KQSS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 3309
•31 August 2020
KQSS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 3309 (31 August 2020)
Division:GENERAL DIVISION
File Number(s): 2019/3443
Re:KQSS
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:31 August 2020
Place:Sydney
The decision under review is affirmed.
................................[sgd]................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for Australian citizenship by conferral – refusal of citizenship application – whether Applicant has satisfied section 21(2)(h) – good character requirement – Citizenship Policy – meaning of ‘good character’ – enduring moral qualities – presence in Australia as an unlawful non-citizen – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 23A, 26, 27
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Britos and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1282
Chen and Minister for Immigration and Citizenship [2007] AATA 1815
Choi and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 879
DCXT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1503
Dinkha and Minister for Home Affairs (Migration) [2018] AATA 3037
Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Haeri and Minister for Immigration and Citizenship [2009] AATA 422
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Mabagos and Minister for Home Affairs (Citizenship) [2019] AATA 216
Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033
Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608
Sui and Minister for Immigration and Citizenship [2008] AATA 1062
Wang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1924
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016
REASONS FOR DECISION
Chris Puplick AM, Senior Member
31 August 2020
BACKGROUND
KQSS (Applicant) has applied to the Administrative Appeals Tribunal (AAT) for a review of a decision of a delegate of the Minister (Respondent) to refuse his application for citizenship by conferral (refusal decision) under the provisions of the Australian Citizenship Act 2007 (Cth) (Act).
The application for citizenship was made on 24 April 2017, the refusal decision was made on 27 May 2019 and the application to this Tribunal for review was made on 15 June 2019.
The application was heard on 21 July 2020 with all parties participating through the Microsoft Teams platform due to the arrangements in place at the Tribunal during the COVID-19 restrictions. An Arabic language interpreter was available during the proceedings but, in the event, the Applicant did not require the use of her services.
CITIZENSHIP BY CONFERRAL
The Act provides that a person may acquire citizenship by conferral provided that they satisfy the requirements set out in the Act. An applicant must establish their eligibility for citizenship under subsection 21(2) of the Act, which includes sitting and passing the “citizenship test” (sections 21(2A) and 23A) and, on approval of Australian citizenship, an applicant must make the pledge of commitment (sections 26 and 27).
Subsection 21(2) sets out the eligibility criteria as follows:
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister's decision on the application.
All of the criteria must be met before the Minister is able to approve the grant of citizenship.
It is agreed by the parties that the Applicant meets all of the criteria listed from paragraphs 21(2)(a) to (g), inclusive.[1] It is also agreed that the Applicant does not have a criminal record or any matters included on his National Criminal History Check or National Police Certificate.[2]
[1] Section 37 Tribunal documents (T documents) at 13-19.
[2] Applicant’s National Criminal History Check dated 30 October 2018; Applicant’s National Police Certificate dated 4 December 2019.
The sole basis for the refusal is the Respondent’s finding that the Applicant does not meet the “good character” requirement in paragraph 21(2)(h).
The basis for this finding is that, for four distinct periods of time, the Applicant was present in Australia as an unlawful non-citizen. That is, he was present in Australia without holding a valid visa.
APPLICANT’S VISA HISTORY
The Applicant’s visa history is extensive and is set out in detail in the Respondent’s statement of facts, issues and contentions dated 19 June 2020 (Respondent’s SFIC). Fortunately, it may be summarised briefly and, in relation to the periods of unlawful presence in Australia, the Applicant does not dispute the findings of the Respondent.
The Applicant was born in 1982 and first arrived in Australia in 2003 as the holder of a Student (subclass TU-572) visa. From that date he held a variety of visas until March 2015 when he was granted a Protection visa (subclass XA-866).[3]
[3] The Protection visa application was initially refused by the Department but granted after reconsideration by the Department following a review of this decision by the Refugee Review Tribunal.
Prior to obtaining a Protection visa the Applicant was the holder of 2 Student (subclass TU-572) visas; 2 Higher Education Sector (subclass TU-573) visas; 2 Bridging (subclass 010) visa As; and 8 Bridging (subclass 050) visa Es.
His current status is as the holder of a permanent visa. He currently also holds citizenship of Lebanon.
