Jiang and Minister for Immigration and Border Protection (Citizenship)
[2015] AATA 597
•14 August 2015
Jiang and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 597 (14 August 2015)
Division
GENERAL DIVISION
File Number
2014/6584
Re
Shen Jiang
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 14 August 2015 Place Melbourne The decision under review is affirmed.
............................[sgd]............................................
Egon Fice, Senior Member
Catchwords
CITIZENSHIP – Grant of citizenship – Eligibility and refusal generally – Good character – Applicant had prior criminal record but no convictions recorded – Insufficient time to demonstrate reformed character – Decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth) ss 21, 24, 52
Sentencing Act 1991 (Vic) s 8
Cases
DPP v Dawn-Manuel [2014] VCC 1810 (21 October 2014)
Fletcher v Federal Commission of Taxation (1988) 19 FCR 442
Frugtniet v Board of Examiners [2005] VSC 332 (24 August 2005)
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re B [1981] 2 NSWLR 372
Re Davis (1947) 75 CLR 409Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
Department of Immigration and Border Protection, Australian Citizenship Instructions (1 July 2014) Ch 10
William Little, H W Fowler and Jessie Coulson, The Shorter Oxford English Dictionary (Oxford University Press, 3rd revised ed, 1983) vol 1REASONS FOR DECISION
Egon Fice, Senior Member
14 August 2015
On 13 June 2014 Mr Shen Jiang lodged an application for the conferring of Australian Citizenship. After considering his application, a Citizenship Officer with the Department of Immigration and Border Protection notified Mr Jiang in a letter dated 1 December 2014 that his application for Australian citizenship had been refused. That decision was made pursuant to s. 24 of the Australian Citizenship Act 2007 (the Act). The Officer found that Mr Jiang did not satisfy the good character requirement set out in s. 21(2).
Section 52(1)(b) provides that an application may be made to the Administrative Appeals Tribunal (the Tribunal) for a review of a decision under s. 24 to refuse to approve a person becoming an Australian citizen. Mr Jiang lodged an application with the Tribunal on
19 December 2014 seeking a review of the decision to refuse his application for Australian citizenship.
The General Eligibility requirements for a grant of citizenship are set out in s. 21(2) of the Act. Relevantly, it provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(a)is of good character at the time of the Minister’s decision on the application.
Mr Jiang first arrived in Australia on 9 February 2006. He was granted a subclass VB-885 permanent visa on 7 June 2013. On 13 May 2014 Mr Jiang pleaded guilty in the Melbourne Magistrates’ Court to the following offences:
·knowingly deal with proceeds of crime;
·possessing identification information with an intention to commit or facilitate an offence; and
·dishonestly undertaking or assisting in the retention of stolen goods.
As a consequence of pleading guilty to the above offences, Mr Jiang was fined $4,000 with no conviction recorded.
Mr Jiang lodged his application for conferral of Australian Citizenship four weeks following his conviction.
THE GOOD CHARACTER CONCEPT
The expression good character is not defined in the Act. Accordingly, it must be given its ordinary meaning in the context in which it appears in the Act. The Shorter Oxford English Dictionary states the word character when used in a figurative sense has a variety of meanings including: 1. A feature, trait, characteristic. 2. Essential peculiarity; nature;… 4. Mental or moral constitution… 6. Good repute….
