Hossain and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 3645

Hossain and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3645 (27 September 2018)

Division:GENERAL DIVISION

File Number(s):      2017/2988

Re:Md Shahid Hossain

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:27 September 2018  

Place:Sydney

The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 19 May 2017 to refuse Mr Hossain's application for Australian citizenship by conferral is affirmed.

....................[sgd]....................................................

J W Constance
Deputy President

CATCHWORDS

CITIZENSHIP - application for citizenship by conferral - refusal of citizenship - whether the applicant is of good character - applicant living in Australia unlawfully for periods of time - costs orders ordered against applicant - application of Citizenship Policy - decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

Migration Act 1958 (Cth)

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) Commonwealth, Parliamentary Debates, House of Representatives, 9 November 2005 (John Cobb)

REASONS FOR DECISION

27 September 2018 

INTRODUCTION

1. Mr Hossain applied for Australian citizenship by conferral on 16 March 2015.

2. A delegate of the Minister refused the application on the ground that Mr Hossain had not established that he was of good character on 19 May 2017, being the date the decision was made. Mr Hossain has applied to the Tribunal to review the delegate’s decision.

3. For the reasons which follow, the decision under review will be affirmed.

   BACKGROUND

4. Unless otherwise stated, the findings of fact set out in these reasons for decision are based on the evidence of Mr Hossain. I am satisfied of the facts found on the balance of probabilities.

5. Mr Hossain was born in Bangladesh in 1963. He is a citizen of that country.

6. Mr Hossain first entered Australia in February 1996 as the holder of Tourist visa (Subclass 676). He has resided in Australia ever since on a series of visas as follows:

   ·     Bridging Visa WA-10 granted 21 March 1999, ceased 19 February 1999;

   ·     Bridging Visa WE-050 granted 11 November 1999, ceased 18 July 2003;

   ·     Bridging Visa WE-050 granted 22 May 2003, ceased 2 December 2005;

   ·     Bridging Visa WE-050 granted 20 February 2006, ceased 10 May 2006;

   ·     Bridging Visa WE-050 granted 16 April 2006, ceased 16 July 2008;

   ·     Bridging Visa WE-050 granted 15 July 2008, ceased 26 August 2008;

   ·     Bridging Visa WE-050 granted 26 August 2008, ceased 26 November 2008;

   ·     Bridging Visa WE-050 granted 25 November 2008, ceased 25 February 2009;

   ·     Bridging Visa WE-050 granted 23 February 2009, ceased 25 May 2009;

   ·     Bridging Visa WE-050 granted 6 March 2009, ceased 23 May 2009;

   ·     Bridging Visa WE-050 granted 19 May 2009, ceased 23 June 2009;

   ·     Bridging Visa WE-050 granted 23 June 2009, ceased 19 August 2009;

   ·     Bridging Visa WE-050 granted 17 August 2009, ceased 16 November 2009;

   ·     CB-151 (“Former Resident”) visa granted 22 October 2009, ceased 15 May 2017;

   ·     BB-155 (“Resident Return”) visa granted 15 May 2017, remains in effect.[1]

   [1] Exhibit A2 at 1-2.

7. Between the following dates Mr Hossain did not hold a valid visa and, as a result, he resided in Australia as an unlawful non-citizen during those times:

   ·20 February 1999 to 11 November 1999;

   ·3 December 2005 to 20 February 2006;

   ·11 May 2006 to16 April 2008.

8. In March 1996, Mr Hossain applied for a Protection visa. His application was refused in January 1997 and in January 1999 the Refugee Review Tribunal affirmed the refusal. In the years which followed (up until October 2009), Mr Hossain embarked upon a series of applications to the Courts and to the Minister seeking to have the Tribunal’s decision overturned. On 22 October 2009, Mr Hossain was granted a permanent visa by the Minister.

9. During the various proceedings a number of costs orders, totalling $10.700.00, were made against Mr Hossain and in favour of the Commonwealth. On 5 October 2016, Mr Hossain signed an undertaking to repay this debt by instalments. He had not made any payments of the costs ordered prior to that date.

