Jiang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

[2021] AATA 417

Jiang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 417 (8 March 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1196

Re:Dingtao Jiang

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:8 March 2021

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – refusal of a Citizenship application – whether the applicant is of good character at the time of the Minister’s decision – criminal conduct – cultivation of commercial quantities of cannabis – serious and repeat nature of offending – mitigating factors – failure to demonstrate genuine remorse or insight into offending – not satisfied the applicant is of good character – decision affirmed 

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24 and 52

CASES

Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

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

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship Policy Statement

Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member A Poljak

8 March 2021

1. Mr Dingtao Jiang, the applicant, is a citizen of China. He first entered Australia on 1 July 2006 on a Partner (Provisional)(Class UF)(subclass 309) visa, which was granted offshore on 20 March 2006. The applicant currently holds a Return (Residence)(Class BB)(subclass 155) visa granted offshore on 16 September 2016.

2. On 12 December 2017, the applicant lodged an application for Australian Citizenship by conferral (“Citizenship application”) under section 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”). He had previously applied for Australian citizenship in 2015, however that application was refused as he did not meet the residency requirements.

3. On 5 December 2019, the applicant was invited to comment on adverse information before the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”). The applicant’s representative responded to the invitation to comment and provided additional evidence in support of the representations made. On 5 February 2020, the applicant’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be satisfied that the applicant was of good character for the purposes of subsection 24(1A) and paragraph 21(2)(h) of the Act (“the decision”). This is the decision under review in these proceedings.

4. The issue for the Tribunal to determine in these proceedings is whether it is satisfied that the applicant is of good character in accordance with paragraph 21(2)(h) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

5. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

6. Subsection 24(1) of that Act provides that 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. Paragraph 52(1)(b) permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve a person becoming an Australian citizen.

7. The Act relevantly provides, at paragraph 21(2)(h), that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application.’

   DEFINITION OF ‘GOOD CHARACTER’

8. The term ‘good character’ is not defined in the Act. Guidance can be found in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (“CPI 15”) and the Australian Citizenship Policy Statement, which came into force as of 27 November 2020 (“the Policy”).

9. The role of the Policy and CPI 15 is to offer guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Policy and CPI 15, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

10. As to the definition of good character, the CPI 15 cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 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 of subjective public opinion…

11. The CPI 15 states the phrase ‘enduring moral qualities’ which encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

12. The CPI 15 sets out a non-exhaustive list of characteristics of good character. Relevantly, a person of good character would, inter alia: respect and abide by the law in Australia, be honest and financially responsible (for example, pay their taxes), not cause harm to others through conduct, not be involved in illegal drugs, not associate with persons who are involved in criminal behaviour and be truthful and not practice deception or fraud in dealing with the Australian government.

13. In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of good character in citizenship applications:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

    [emphasis added]

14. The principles in the CPI 15 should be considered in light of the facts of the particular case and should not be applied rigidly or inflexibly. The Tribunal must exercise any statutory discretion bearing in mind the facts of any particular case. The CPI 15 provides that it is also necessary to consider any other information that is relevant to a person’s character and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.

    THE APPLICANT’S CRIMINAL CONDUCT

15. The applicant has been convicted of two similar offences in relation to the cultivation of commercial quantities of cannabis.

16. On 9 June 2010, the applicant was convicted in the Burwood Local Court of 'Conceal serious indicatable offence of another person' and was sentenced to a two-year good behaviour bond (“first offence”). As the good behaviour bond commenced on 9 June 2010, it is taken to have expired on 8 June 2012.

17. According to the Agreed Facts on Sentence, the applicant and two co-offenders were observed by police to enter premises in Burwood, NSW. When the applicant and the two co-offenders emerged from the premises sometime later, they were arrested by police. Police executed a search warrant on the premises and uncovered that the premises 'had been converted to indoor growing rooms containing 157 cannabis plants which were being grown with the use of plants nutrients and high pressure sodium lighting'. One of the co-offenders was charged with a serious indicatable offence, being 'cultivate by enhanced indoor means a commercial number of prohibited plants'. The applicant ‘knew [the co-offender] had committed this offence and [the applicant] had information that was of material assistance in securing the prosecution of [the co-offender], but he failed without reasonable excuse to bring that information to the attention of a member of the Police Force’. He was subsequently charged with concealing that offence.

18. On 1 August 2013, the applicant was convicted in the District Court of NSW (“District Court”) of 'Cultivate prohibited plant more than or equal to commercial quantity' for which he was sentenced to three years imprisonment, commencing on 7 September 2012 and concluding on 6 September 2015 (“second offence”). On sentencing, the District Court also considered the applicant's charge of 'Supply cannabis more than indictable and less than commercial quantity’.

19. The second offence occurred on 7 September 2012, 91 days after the expiry of the good behaviour bond in relation to the first offence. According to the police facts sheet, police and the fire brigade responded to a fire at premises in NSW. After the fire was extinguished, police searched the premises and located '109 cannabis plants and a full and well maintained Hydroponic set up including numerous heat lamps and large ventilation systems'. Later that day, the applicant was observed by police to stop outside the premises in his vehicle, and when identified by police, he 'accelerated the vehicle away from the premises' before being blocked by police and arrested. ‘Inside the motor vehicle was a light globe matching those that were inside the premises and there was also fertiliser… During the execution of the crime scene warrant police seized two large green [garbage] bags from room two of the premises, the bags contained what appeared to be large amounts of cannabis leaf’. Police estimated the 109 cannabis plants to have an estimated street value of around $545,000. ‘The two large garbage bags of cannabis leaf were conveyed to the Department of Analytical Laboratories where expert examination shows that there was 9.059 kilograms of cannabis leaf inside the two large garbage bags’.