The courts, particularly in criminal cases, have frequently grappled with this concept. So too have courts on appeal from persons denied admission to various professional bodies, including legal practitioners, for want of good character. In Re Davis (1947) 75 CLR 409 the High Court of Australia (Latham CJ, Starke, Dixon, McTiernan and Williams JJ) discussed the concept of character in the context of a barrister who was disbarred by the Court. Mr Davies had been admitted to practice as a barrister in the Supreme Court of New South Wales by the Barristers Admission Board. Following his admission to practice as a barrister, it came to light that he had pleaded guilty to an indictment for breaking, entering and stealing and that he had failed to disclose this fact to the Court, the Board or to the persons from whom he obtained certificates of good fame and character. Latham CJ made the following relevant comments regarding character, at 416:
In determining this question immediately recent and more distant behaviour may be taken into account.… When a question arises in 1947 as to whether a person is a fit and proper person to continue as a barrister it is not irrelevant to consider facts which happened in 1934, 1944, or 1946. Such facts may be most informative as to his character. When a considerable period of time has elapsed past facts should be considered in the light of the lapse of time, and weight should be given to the subsequent behaviour of the person concerned.…
It may be that he had by that time become a person of good fame, i.e., of good reputation among those who then knew him. But intrinsic character is a different matter. A man may be guilty of grave wrongdoing and may subsequently become a man of good character.
Dixon J said, at 426:
The second contention depends in part on the facts of the case and in part upon an argument that whether a man is of good fame and character is a question of his general reputation and not of his moral standards or qualities. This latter argument is quite wrong and comes from a confusion between the rule of criminal evidence allowing an accused to prove his “good character” as part of his defence, and the question whether a man is fit to enter one of the four traditional professions.
An application for a Business (Short Stay) Visa was the subject matter dealt with by the Full Court of the Federal Court (Davies, Lee and RD Nicholson JJ) in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422. The court was concerned with the application of the former s. 180A of the Migration Act 1958 which, relevantly, provided:
(1) The Minister may refuse to grant a visa or an entry permit to a person, or may cancel a valid visa or a valid entry permit that has been granted to a person if:
(a) Subsection (2) applies to the person; or
(b)…
(2) This subsection applies to a person if the Minister:
(a)having regard to:
(i) the person’s past criminal conduct; or
(ii) the person’s general conduct;
is satisfied that the person is not of good character;…
Davies J said, at 425:
It should also be observed that the term “good character” is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute:…
Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, “good character” refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
In concluding, Davies J said, at 427 – 428:
The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ.
Lee J offered the following explanation, at 431 – 432:
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 subjective public opinion:…
Given its broad and difficult to define nature, it should not come as a surprise that the Minister has set out a number of guidelines for Department Staff to assist in applying the good character requirement. These are located in Chapter 10 of the Australian Citizenship Instructions (the Instructions). While these instructions do not form part of the law on this subject, nevertheless, by following the guidelines, all applicants should receive equal treatment by departmental officers. Furthermore, there is no reason why this Tribunal should not adopt those guidelines providing that unfairness does not result to a particular applicant. In fact, the introduction to Chapter 10 states:
It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are “satisfied”, on a reasoned basis, that an applicant is, or is not, of good character.
The overview to Chapter 10 provides the following useful summary:
‘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.…
Citizenship character decision-making framework:
a. check all relevant sources of information…,
b. characterise the nature of any offence (serious/minor; victims; pattern of behaviour/one off; length of sentence; sentencing remarks etc)…
c. consider any relevant associations…
d. consider general conduct…
e. consider mitigating circumstances (length of time since offence, age at time of offence, behaviour since completing prison sentence or obligations to court, remorse, referee reports, etc)…
f. …
g. weigh up relevant factors, applying community standards, to decide whether or not the applicant is of good character. Look holistically at applicant’s behaviour over an enduring period of time…
h. ….
The Instructions state that the phrase enduring moral qualities encompasses the following concepts:
·characteristics which have been demonstrated over a very long period of time;
·distinguishing right from wrong;
·behaving in an ethical manner, conforming to the rules and values of Australian society.
MR JIANG’S OFFENDING CONDUCT
In February 2014 Mr Jiang gave a detailed statement to the police regarding the fraudulent operations of Mr Chris Dawn-Manuel. Its purpose was to assist the police in their prosecution of Mr Dawn-Manuel and another accomplice, Mr Nguyen. It is instructive to set out some of the important matters he told the police because the witness statement he provided for the purposes of the hearing of his review in the Tribunal is, in a number of respects, significantly different.