   ISSUE FOR DETERMINATION

10. The issue before me is whether, at the time of this decision, Mr Hossain is of good character within the meaning of the Australian Citizenship Act 2007 (Cth).

    LEGISLATION

11. Applications for conferral of Australian citizenship are governed by the Australian Citizenship Act 2007 (Cth).

12. Section 24 of the Act provides:

    (1)    If a person makes an application under section 21, the Minister must, by

    writing, approve or refuse to approve the person becoming an Australian citizen.

    (1A)    The Minister must not approve the person becoming an Australian citizen

    unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

13. Section 21(2) of the Act establishes the requirements of eligibility for the grant of citizenship. It provides, in part:

    (2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

    …

    (h)is of good character at the time of the Minister’s decision on the application.

14. This is the only subsection that is in issue in the present application. As the Tribunal stands in the shoes of the decision-maker, these requirements of the law are applicable to the decision that I must make.

    Citizenship Policy

15. The Citizenship Policy[2] has been adopted by the Minister to guide those making decisions under the Act. Chapter 11 provides “guidance on the administration of the ‘good character’ provisions under the Act” and defines “for administrative purposes, the meaning of ‘good character’”.

    [2] Department of Immigration and Border Protection, Citizenship Policy (1 June 2016) Commonwealth, Parliamentary Debates, House of Representatives, 9 November 2005 (John Cobb).

16. The Citizenship Policy reflects government policy and is not binding on the Tribunal. However the Tribunal should apply the Policy unless there are “cogent reasons to the contrary”.[3] I am satisfied in this matter that there are no reasons why I should not apply it.

    [3] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645.

17. Chapter 11 provides in part:

    ‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.[4]

    [4] Above n 2 at 145.

18. This reflects what the Federal Court said in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[5]

    Unless the terms of the Act and regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion. ...A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. ...Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

    [5] (1996) 68 FCR 422 at 431-432 (citations omitted).

19. After referring to the judgment of the Court in Irving, Chapter 11 provides, in part:

    In this context, “moral” does not have any religious connotations. The phrase “enduring moral qualities” encompasses the following concepts:

    ocharacteristics which have been demonstrated over a very long period of time

    odistinguishing right from wrong

    obehaving in an ethical manner, conforming to the rules and values of Australian society.

    The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.[6]

    [6] Above n 2 at 145.

20. In considering the Citizenship Policy I have taken into account that it refers to the decision of this Tribunal in Zheng and Minister for Immigration and Citizenship[7] in which the Tribunal said:

    In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.[8]

    [7] [2011] AATA 304.

    [8] Ibid at [120].

21. The Citizenship Policy goes on to say that an applicant of good character would, amongst other things, respect and abide by the law of Australia, be truthful, and not practise deception in his or her dealings with the Australian Government.[9]

    [9]  Above n 2 at 147.

22. These authorities along with the Citizenship Policy make it clear that abiding by Australian laws is a very important factor that I need to consider.

    CONSIDERATION

    Characteristics of a person of good character

23. Chapter 11 of the Citizenship Policy provides a non-exhaustive list of characteristics which a person of good character would have. These are to be considered with other provisions of the Chapter. They include “respect and abide by the law in Australia and other countries.”[10]

    [10] Ibid.

24. It is a matter of weighing up the various factors in the evidence before me. Under the heading of Weighing up the character decision, the Citizenship Policy provides:

    Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of “good character” requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.

    In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:

    ·     would a person of good character have behaved the way the applicant did

    ·     what is there to demonstrate that the applicant has upheld and obeyed the law

    ·     has the applicant behaved in accordance with Australia's community standards

    ·     does the applicant share Australia’s democratic beliefs and respect its rights and liberties.[11]

    [11] Ibid at 149-150.

25. I note that there is once again a reference to the question of whether an applicant for citizenship has upheld and obeyed the laws of Australia.