20. On return to the police station, police seized two mobile phones from the applicant, one of which contained a 'number of images of books or DVDs on how to grow and cultivate marijuana'. The applicant reportedly ‘conceded it was he who put these images on his mobile phone as he found them interesting’. The applicant ‘made similar comment on the plant fertilizer, electricity safety switches and electricity power boards, stating he just found them interesting’. During a police interview, the applicant admitted to having committed the offence, but then at the end of the interview, stated 'I did not mean that, it was a slip of the tongue'.

21. The applicant subsequently pleaded guilty to the offence.

22. The applicant was released on parole on 6 September 2013; and his parole conditions expired on 6 September 2015.

    MITIGATING FACTORS

23. The applicant is married and has two young sons. All of whom are Australian citizens. The applicant claims that his family is one of his motivations to work hard and contribute to the future of Australia. The applicant now runs his own business and pays taxes.

24. In his statutory declaration declared 12 December 2017, the applicant said at [11] to [13]:

    11. I believe I have conducted myself as a person of good character in the last four years. I am proud to say that I believe my behaviour is consistent with the standards of a good Australian citizen.

    12. I reflected deeply during my time in prison. Upon my release, I sought divine atonement for my sins and was lucky to have found God through joining a Campsie Chinese Congressional Church. I now represent myself as a proud Christian.

    13. My faith in God has realigned my morals, values and beliefs in conformity with that of the Australian society and the Australian way of life…

25. At hearing, the applicant said he regretted his actions and ‘didn’t want to think about the past’. As he was taken through the facts of each offence, the applicant appeared to deny his involvement. Regarding the first offence, the applicant explained that he was at the premises to install gyprock for renovations. He said he did not notice the plants in the house and said, he ‘didn’t know it was illegal until arrested and police told me’. The applicant said that his gambling addiction contributed to his offending conduct as he owed money and he needed to do what he could to repay the debt. When further questioned about his role in the offences, the applicant said he just watered the plants. He said he ‘will not do any more illegal things ever again’ and that his wife would leave him and take the kids if he offends again. He said his gambling debt still exists, but no one is chasing him for the money since his arrest and imprisonment. The applicant said that he sought some treatment for his gambling addiction but had no supporting evidence. In prison he said he did a lot of physical activity and learnt English. Regarding the numerous witness statements, the applicant advised that he ‘did not tell them everything’ and conceded that they were not aware of his criminal history.

26. The applicant has provided several character references in support of his citizenship application and for these proceedings. All the references speak well of the applicant’s character and most speak to his devotion to his family. However, none of the references mention the applicant’s criminal offending or how they have considered his past conduct in assessing his good character.

    CONSIDERATION

27. The applicant appears to have played a key role in the second offence, given he appears to have been solely responsible for the set-up, maintenance and harvesting of the system and was involved in the supply of drugs into the community; both offences involved significant quantities of cannabis, with the street value of the cannabis plants in the second offence estimated at approximately $545,000 and a volume of 9.059 kilograms of cannabis leaf was seized inside two large garbage bags. The seriousness of crimes associated with drug supply, as well as the significant harm it inflicts on the Australian community, is exacerbated due to the large quantity of drugs involved in the applicant's offences.

28. The applicant also demonstrated serious dishonesty in relation to both the first and second offence. He concealed evidence from police that was of material assistance in securing the prosecution of his co-offender, and he attempted to flee from police when identified in relation to the second offence.

29. The seriousness of the applicant’s criminal offending is also reinforced by the significant term of imprisonment imposed on the applicant in relation to the second offence. A term of imprisonment is the last resort in the sentencing hierarchy and in this instance, the applicant was sentenced to a term of imprisonment of three years.  

30. The applicant’s parole conditions expired on 6 September 2015. Given the serious and repeat nature of the applicant’s offending I am also not convinced that enough time had elapsed since the applicant's obligation to the court ceased to establish a pattern of good behaviour.

31. I give limited weight to the character references provided by the applicant as they failed to acknowledge the applicant's criminal record.

32. In submissions before the District Court for the second offence, the applicant claimed that his gambling addiction contributed to his offending. The applicant has not provided any evidence of any treatment he has undertaken to aid his rehabilitation, such as undertaking counselling or participating in supervised programs while incarcerated. In particular, the applicant has not provided any evidence that he has obtained treatment to address his gambling addiction. As such, I am unable to make any positive findings about his rehabilitation.

33. In his evidence before the Tribunal, the applicant failed to demonstrate genuine remorse or insight into his offending, including any statements which express regret, explain the nature of his offences, or provide evidence of any extenuating circumstances surrounding his role in the conduct.

    DECISION

34. In considering all the relevant circumstances and weighing the available evidence before me, I am not persuaded to make a positive finding of good character for the applicant at this time. It follows that he does not satisfy paragraph 21(2)(h) of the Act.

35. The applicant can make a fresh application for Australian citizenship in the future.

36. The decision under review is affirmed.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 8 March 2021

Date(s) of hearing:	14 September 2020
Advocate for the Applicant:	Mr H Huang, Pricilla International Co
Solicitors for the Respondent:	Mr H McLaurin, Minter Ellison