According to the sentencing remarks by her Honour Judge Gaynor of the County Court of Victoria in DPP v Dawn-Manuel [2014] VCC 1810 (21 October 2014), Mr Dawn-Manuel pleaded guilty to three charges of obtaining a financial advantage by deception, three charges of attempting to obtain a financial advantage by deception and one charge of possession of identification information. According to Judge Gaynor, during 2012 to 2013 Mr Dawn-Manuel established an identity fraud operation in which he obtained identification information, including Optus mobile phone application contracts, containing information such as the name, address and employment details and telephone numbers of various people. He used that information to apply for credit cards online through GE Capital Finance, the National Australia Bank and the ANZ. He would create a fictitious email address using the name of the fictitious applicant and the details of their address, date of birth, employment and telephone number that he had previously obtained.
Mr Dawn-Manuel then purchased pre-paid SIM cards registering the applicant’s details with the service provider and putting this telephone number in the credit card application. He also put postal addresses in the credit card application which were addresses of vacant premises sourced by searching realestate.com and other websites. When an application was approved, Mr Dawn-Manuel was notified by the bank via the prepaid mobile telephone number he had attached to the application. The credit provider would post the credit card and PIN number separately to the postal address provided. Mr Dawn-Manuel then attended the vacant rental property to collect the credit cards and PIN numbers. In all, Mr Dawn-Manuel obtained 45 credit cards with a total combined value of $660,500 and attempted to obtain 59 further credit cards with a total combined value of $858,999.
In order to conduct his fraud, Mr Dawn-Manuel needed to obtain credit cards from various credit providers and in order to obtain those, he needed identification in the form of driver licences.
In the statement Mr Jiang provided to police, he said that at the end of 2011 Mr Dawn-Manuel told him he had found a way to get credit cards from GE Money. Mr Dawn-Manuel told Mr Jiang that he was making $25,000 per week. That was because GE Money had no way of prevention (by which I understood Mr Jiang to be saying that it could not detect the fraud) because when an application was made for a credit card with accompanying ID, it would be approved in due course. Mr Jiang also told the police that on 6 September 2011 he went to China for three months. However, his statutory declaration seems to indicate that he came back from China in September 2013. Mr Jiang either went to China in 2011 and 2013 or one or other of the statements is incorrect.
Mr Jiang told police that Mr Dawn-Manuel had someone sell him personal identification details (presumably false identities or stolen identities). At one point in time, which was not identified, Mr Jiang said Mr Dawn-Manuel asked him to contact a person who could provide him with identification details. He said: I knew where the guy lived, he lived in Caulfield I think he is doing some fraud as well. Mr Jiang said that Mr Dawn-Manuel gave him $10,000 to purchase driver licences which he took to the person producing those false IDs and purchased them, taking them home and putting them in his garage.
Mr Jiang also explained to the police how Mr Dawn-Manuel would have credit cards sent to vacant properties, having obtained addresses for those properties from the Internet. Mr Jiang said that several times when he was with Mr Dawn-Manuel for other things they would drive to some of those vacant properties where Mr Dawn-Manuel would get the mail from the property’s letterbox. Mr Dawn-Manuel would then bring that mail back to the car and sometimes open the letters, allowing Mr Jiang to see him remove credit cards or letters indicating that credit had been granted. Although Mr Jiang said he never did get out of the car to check the letterboxes, he was aware of Mr Dawn-Manuel doing this on many occasions. He also explained that Mr Dawn-Manuel would go back and collect the password or pin number attached to the credit cards on a later day.
Mr Jiang also told police that once Mr Dawn-Manuel had the credit cards, he would contact a person and get them to make driver licences for him, corresponding with those credit cards. When Mr Dawn-Manuel had the driver licences together with the credit cards, he would organise other accomplices to shop for goods which were then returned to him and which he on sold.
