RRT reasons in 2001 and 2002. The first is that there had been significant Indonesian Government initiatives after May 1998 riots. The second is that Mr Setiawan’s parents’ home was located in the Glodok area in Jakarta – a location that may have considerably reduced the likelihood of his being exposed to personal discrimination or persecution.
Mr Setiawan’s principal explanation for his failure to provide accurate information in his 2008 application is shame and embarrassment about his previous immigration irregularities, particularly the period from September 2001 to July 2006 when he was living in Australia both under a false name and without a valid visa. Another aspect of his explanation is a suggestion that he relied, to some extent, on the immigration agent who assisted with the 2008 application. A specific aspect of that reliance, which was elicited from him in re-examination in a quite leading fashion, was that the agent had put Mr Setiawan “under pressure” not to reveal his previous conduct involving the use of the false passport.
I do not accept either that the migration agent advised Mr Setiawan to conceal the previous false passport and visa, or that it is a consideration that mitigates in favour of Mr Setiawan in any event. I do not accept the suggestion about the agent’s misconduct because (i) it was not raised in Mr Setiawan’s 2 January 2014 letter, (ii) it was not raised in a 23 January 2014 statement Mr Setiawan provided to the Tribunal in support of his review application, (iii) it was not raised in Mr Setiawan’s 25 March 2014 statutory declaration, and (iv) in the course of questioning from me, before his re-examination, Mr Setiawan specifically told me that he did not disclose his 2001 – 2006 period of entry and residence under the false passport, to the migration agent who assisted him with the 2008 application.
Mr Setiawan’s recollection that he thought he did disclose the false passport, and that the agent told him that he only wanted to know about what he did in his real name, emerged only in re-examination. It emerged only in response to a series of questions that were quite leading, and partly by reference to parts of the 2008 application where Mr Setiawan had disclosed both the fact of his 1999 protection visa application, and the cancellation of a 2006 student visa (because incomplete information had been supplied with the application). This is not to say that the recollection Mr Setiawan asserted in his re-examination was not genuinely asserted. It is to say that I have no confidence in its reliability, and I do not accept it.
In any event, the proposition that the advice Mr Setiawan may now believe the migration agent gave him, somehow mitigates the scope of his own misconduct, has only the most vague and general relevance. It has relevance to the extent that a person dealing with detailed forms, in a legal and administrative system that is not their own, and who is required to communicate in their second or third language, is necessarily reliant, to some extent on the advice they receive. But there is nothing obscure, nor culturally peculiar, about truth and honesty. Mr Setiawan made up details about his residence and employment, and had those details included in the application. He knew he was required to disclose all his previous visa applications and status. He knew he should have disclosed his prior use of a false passport. He read the application form after it was completed. He signed it in several places. He well knew that it included untrue information and that it did not include any information about his use of the false passport. His dishonesty is patent, and in no way excused or mitigated, by any advice he believes the migration agent may have given him.
Mr Setiawan provided no real justification or explanation for the failure to disclose his false passport and visa history in connection with his 2013 citizenship application. Significantly, he did not attempt to attribute any responsibility for that non-disclosure to advice he received from any migration agent. What he did say was that he did not “obtain the alternative identity to mislead anyone” (paragraph 1 of his 25 March 2014 statutory declaration), that he continued to hold a genuine fear of being harmed in Indonesia (paragraph 2 of his 25 March 2014 statutory declaration) and that his actions were “not intended to conceal any adverse information or to cause harm but rather to escape persecution” (paragraph 16 of his 25 March 2014). I do not accept any of these protestations. I recognise that the underlying belief that motivated Mr Setiawan in making them was a distinction, at least in his mind, between his general conduct and his migration misconduct. But the statements go beyond that assertion. It is simply incorrect to say that the false passport was not intended “to mislead anyone including the Australian government”. That was its actual and very deliberate purpose. Moreover, in the light of the contents of Mr Setiawan’s letters and statements in January 2014, and his evidence in chief that he came back to Australia in 2001 more because of his perception of a lack of opportunities in Jakarta than apprehensions about his personal safety, I do not accept that there is any real element of “genuine fear” of the kind he asserted in his 25 March 2014 statutory declaration.