Before turning to discuss the periods of time in which the Applicant remained unlawfully in Australia, the Tribunal notes that the summary of dates included in the Respondent’s SFIC, particularly at paragraph 17, has caused some confusion for the Tribunal. They do not appear to accord with the dates stated in entries from the Department’s case management system, filed as part of the Respondent’s Additional Material, showing when the Applicant applied for and was granted various visas, and the dates to which these visas had “effect until”. For some calculations of the Applicant’s periods of unlawful presence in Australia, the Respondent’s SFIC counts the dates on which the Applicant was granted various visas and the dates on which various visas had effect until. For other calculations, these dates are excluded and the Applicant is treated as having been lawfully present in Australia on those dates.
The delegate’s refusal decision, to which the Respondent’s SFIC refers,[4] adopted the latter approach in calculating the Applicant’s periods of unlawfulness by excluding the dates on which the Applicant was granted visas and the dates on which his visas had effect until.[5] The Tribunal has taken this latter approach to be more accurate. It would have been helpful, however, if the Tribunal could have relied on the Respondent’s SFIC in this regard.
[4] Respondent’s statement of facts, issues and contentions dated 19 June 2020 (Respondent’s SFIC) at [1].
[5] T documents at 15.
Between the expiry of one of his visas and the granting of another, the Applicant was without a visa (and hence was an unlawful non-citizen in Australia) for the following periods:
(a)16 March 2007 to 27 June 2007[6] (3 months and 12 days)
(b)13 July 2007 to 27 August 2007[7] (46 days)
(c)14 September 2007 to 26 February 2008[8] (5 months and 13 days)
(d)4 June 2009 to 23 April 2013[9] (3 years, 10 months and 20 days).[10]
[6] Respondent’s Additional Material at 54 and 55.
[7] Ibid 53 and 54.
[8] Respondent’s Additional Material at 51 and 52.
[9] Ibid 49 and 50.
[10] Ibid 46.
After the first three periods of unlawful presence in Australia the Applicant had applied for a Student (subclass TU-572) visa on 26 February 2008 which was refused on 29 February 2008. However, he was granted a Bridging (subclass 050) visa E on 27 February 2008 while this matter was subject to a review by the Migration Review Tribunal (MRT). This Bridging visa E expired on 3 October 2008. As the application for review before the MRT was still under consideration at that time, his Bridging visa was subsequently extended until 3 June 2009. The MRT upheld the Student visa refusal decision on 24 April 2009.
During the final period in which the Applicant remained unlawfully in Australia he applied for a Protection (class XA) visa on 8 April 2013, which was initially refused on 15 November 2013 but granted after a Refugee Review Tribunal (RRT) review on 20 May 2014 and reconsideration by the Department in March 2015.
APPLICANT’S STATEMENTS ABOUT HIS STATUS
In his statutory declarations dated 12 December 2019 and 14 May 2020 the Applicant writes:
I came to Australia on a student visa. I am from Lebanon. I admit that I was unlawful during the periods of 16th of March 2007 till 27th of June 2007 and again from 4th of June 2009 till 23rd of April 2013.[11]
[11] Applicant’s statutory declaration dated 12 December 2019 at [2]; Applicant’s statutory declaration dated 14 May 2020 at [2].
While these statutory declarations do not contain any reference to the two other periods listed above, during the course of his submissions to, and cross-examination at, the Tribunal hearing, the Applicant accepted without demur that he had also been “unlawful” during those other two periods, he apologised for that fact and indicated he was regretful that he had breached immigration requirements.
As the Applicant has set out in his statutory declaration his reasons for his remaining in Australia without a visa, the Tribunal believes it would be better to let him speak for himself rather than to paraphrase his reasons. The relevant parts of his statutory declaration are:
During the first period, in 2007 as I reached the immigration to extend my visa as a student. I was stunned that my visa had expired for a period more than 28 days. I was told by the desk operator that there was nothing I can do. Being unmatured at that time I took the word as it is. Not being fairly advised; I felt it was the end of the world. Anxiety was now tearing me apart, I was afraid to speak to anyone about the matter. After a year and a half in 2009, I was introduced a volunteer who help people having trouble with their visas Mr [TL]. He was a gentle man who offered me advice. I willingly chosen to apply for the minister to give me a second chance. My application was refused because of the period of time that past. I worked hard to get his approval. I studied at the collage certificate 3 in prepress printing hoping if my application got approved I would be on the track again. I felt disappointed and anxiety took all over me again tearing me apart.