Mr Jiang was plainly aware of the fraudulent operation conducted by Mr Dawn-Manuel well before the operation was uncovered by the police. He told police that he knew Mr Dawn-Manuel would hide driver licences, credit cards, money, cell phones and letters connected to the fraud. He hid them in ducted heating vents. On one occasion, Mr Dawn-Manuel asked Mr Jiang to try and find where he stored his money. He said he searched the room and couldn’t find anything. Mr Dawn-Manuel then pulled the heating duct from the floor and showed Mr Jiang what was inside.
In a statutory declaration made by Mr Jiang on about 12 August 2014 for the purposes of his application to the Tribunal, he explained that he was managing a petrol station and Mr Dawn-Manuel worked there. In fact in his oral evidence he said that he went into the petrol station business together with Mr Dawn-Manuel, each putting in $50,000 to buy the business. Apparently the service station had trailers which were available for hire by persons needing them. In his statutory declaration, Mr Jiang said that he found out Mr Dawn-Manuel was collecting customer driver licence information from persons hiring trailers and using that information to apply for credit cards. He said he was scared and stopped Mr Dawn-Manuel from working at the service station. Apparently the police interviewed Mr Dawn-Manuel about that but due to lack of evidence, he was not charged. There was a paper shredder at the service station. In his statutory declaration Mr Jiang said that Mr Dawn-Manuel asked him to destroy what he described as dead credit cards (those cards which had been blocked by the provider) and he left some on his desk and the rest in a tea box which was also on his desk. This information does not appear on his statement made to the police. In fact Mr Jiang simply said that when he got back from China in 2011, he started working at the petrol station.
In his statement to the police Mr Jiang said that some time before September 2013 Mr Dawn-Manuel said to him that he had a pile of credit cards and drivers licences with a rubber band around them. Mr Dawn-Manuel asked him if he could shred those for him at the petrol station. Mr Jiang said that after collecting the cards, he put them in a plastic bag and took them to his house. On another occasion, Mr Dawn-Manuel dropped off another bundle of credit cards and driver licences at his house. Apparently Mr Dawn-Manuel told Mr Jiang that it was too dangerous to keep them in a box in his room and that he needed to shred them straight away. Mr Jiang said he then forgot about the credit cards as the petrol station was closed. He left them at home.
In his statutory declaration Mr Jiang said that he and Mr Dawn-Manuel jointly purchased a massage shop in June 2013, each paying $30,000. He said that the shop had to be closed in September 2013 because Mr Dawn-Manuel had been arrested. In his statement to the police, he appears to have said that the massage shop was purchased in July 2013. Mr Jiang also told the police that Mr Dawn-Manuel told him that he was on a student visa and he couldn’t purchase the business in his own right and therefore needed to find a partner. He also said he thought that Mr Dawn-Manuel’s visa had expired. Despite that, they jointly purchased the business.
Mr Jiang was also aware and told police that Mr Dawn-Manuel had married on two occasions, the purpose of the first marriage being to apparently obtain permanent residency. He also said that the second marriage occurred in about August 2011 and that he was a witness to that marriage. He was aware that the second woman lived about one hour away from where Mr Dawn-Manuel lived but he put some of the bills where he was staying at that time under her name even though she did not live there. He said that before he went overseas in September 2011, he signed an immigration form supporting Mr Dawn-Manuel’s application for residency and witnessing that Mr Dawn-Manuel and the second woman he married knew each other for more than one year.