Character assessment
As SM Creyke observed in Re Kola and Minister for Immigration and Border Protection [2014] AATA 349 at [31], the ordinary meaning of “good character” has connotations of both “enduring moral qualities” and “reputation”. But it is correct to say that the primary emphasis in any assessment of character has to be on “enduring moral qualities”. Nevertheless, both meanings are potentially relevant in any character assessment. Reputation may provide a basis for satisfaction about a person’s good character, because of an ordinarily justified assumption that good repute would not long endure without adequate evidence of underlying good character.
The simple description of good character, as primarily a reference to a person’s enduring moral qualities, has two significant points of emphasis. The concept of enduring quality highlights that character assessment ought to take into account a person’s behaviour over a period of time. (It is for this reason that an established reputation may be persuasive evidence of good character.) The concept of moral quality emphasises that character assessment is concerned with a person’s intrinsic values and judgment, rather than mere behavioural regularity and conformity. (It is for this reason that the true weight of an established reputation may have to be tested by exploring the nature, extent and accuracy of the factual observations on which it is based.) It follows that the two concepts of endurance and morality may involve competing propositions, in their application to particular circumstances. An adverse character assessment is not necessarily properly based on individual transgressions. Conversely, good reputation may not be conclusive of good character, and individual transgressions may provide a greater insight to a person’s intrinsic character than substantial periods of unremarkable and undemanding compliance with acceptable standards of behaviour.
Character assessment, particularly where a person’s adverse behaviour is presented as an aberration from their general conduct, is an impressionistic value judgment. Views can differ about the extent to which transgressions that are confined to one aspect of a person’s activities justify or require an adverse character assessment. Much depends on the frequency, consistency and circumstances of the particular events. Transgressions, even serious ones, that are truly aberrant, and occur in exceptional circumstances, may neither require nor warrant an adverse character assessment.
The difficulties of character assessment have a particular poignancy in relation to migration related dishonesty and fraud. On the one hand, both the underlying legislative provisions, and the administrative requirements typically evident in immigration forms (such as the elaborate procedural applications Mr Setiawan completed from time to time), emphasise the fundamental importance of both honesty and procedural regularity for the efficient and fair operation of Australia’s migration and citizenship regime. On the other hand, the inter-country movements of individuals are sometimes associated with extreme exigency. In situations of those kinds it would be unfair either to expect the morality, candour and honesty commonly encountered in ordinary life, or to draw significantly adverse character inferences from their absence. Of course these generalities, the insistence on honesty and candour on the one hand and, on the other, the harsh unreality of such insistence, are most readily applied at opposite ends of the spectrum of human interaction. Where any particular matter lies within that spectrum is a matter of impression and informed judgment.
It will be apparent from what I have written earlier that I do not regard Mr Setiawan’s various migration related transgressions, and certainly not those when (and after) he re-entered Australia in September 2001, as having occurred in circumstances of any real exigency. On the contrary, I consider the proper view to take is that he entered Australia in 2001 on a false passport primarily because he perceived that Australia offered him more opportunities. In his dishonest 2008 and 2013 applications Mr Setiawan’s circumstances were in no sense exigent. They were merely a self protective concealment of his past dishonesty.
There have been many cases where migration irregularities of the kind in which Mr Setiawan has engaged have been regarded as probative of the person’s lack of good character. There have been others where an apparently different conclusion has been reached. Three of those decisions Mr Setiawan relied on, by way of analogy, to support his contention of contemporary good character. These decisions were Re Najafi and Minister for Immigration and Citizenship (2008) 103 ALD 451; [2008] AATA 647; Re Shea and Minister for Immigration and Citizenship (2010) 115 ALD 467; [2010] AATA 378 and ReAl Hashimi and Minister for Immigration and Citizenship (2012) 130 ALD 640; [2012] AATA 534.