    The Minister’s argument

26. It was argued on behalf of the Minister that I cannot be satisfied that Mr Hossain is of good character because of his disregard of the law and court processes, in that:

    ·Mr Hossain resided in Australia for a significant period as an unlawful non-citizen;

    ·he engaged in litigation in breach of Court orders; and

    ·he failed to pay the debt owing to the Commonwealth or to make arrangements for its payment until October 2016.

    Previous Court proceedings

27. On 15 January 1999 the Refugee Review Tribunal affirmed a decision to refuse Mr Hossain’s application for a Protection visa.

28. Mr Hossain applied to the Federal Court to review this decision. On 18 June 1999, the Court dismissed the application and ordered Mr Hossain to pay the costs of the Minister for Immigration and Multicultural Affairs.[12] These costs were assessed to be $6,200.00.[13]

    [12] Exhibit R1 at 98-109.

    [13] Exhibit R1 at 111.

29. In June 1999 Mr Hossain joined High Court proceedings as a represented party, again seeking to challenge the decision of the Refugee Review Tribunal. On 25 November 2002 the High Court made orders whereby Mr Hossain ceased to be a party in the proceedings before it.[14]

    [14] Exhibit R1 at 137.

30. On 22 May 2003 Mr Hossain commenced further proceedings in the High Court which were remitted to the Federal Court. On 4 November 2005 the Federal Court dismissed Mr Hossain’s application and ordered costs against him.[15]

    [15] Exhibit R1 at 137.

31. On 24 November 2005 Mr Hossain applied for leave to appeal the Court’s decision. This application was dismissed in his absence on 8 December 2005. Costs were awarded against him.[16]

    [16] Exhibit R1 at 137.

32. Mr Hossain commenced proceedings in the Federal Magistrates Court on 23 January 2006 seeking a review of the same Refugee Review Tribunal decision. On 12 April 2006 this application was dismissed as being an abuse of process. In its judgement the Court said, in part:

    It is quite clear that this fresh application to this Court has been brought about for an ancillary purpose, which would be connected to the applicant’s bridging visa.

    The entire circumstances make it clear that this application is an abuse of process.[17]

    The Court made the following order:

    The Applicant is restrained from filing any application for review of the decision of the Refugee Review Tribunal made on 15 January 1999 at any registry of this Court without leave.[18]

    [17] Exhibit R1 at 127.

    [18] Exhibit R1 at 137.

33. Mr Hossain then sought leave to appeal the Court’s decision. This application was dismissed with costs of $1300.00 ordered against him on 14 June 2006.[19]

    [19] Exhibit R1 at 133.

34. The High Court dismissed Mr Hossain’s application for special leave to appeal on 8 February 2007.[20]

    [20] Exhibit R1 at 138.

35. On 1 March 2007 Mr Hossain commenced further proceedings in the Federal Magistrate’s Court seeking a review of the original decision of the Tribunal. This application was made without leave. In dismissing the application, the Court said:

    The application is a most egregious abuse of process. The Applicant cannot keep filing applications in Court to rehear matters which have already been heard and decided and appealed upon and decided and appealed upon and appeal being refused. I propose to dismiss the application, first, because there is no jurisdiction. Secondly, because the application is an abuse of process, and third, I propose to refuse leave to file the application.[21]

    Costs of $1500.00 were ordered against Mr Hossain.[22]

    [21] Exhibit R1 at 138.

    [22] Exhibit R1 at 128.

    Mr Hossain’ evidence

36. When the Solicitor for the Minister put to Mr Hossain at the hearing of the application before me that he understood that he was abusing the process of the Courts, he replied:

    So, that is the court’s version, however, my version is also that there was an abuse towards the applicants, who are the clients, in regards to the decision.[23]

    [23] Transcript 07/02/18 at 24.

37. From Mr Hossain’s evidence I am satisfied that he remains of the view that his application was not properly considered by the Tribunal.

38. Mr Hossain was aware of the costs orders against him. He said that he believed that these orders ceased to have effect when he was granted a permanent resident visa in October 2009. His reason for this belief was that no demand was made for payment at the time of the grant of the visa.