The witness statement Mr Jiang provided to the Tribunal on the hearing of this application was a significantly sanitised version of what he had previously stated in his statutory declaration and told the police in an interview when they arrested Mr Dawn-Manuel and his accomplices. In his witness statement made on 20 April 2015, Mr Jiang said that in September 2011 he went back to China for three months and trusted Mr Dawn-Manuel to look after the petrol station. He said that when he returned he found out that Mr Dawn-Manuel was engaging in fraudulent activity with credit cards. He said he dismissed Mr Dawn-Manuel immediately once he found out as he did not want to be involved in such activities. He also said he regretted not going further and disassociating himself from Mr Dawn-Manuel but was convinced by him that he would reform. However, that does not explain his subsequent conduct in 2012 and 2013 where he appears to have been complicit in the fraud by assisting Mr Dawn-Manuel obtain false driver licences and fraudulently obtain credit cards. Furthermore, he subsequently purchased a massage shop jointly with Mr Dawn-Manuel.
DOES MR JIANG PASS THE CHARACTER TEST?
Mr Robert Chen, a migration agent who appeared on behalf of Mr Jiang, submitted that Mr Jiang had not committed a serious offence and that his offending should be considered minor. He referred to clause 10.5.2 of the Instructions which states that offences which do not lead to a conviction or sentence fall into the minor offences category. Be that as it may, it cannot be disputed that Mr Jiang was charged and pleaded guilty to the offences I have outlined above. For those offences, he was fined $4,000 even though a conviction was not recorded. The Magistrates’ Court has discretion whether or not a conviction is recorded (see Sentencing Act 1991 (Vic) s. 8). In exercising the discretion, a court must have regard to the nature of the offence; the character and past history of the offender; and the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects.
Regardless, the Instructions describe minor offences as those offences which do not lead to a conviction or a sentence. The imposition of a fine of $4,000 is plainly a sentence despite a conviction not having been recorded. The fact that the Instructions refer to a conviction or a sentence in a disjunctive sense makes it reasonably clear that where a sentence is imposed, as in this case, the offence cannot be regarded as minor.
However, what is disturbing in this case is that Mr Jiang was not only aware of Mr Dawn-Manuel’s offending for about two years prior to being arrested, but, contrary to his evidence before me, he actively participated in assisting Mr Dawn-Manuel in his fraudulent enterprise, albeit in a relatively minor way, but nevertheless, knowing that the conduct was unlawful. Furthermore, rather than immediately disassociate himself from Mr Dawn-Manuel when he became aware of his unlawful conduct, Mr Jiang assisted him and in fact entered into two further business enterprises, albeit lawful, jointly with him.
Although Mr Jiang said in his witness statement that he now understood that he needed to be more careful in associating with persons such as Mr Dawn-Manuel, I am seriously concerned that this statement has been made in an attempt to demonstrate remorse and that he is now a changed character. Furthermore, although not entirely clear, it appears that Mr Jiang was aware that the purported marriage between Mr Dawn-Manuel and a woman referred to as Joeline was contrived for the purpose of gaining permanent residency for Mr Dawn-Manuel. In any event, he assisted Mr Dawn-Manuel by signing an immigration form supporting his application simply on the basis of what Mr Dawn-Manuel told him.
Mr Jiang’s behaviour between 2011 and 2013 is not that of a person with enduring moral qualities. Although aware of Mr Dawn-Manuel’s unlawful and fraudulent conduct for the best part of two years, Mr Jiang did nothing to disassociate himself from Mr Dawn-Manuel until his arrest in September 2013. In fact, for a mis-placed notion of loyalty to Mr Dawn-Manuel because he assisted him in passing the English test, Mr Jiang not only failed to disassociate himself from Mr Dawn-Manuel but in fact knowingly assisted him in conducting his fraudulent activities. This went on for some two years until Mr Dawn-Manuel’s arrest. He was also prepared to assist Mr Dawn-Manuel in obtaining permanent residency when he was aware that the marriage Mr Dawn-Manuel had entered into with Joeline was not in fact a real marriage but rather simply a marriage of convenience. This behaviour does not demonstrate his ability to distinguish right from wrong or his capacity to behave in an ethical manner, conforming to the rules and values of Australian society.