Examination of the three cases relied upon by Mr Setiawan show that only one of them (Al Hashimi) is exclusively involved with eligibility for citizenship. The other two cases involve visa cancellation or refusal under s 501 of the Migration Act 1958. The purpose of pointing out this difference is not to suggest that “good character” has relevantly different meanings between the Australian Citizenship Act 2007 and the Migration Act 1958. Rather it is to highlight that the visa cancellation or refusal power in the Migration Act is not solely concerned with “good character”. It is also concerned with the additional question whether, assuming that the person concerned is not of good character, their visa should be cancelled or refused. That discretionary question accounts for the apparently favourable outcome in the other two cited cases on which Mr Setiawan relied. However it is a discretionary question that does not arise in assessing compliance with the citizenship eligibility criteria in the Australian Citizenship Act 2007.
Because of the impressionistic nature of “good character” assessment, the particular difficulties that arise where migration related misconduct is sought to be characterised as an isolated and uninformative aberration, and what appears to be an element of misconception in the reliance Mr Setiawan’s submissions placed on the outcome of some of the visa cancellation/refusal decisions, I have thought it useful to provide a short survey of some analogous, or apparently analogous, matters.
In Re Bilouni and Minister for Immigration and Multicultural Affairs [2001] AATA 233 the applicant was a 26 year old Syrian national. She had migrated to Australia in 1997 under a spouse visa. Two years later she pleaded guilty to a shoplifting charge. It involved $17.69 worth of goods she stole from a Woolworths supermarket. She was fined $300. In her July 2000 citizenship application she did not disclose that conviction. Her failure to do so resulted in refusal of application on the ground that she was not of good character.
At the Tribunal hearing the applicant and her husband conceded that they had answered the relevant citizenship application question untruthfully, and because of a fear that a truthful answer would jeopardise the likelihood of its success. The Tribunal recognised the ordinarily fundamental importance of truth in such applications – but was nevertheless concerned not to allow a single transgression of that kind to determine the appropriate character assessment. The Tribunal said this:
47. … the Tribunal has found that [the Applicant’s husband] deliberately concealed the fact of the Applicant’s conviction. This is not in dispute by either party in these proceedings. The Tribunal considers that this could constitute a potentially serious offence under s 50 of the Act. Lying to official departmental employees is an extremely important matter. Not only does it put at risk the Respondent’s and the Department’s capacity to take at face value the evidence presented by these and other applicants for the grant of citizenship, in some cases it could result in regrettable grants of citizenship to entirely undesirable applicants. …
…
49. The [Australian Citizenship Instructions] at 4.8.21 speak of recorded convictions in the context of the grant of a permanent visa. They say that concealment of them from the visa decision-maker should be given quite some weight. “[T]he fact of deliberate concealment may be an indicator of a continuing lack of good character.” They do not go so far as to say that mere concealment automatically means that an applicant is not of good character.
The circumstances in Re Kim and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 239 involved an unsuccessful visa applicant who had originally arrived in Australia under a false name, overstayed their visa and then remained unlawfully in Australia for almost four years. During that time he had worked illegally and had also been convicted of criminal offences. He was subsequently detained and deported. A few months later he re-entered Australia, but in that visa application failed to declare personal details relating to the previous deportation. It was in that context that the Tribunal repeated a passage from an earlier decision in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148:
... 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 … Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.
The decision in Re Aydin and Minister for Immigration and Citizenship [2007] AATA 1567 involved a citizenship application by a 39 year old man. He had come to Australia from Turkey as a six year old. Between the ages of 15 and 32 he had been convicted of 46 separate offences, ranging from drink driving and shoplifting through to drug trafficking and assault occasioning actual bodily harm. He had returned to Turkey in 2000 to do compulsory military service. Whilst there he married and returned to Australia in 2002. His wife had become an Australian citizen. Since his return from Turkey he had been in constant employment. He also provided a number of references from friends and employers.