39. Mr Hossain was again notified of the debt to the Commonwealth in 2015, when he applied for citizenship. He entered into an arrangement to pay the debt in October 2016.[24]

    [24] Exhibit A2.

40. None of the visas issued to Mr Hossain between May 2003 and March 2009 permitted him to work in Australia. Mr Hossain worked as a taxi driver during this period and produced to the Tribunal copies of his tax records showing that he lodged returns for each of the financial years ended June 2002 to June 2009 inclusive.[25] He was aware that it was illegal for him to work during this time but it was necessary that he work to survive. He declared all income earned.

    [25] Exhibit A2.

    Evidence of Mr Islam, President of the Eastern Community Welfare & Cultural Centre

41. Mr Islam provided a statutory declaration made 15 December 2017[26] and gave evidence at the hearing.

    [26] Exhibit A6.

42. The Centre assists members of the Bengali and Arab communities and provides a range of community services.

43. Mr Islam has known Mr Hossain for over 12 years. Mr Hossain has assisted with many community activities and is known to Mr Islam as a dedicated and hard-working person.

    Further evidence as to Mr Hossain’s good standing in the community

44. Mr Hossain referred me to several statements and statutory declarations as to his personal attributes and standing in his community.[27] I have considered the views expressed. However, in most part they refer to his standing in the community rather than his enduring moral qualities, and accordingly, they are of very limited assistance in determining the issue before me.      

    [27] Exhibits A3, A4, A5, A6, A7 and A8.

    Weighing the various factors

45. Mr Hossain's failure to obey Australian law by remaining in this country as an unlawful non-citizen for periods totalling almost three years, is a serious matter. I am satisfied that he was aware of his unlawful status and that he was prepared to break the law to further his aim to gain long-term resident status. He was also prepared to break the law by working in breach of the conditions of several of the visas granted to him.  He explained this situation by saying that it was necessary for his survival. Nevertheless, he put himself in this situation by electing to remain in Australia rather than to return to Bangladesh and to apply to return to Australia through the appropriate channels.

46. Subsection 235(3) of the Migration Act 1958 (Cth) provides:

    An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.

47. Mr Hossain has also shown that he is prepared to ignore the orders of Australia’s judicial system in order to pursue his own goals. I did not find his evidence on this matter convincing. At times he was vague and evasive. I am satisfied that he continues to believe that he was justified in acting in the manner in which he did.

48. I have taken into account that Mr Hossain has now entered an arrangement to pay the costs ordered. However, I note that he did this only after he applied for citizenship.   

49. Chapter 11 of the Citizenship Policy refers to the “enduring moral qualities of a person”. That phrase encompasses characteristics “which have been demonstrated over a very long period of time”. Importantly, in this application, it refers to ethical behaviour “conforming to the rules and values of Australian society.”

50. For a significant part of the first 12 years that Mr Hossain resided in Australia, he did not conform to the rules and values of Australian society. He breached immigration laws by continuing to reside in Australia when he was not entitled to do so, notwithstanding that he had previously been granted the privilege of living here. Furthermore, at times when he was entitled to live in Australia he breached the conditions of the visas granted to him.

51. I am satisfied that Mr Hossain has been a lawful resident since 17 April 2008 and has not committed any offences since that time. He has been lawfully employed and has contributed to Australian society by paying the appropriate tax on the income he has earned.

52. The change in Mr Hossain’s attitude to the laws of Australia only came about when he was granted a permanent visa. Up until that time, he was determined to live and work in Australia, whether or not he was lawfully entitled to do so. In these circumstances, I am not satisfied that Mr Hossain has exhibited the “enduring moral qualities” to enable me to be satisfied that at present he is of good character.

    CONCLUSION

1. The reviewable decision of the delegate of the Minister for Immigration and Border Protection made 19 May 2017 to refuse Mr Hossain' application for Australian citizenship by conferral will be affirmed.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

..................[sgd]......................................................

Associate

Dated: 27 September 2018

Date(s) of hearing:	7 and 8 February 2018 9 March 2018
Solicitors for the Applicant:	Concordia Pacific
Solicitors for the Respondent:	Australian Government Solicitor