Having said the above, I have taken into account statements and evidence given in support of Mr Jiang’s character. In particular, he has recently married Ms Wen, a woman who has known him for about three years. She gave evidence in support of Mr Jiang, stating she was aware of his past and that he had not changed, he was always a good man. She explained that she was a professional, a financial accountant, and held a high ethical standard. She accepted that everybody made some mistakes. She said he had learned his lesson. They held joint bank accounts and joint credit cards and she said she trusted him implicitly. Ms Wen said she only became aware of the fraud committed by Mr Dawn-Manuel following his arrest. She did not know there were any problems in 2011.
I also had in evidence a statement described as a reference letter from Mr Emad Moannes who is Mr Jiang’s current employer. Mr Moannes described Mr Jiang as hard-working and a person who conducts himself with integrity. He had no issue with Mr Jiang opening and closing the cashier tills at the business and handling customer payments using credit card details. Although not stated in his reference letter, in cross-examination Mr Moannes said he was aware of Mr Jiang’s past criminal offending. He said he became aware of the offending in about January 2015. He seemed to be aware that credit cards were found in Mr Jiang’s room by the police but it is not clear that he was aware of the extent of Mr Jiang’s involvement with Mr Dawn-Manuel.
I also received oral evidence from Ms Li, who described herself as a friend of Ms Wen. She said that she heard about Mr Jiang’s criminal offending from his wife. She did not know the details of his involvement but knew that a friend of Mr Jiang had committed offences which involved dealing with credit cards. Ms Li said she thought Mr Jiang had reformed and was now a responsible family man.
The problem in this case for Mr Jiang is that a relatively short period of time has passed since his offending. Section 21(2) of the Act makes it clear that a person must be of good character at the time of the Minister’s decision on the application. That time was
1 December 2014. Given the words used in s. 21(2) of the Act, one might, at first glance, consider that further evidentiary material cannot be considered by the Tribunal unless it bears on the circumstances as they existed at the time of the original decision. However, given the High Court of Australia decision of the plurality in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, that view is probably incorrect. The view appears to be based essentially on the proposition that the administrative decision making process is a continuum and that this Tribunal makes its decision based on the material which is placed before it rather than the material which was before the original decision maker. Hayne and Heydon JJ said, at 315:
Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.
In her reasons for decision, Kiefel J indicated that the starting point was that the Tribunal must address the same question as the original decision maker was required to address (at 327). Her Honour agreed that the Tribunal was entitled to take into account all the facts placed before it (at 328). However, she then made this very important point, at 329:
The Tribunal does not acquire all the powers of the Authority, but only those necessary to review the decision made by it (168).
The case to which her Honour referred was the Full Court of the Federal Court of Australia decision in Fletcher v Federal Commission of Taxation (1988) 19 FCR 442 at 452.
The question for the Tribunal in Shi’s case was whether the migration agent had breached the Code of Conduct. Her Honour also said at 329:
That part of the decision which comprises the finding, that the ground in para (h) had been made out, was referable to conduct which had occurred to a point in time. That is the nature of the finding required by the provision. It follows that the Tribunal was restricted to a consideration of events to that point and not those occurring later, in determining for itself whether there had been non-compliance with the Code. The appellant accepted as much in his submissions.
This becomes a difficult issue to resolve where there has been a significant passage of time following the Minister’s decision in respect of an application for Citizenship, and the applicant claims he is now a reformed person and of good character. While there has been some passage of time in this matter, and I have taken into evidence statements from persons who now claim that Mr Jiang has reformed, assuming that evidence is relevant to my consideration of the Minister’s decision which was made without the benefit of that information or the benefit of the passage of time, it does not affect my decision.
Latham CJ in Re Davis referred to a submission by the appellant to the effect that his good behaviour for a period of some 12 years following the commission of a grave criminal offence was evidence that he had redeemed himself. His Honour said, at 416 – 417:
It may be that he had by that time become a person of good fame, i.e., of good reputation among those who then knew him. But intrinsic character is a different matter. A man may be guilty of grave wrongdoing and may subsequently become a man of good character. If the appellant had frankly disclosed to the Board and to the two solicitors the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But his failure to make such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good character.