The Tribunal recorded being impressed by the Applicant’s candour and genuineness, despite his extensive criminal record. The Tribunal recorded its satisfaction that he was seriously attempting to live a good and responsible life and was clearly supported by his wife, friends and employers. Nevertheless, the Tribunal was not satisfied that his five years of good behaviour in the period since his return from Turkey was sufficient to demonstrate his contemporary good character. The Tribunal said this:
15. However, for most of Mr Aydin’s adult life, he did not demonstrate these qualities. His criminal record is remarkably long and includes, even without the crimes of violence he denies, some serious offences. It takes time to change an entrenched pattern of behaviour and time to demonstrate a lasting change. I consider that Mr Aydin has not yet demonstrated such a lasting change, although the reforms he has made so far are admirable. I consider that the passage of some further time, during which Mr Aydin perseveres on his current path, will serve to establish his good character. However, he has not, in view of his long history, reached that point yet.
Re Najafi and Minister for Immigration and Citizenship (2008) 103 ALD 451; [2008] AATA 647 concerned a partner visa application by a Pakistani national who had used a photo-substituted passport of a returning resident to enter Australia in 1995. In 1996 he had unsuccessfully applied for a protection visa, alleging persecution in Pakistan for being a Christian. He married in 2002 while he was present in Australia without a valid visa. During that time he had also worked unlawfully. He voluntarily left Australia in March 2005 and lived in Pakistan with his wife until January 2006. She returned to Australia after that, whilst he remained in Pakistan.
The Tribunal described the good character requirement in the following terms:
[22] The concept of good character is concerned with the issue of whether the visa applicant, “in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry”: Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at 324; [1999] FCA 1277. Although the term “general conduct” implies universality, it is sufficient if some incidences of general conduct be displayed but once or twice, thereby “lay[ing] character bare very tellingly”: see Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 195; 153 ALR 463 at 470; 45 ALD 136 at 142.
The Tribunal noted the contention that Mr Najafi’s contemporary good character was demonstrated by his voluntary departure from Australia in 2005, his remorse for his irregular presence and activities in Australia, and his subsequent maintenance of gainful employment in Pakistan. The Tribunal specifically noted that there was no evidence of any criminal convictions either in Australia or Pakistan. The Tribunal nevertheless concluded that:
[26] These facts, however, do not displace the serious and repeated misconduct of Mr Najafi. Several of his offences attract significant terms of imprisonment under the Act. His conduct, in its seriousness and duration over a period of years, shows an “enduring moral quality” that falls squarely outside the meaning of “good character”. The tribunal has no hesitation in concluding that Mr Najafi does not satisfy the character test in subsection 501(6)(c)(ii) of the Act.
The case of Re Shea and Minister for Immigration and Citizenship (2010) 115 ALD 467; [2010] AATA 378 was that of a 45 year old Thai national who had unsuccessfully applied for a partner visa. She had a long history of immigration related irregularities. They included (i) obtaining a tourist visa in 1993 based on false information, (ii) a 1996 conviction and imprisonment in Thailand for obtaining a forged visa, (iii) entering Australia in 1996 on a false passport, (iv) lodging a protection visa application in 1997 based on false information, and (v) remaining in Australia, without a proper visa, between 1997 and 2003. Ms Shea voluntarily returned to Thailand in late 2003. There she married her Australian husband. Later that year she lodged an application for a partner visa. That visa was refused on character grounds.
Ms Shea had only attended school for one or two years and was illiterate. She claimed she was unaware her 1993 visa information was false. She also claimed she did not know her 1996 passport was false until she was on the plane en route to Australia. She started a domestic relationship with her husband in the middle of 1997, but did not tell him about her irregular migration status until about 2002. She claimed, because of her illiteracy, to have no knowledge of the contents of her 1997 protection visa application.
The Tribunal concluded that Ms Shea failed the character test, despite making considerable allowances for Ms Shea’s personal circumstances. The Tribunal preceded its finding that she failed the relevant character test, by noting that in making its assessment it was required:
[36] … to consider the circumstances surrounding the offending which may explain the conduct, together with any evidence indicating that the person may have reformed. … Ms Shea is illiterate and had little knowledge of immigration laws. She was also gullible and it would have been easy for others to exploit her, as seems to have happened when she came to Australia in December 1996 and was pressured into working in a brothel to pay off a large debt. Ms Shea’s ultimate objective in coming to Australia was to provide financial support for her family and … Thailand does not have such a relatively sophisticated system for providing support for those in poverty as that in Australia. … Ms Shea returned to Thailand voluntarily in 2003 and has remained there for the past 7 years separated from her husband. Further, … in these proceedings Ms Shea expressed appropriate remorse for her actions, apologising sincerely on a number of occasions in the course of giving evidence.
[37] With regard to other relevant matters, I note that Ms Shea appears to have been removed from Australia when she was arrested by immigration officers in April 1993.
The circumstances in Re Al Hashimi and Minister for Immigration and Citizenship (2012) 130 ALD 640; [2012] AATA 534 involved a citizenship application by a 63 year old, tertiary educated Iraqi national of ethnic Iranian origin. In the early 1980s he had been deported to Iran, pursuant to Iraqi government policy. He fled Iran in 2000 after the Iran-Iraq war, and came to Australia as an “unauthorised boat arrival” in 2001. He was subsequently convicted of one offence of taking part in “people smuggling”. He was also convicted of an assault offence arising out of an incident in 2004 when he was in immigration custody. He was granted a temporary protection visa in 2005 and obtained permanent resident status in June 2009. His 2010 citizenship application was refused on character grounds. A similar application was refused on the same grounds in January 2012. In August 2012 the Tribunal declared its satisfaction that he was a person of good character, and set aside the refusal of his application.
The Tribunal’s satisfaction of Mr Al Hashimi’s good character was influenced substantially by his exemplary record, highly persuasive commendations from a large number of independent witnesses, and by a satisfaction that the exigencies that had led to his unauthorised arrival in Australia, and the associated conviction, were “a one-off occurrence that [could] now be considered ‘out of character’”. The Tribunal’s reasoning was expressed in the following paragraphs:
[56] Although there is substantial evidence before the tribunal regarding the applicant’s good standing and reputation in the local community, the critical question for the tribunal’s consideration is whether the applicant is a person with “enduring moral qualities” which indicate that he is truly a person of good character.
[57] Having regard to the applicant’s undisputed good character up until the circumstances of the relevant offence in late-November 2000 and to his unblemished record of good conduct (apart from the minor common assault committed by him in late-2004) since then, and having regard to the circumstances in which the first … offence was committed, namely, circumstances in which the applicant, having fled Iran, was in Malaysia with his family trying to arrange passage to Indonesia and then to Australia with a view to seeking asylum in Australia, the tribunal regards that offence as (in the words of the Australian Citizenship Instructions) “a one-off occurrence that can now be considered ‘out of character’.”
Re Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97 involved an unsuccessful citizenship application by a 51 year old Iraqi citizen. In his August 2012 citizenship application he answered “no” to a question “[h]ave you been known by any other names”. In a subsequent document in October 2012 he answered a similar question in the same way. In fact he had changed his name by deed poll in 2003. He provided a copy of that deed to the department in November 2012, in response to a specific request for copies of all certificates of any name changes he had made. He provided a copy of a further change of name certificate that had been registered in February 2012. It subsequently emerged that in making this name change application the Applicant had yet again answered “no” to a question “[h]ave you previously changed your name (legally) in Australia or overseas (including marriage)?”
In his August 2012 citizenship application the applicant had also not disclosed the fact of a conviction in 2005. That conviction, according to subsequently obtained information, was for fraud.