The essence of what Latham CJ said about a person reforming his or her character is that subsequent disclosure and admission of the extent and seriousness of the person’s wrongdoing appears to be essential, regardless of the embarrassment or discomfort that it may cause the person, to demonstrate a reformed character.
The notion of full and frank disclosure was at the forefront of Gillard J’s decision in Frugtniet v Board of Examiners [2005] VSC 332 (24 August 2005), which was Mr Frugtniet’s second application to be admitted to practice as a barrister and solicitor in Victoria. Again, while I accept that the principal issue in that case revolved around whether Mr Frugtniet was a fit and proper person to be admitted to practise, the notion of good character was essential to that finding. Gillard J referred to the decision of Moffitt P in Re B [1981] 2 NSWLR 372 at 381 and said, at [31] (emphasis in original):
His Honour then made an observation which in my opinion is clearly correct and based upon one’s experience of life. His Honour said:
“Character does not change readily and an applicant for admission… may have some difficulty in persuading a court that his past character or a past outlook manifested by conduct or the profession of ideas which were incompatible with being a barrister, have changed.” (Emphasis added.)
Gillard J went on to say, at [70]:
The appellant has to frankly and candidly state the level of his dishonesty in the past, and not seek to hide it. He must show that it will not re-occur. Unfortunately he has not demonstrated any of these matters to the Court. Indeed, he is one of those witnesses who, when asked a question, thinks how he should answer the question rather than answering it truthfully and accurately. It will take, in my view, many years of blameless conduct before one could have any confidence that the appellant has shed his past, turned over a new leaf and intends to pursue a blameless and honest career.
While I do not for one moment suggest that Mr Jiang’s conduct falls into the same category as that of Mr Frugtniet, the principle stated by Gillard J regarding a reformed character remains valid. The difficulty for Mr Jiang is that only a short period of time has elapsed since his wrongdoing. At most, it is about two years. In my opinion, that is insufficient time to establish that Mr Jiang is a reformed character for the purposes of a grant of Citizenship. Furthermore, his evidence before me, both his written statements and his oral evidence, show a reluctance to disclose the full extent of his involvement in Mr Dawn-Manuel’s fraudulent conduct. In fact, to a degree, he was concerned to excuse his offending conduct by emphasising that no conviction had been recorded and that he had pleaded guilty at the earliest possible time and assisted the police in their conviction of Mr Dawn-Manuel. He also said that Mr Dawn-Manuel was his best friend and he had assisted him in passing the English test which is essential for the grant of Citizenship. The problem for Mr Jiang is that he did not disclose Mr Dawn-Manuel’s wrongdoing to the police until after they had discovered his fraudulent conduct. One might be forgiven for stating that Mr Jiang’s subsequent disclosure to the police was not for the purpose of accepting his wrongdoing, but rather to ensure the lightest possible sentence in an inevitable outcome when the matter went to court.
As far as current evidence of his good character is concerned, while that was given with the knowledge of his prior offending, those witnesses only had a very general understanding of his involvement in Mr Dawn-Manuel’s fraud. While I have no doubt that Mr Jiang is intent now on redeeming his character, it will take considerably more time before a decision maker can be comfortable in finding he is a person of good character.
CONCLUSION
I find that Mr Jiang does not meet the eligibility requirement for the conferral of Australian Citizenship set out in s. 21(2)(h) of the Act. Accordingly, I find the decision made by a delegate of the Minister on 1 December 2014 refusing his application for the conferral of Australian Citizenship was correct. I affirm that decision.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member .............................[sgd]...........................................
Associate
Dated 14 August 2015
Date of hearing 24 July 2015 Advocate for the Applicant Mr R Chen Solicitors for the Respondent Clayton Utz
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