The Applicant appeared to have some difficulties with the English language and gave his evidence through an interpreter. He also claimed to suffer from a number of health issues, including psychological problems that affected his ability to remember things accurately. Despite those potentially mitigating considerations, the Tribunal concluded that he was not a person of good character:
44. Having regard to:
·the fact that in March 2005 the applicant was convicted of a crime involving dishonesty;
·the Tribunal’s finding that in 2012 he knowingly made the abovementioned false statements to the Registry of Births, Deaths and Marriages (WA) and to the Department for the purpose of obtaining a benefit or advantage; and
·the Tribunal’s serious reservations regarding the candour of his oral evidence at the hearing in December 2013 regarding his making of the abovementioned false statements;
the Tribunal is not satisfied that the applicant is yet rehabilitated to the extent that he can now properly be regarded as a person of good character.
The decision in Re Assafiri and Minister for Immigration and Border Protection [2014] AATA 35 concerned a 35 year old Lebanese citizen who was married to an Australian and had held a permanent resident visa since March 2005. In 2006 he was convicted of offences relating to a series of international money transfers and ultimately sentenced to 17 months’ imprisonment. He was released in February 2008 on a 12 month good behaviour bond.
The conduct underlying the offences was the use of a falsified certificate of Australian citizenship to obtain a New South Wales driver’s licence, and thereafter open bank accounts in a company’s name using false identities. The Court of Criminal Appeal, in dealing with Mr Assafiri’s sentence appeal noted that he had been involved in a significant way with the laundering of money so that it could be sent overseas.
The Tribunal referred to a submission to the effect that the standard of “good character” required for citizenship was higher than that required by s 501 of the Migration Act 1958 (under which the Minister may cancel a visa in the absence of satisfaction that they pass the character test in the Act). The Tribunal rejected this submission – in the following passage:
[56] A number of decisions of the Tribunal are cited in support of this submission including Mlinar v Minister for Immigration and Citizenship (1997) 48 ALD 771 in which the Tribunal said the test of good character in the Citizenship Act requires a higher standard “because of the importance of citizenship and the greater responsibilities and privileges attached to it”. See also Ngoc Thien Vo and Minister for Immigration and Multicultural Affairs [2005] AATA 1042; Munther Shukure and Minister for Immigration and Multicultural Affairs [2006] AATA 63, [4]; Mohammad Hoaylah and Minister for Immigration [2006] AATA 260, [23]; Chun and Minister for Immigration and Citizenship (2011) 122 ALD 419, [20]; Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372, [39]; Chen and Minister for Immigration and Citizenship (2012) 128 ALD 682, [32], [35].
[57] Citizenship is unarguably a privilege that is not to be conferred lightly but it is not clear to me what it means to say that it involves a higher test of character than required by the Migration Act 1958.
…
[59] I respectfully agree with Deputy President Tamberlin who said in Re Al-Agram and Minister for Immigration [2012] AATA 593:
It is accepted that citizenship is a substantial privilege which should not be conferred lightly. However, I do not accept for the purposes of a citizenship application that the standard of good character expected of a prospective citizen is any greater or higher than that required under the Migration Act 1958 (Migration Act) for cancellation of a visa as was suggested in the submissions for the Minister. The question is simply whether he is of “good character.
The Tribunal then went on to records its satisfaction that Mr Assafiri was not of good character. It did so in the following terms:
[63] I accept all that is said in Mr Assafiri’s favour and I accept that he is genuinely motivated to put his criminal record behind him and prove himself a good father and role model to his children. However, I am not satisfied, on the information before me, that sufficient time has passed to be satisfied that he is of good character for the purposes of the Citizenship Act.
[64] There is no formula for determining how much is sufficient time in order to be satisfied that a person is of good character. The ACIs refer to the phrase “enduring moral qualities” as encompassing the concept of “characteristics which have been demonstrated over a very long period of time”: 10.3.1. At 10.5.2 they state that, in the case of a serious offence, “a significant amount of time may have to have passed before the decision maker is satisfied that the person is now of good character”. A decision-maker “needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any […] application”: cl 10.5.4.
[65] I accept that Mr Assafiri found himself in difficult circumstances being in a new country with almost no English and a family to support. I accept that he may have been vulnerable to offers of easy money but he was apparently receiving Centrelink benefits and, after a time, income from occasional employment. I accept that he might not have appreciated how seriously the offences would be taken in Australia but he knew what he was doing was wrong.
Re Kola and Minister for Immigration and Border Protection [2014] AATA 349 involved a 37 year old Albanian national. He had come to Australia on a tourist visa in 1996. Shortly afterwards he married an Australian citizen. Whilst that marriage lasted he held a spouse visa of one form or another. In August 2001, after separating from his wife, he applied for a protection visa, because of circumstances affecting his family in Albania. His unsuccessful pursuit of protection visa claims saw him remain in Australia until November 2005, when he voluntarily left the country. He returned to Australia in 2008 on a false passport. But soon after his arrival that matter was disclosed to the immigration authorities and, by December 2008, he had been granted a protection visa.
Mr Kola’s June 2012 citizenship application was rejected on character grounds. Central to that refusal was the fact that Mr Kola has used a false passport to visit Albania in 2003 to visit his seriously ill father, and then return to Australia. In 2008, in circumstances that the Tribunal regarded as lacking any similar element of exigency, he had again obtained a false passport and used it to enter Australia. The Tribunal concluded that Mr Kola has not established that he was of good character. The Tribunal said:
[31] The Tribunal accepts that Mr Kola had a genuine concern for his personal safety on this visit and that concern was reasonable. He denied that he had acquired a false passport so as not to jeopardise his application for a protection visa. The offences were over ten years ago, Mr Kola was then only 25 years of age, and, on its own the circumstances surrounding these convictions were insufficient to establish that Mr Kola was a person of bad character. Even when his speeding offence is taken into consideration, the Tribunal is satisfied that at this point, no pattern of bad character had emerged.
[32] However, Mr Kola committed a similar offence on a second occasion when he entered Australia on a false passport in 2008. Although no conviction is recorded it is not clear whether Mr Kola knew that persons entering Australia on a false passport were generally not prosecuted. He did know that his means of entry to, and presence in, Australia when he arrived in 2008 was unauthorised. He was sufficiently concerned about these issues, despite being seriously ill, to travel from Adelaide to see his migration agent in Canberra to see whether she could help him regularise his status. So he was aware that under Australian law his actions were unlawful.
Application to Mr Setiawan
In paragraph 43 above I set out my view of Mr Setiawan’s conduct in relation to the migration irregularities identified by the Minister, and which I have outlined in paragraphs 4 and 5 above. That conduct shows persistent and deliberate dishonesty in relation to the content of Mr Setiawan’s visa applications. That dishonesty has been repeated in his citizenship application. As I said in paragraph 43, his conduct is not relevantly or readily to be significantly mitigated by his assertions of exigency about risks of persecution and discrimination in Indonesia. Mr Setiawan’s repeated misconduct, starting in 2001 and re-manifesting in his 2013 citizenship application, is not the conduct of a person who can now be regarded as of good character.
That conclusion is not rendered invalid by the commendations Mr Setiawan has received from the small number of witnesses he called to support his application. The views of those people were not formed with the benefit of precise information about the nature, extent and circumstances of the spectrum of his immigration misconduct. It is unnecessary to speculate about whether their complimentary views about Mr Setiawan’s contemporary good character would have survived a fully informed examination of his conduct, of the kind that occurred in the present proceedings. It is sufficient to record that, having regard to the matters I have summarised in the preceding paragraph, I am satisfied that, at the present time, Mr Setiawan is not of good character.
The decision under review is affirmed.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor, SC, Senior Member ..................[sgd]..................................................
Associate
Dated 18 September 2014
Dates of hearing 2 and 3 September 2014 Counsel for the Applicant Mr J Williams Solicitors for the Applicant Andronicos Migration Lawyers Solicitors for the Respondent Mr M Bock, Clayton Utz
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