…
I regret being unlawful during these periods, and it was very stressful as I was in fear of my life and did not in any way want to be a burden on Australia or the Australian people as I felt for the 4 years prior part of the big Australian family and fully respectful of the Australian law and customs. It was the fear for my life and the dire situation in my home country at the time that led to my situation of being unlawful, and when I had the chance I applied and accepted as a permanent resident of this great country. During the times I was unlawful I never acted in any unlawful way I just kept to myself and never associated with any criminals nor have I done anything wrong not even traffic driving offences. Now since completing part of my studies I feel that I can benefit other by teaching them my skills and especially in the building industry and have previously provided the Certificates awarded to me from TAFE NSW. Furthermore I never to advantage of any government benefits I wanted to work and earn my living by hard work and pay my Taxes. Given the opportunity to become an Australian citizen I will always abide by the Australian law and will forever be grateful to Australia and Australian people for given me safety, peace education, freedom and respect.
I admit that it was my mistake and apologise for that and express my sincere remorse. I should have been more mature. Since becoming lawful for more than 6 years, I continue to maintain my legal status and respect Australian laws and values. I am doing charity work by donating money. I also made blood donation to the Red Cross and I will keep doing that as long as I am fit to do it. I am a person who can be relied on. Its the circumstances in my country that put me in unfortunate position.
I have never done or involved in any criminal offences.
I consider Australia as my home and request the Tribunal to consider my circumstances and remit my case to the Department to grant me citizenship.[12]
[12] Applicant’s statutory declaration dated 12 December 2019 at [3]-[9].
In his evidence to the Tribunal the Applicant stated that when he first found out that his visa had expired and he believed he would not be able to renew it and stay in Australia his greatest fear was that he would be deported back to Lebanon. He stated that this caused him to fear for his life and in due course he applied for, and was granted, a Protection visa when the RRT remitted the initial refusal of this application back to the Department for reconsideration “with the direction that the applicant satisfies s.36(2)(a) of the Migration Act”.[13]
[13] Respondent’s Additional Material at 44.
The Tribunal, however, notes that the Applicant did not apply for refugee status or a Protection visa when he first became an unlawful non-citizen in 2007. He did not lodge the relevant application until 8 April 2013.
It is also relevant to note that when the Department contacted the Applicant in December 2018 and again in February 2019 they sought his explanation of why he had remained in Australia unlawfully. According to the delegate’s decision record:
In your personal statutory declaration you admit to becoming unlawful and advise how you survived in that period however it does not justify why no attempt to rectify your visa status was made despite having the knowledge that it is a requirement of the Australian law to hold a valid visa.
…
You were advised you needed to provide the Department new statutory declarations and character references addressing the above points correctly. At this time before me, I have no record that a response has been made with new evidence regarding the unlawful period.[14]
[14] T documents at 15.
Similarly, there is nothing in the Applicant’s Reply to Respondent’s Statement dated 15 May 2020 which addresses directly this point.
The only point which seems to have been made on this particular issue was the Applicant’s statement at the Tribunal hearing that he feared, in the absence of a visa, he might have been deported. If that was a matter of concern to him when he first realised his unlawful status at some time in 2007,[15] as the Tribunal has already noted, the option of seeking refugee status and/ or a Protection visa could have been exercised at that stage rather than some five years later.
[15] Respondent’s SFIC at 18.
GOOD CHARACTER
The first point to be noted is that, in terms of the Act’s requirements, an applicant must establish positively that he/ she is of good character. In Chen, Senior Member (as he then was) McCabe made this explicit:
The wording of the test is important. It does not require that the Minister form an adverse view of the applicant’s character. The Minister must be positively persuaded that the applicant is of good character. Ms Linacre, for the respondent, said the Minister cannot be satisfied about the applicant’s character if there is evidence which calls that character into question.[16]
[16] Chen and Minister for Immigration and Citizenship [2007] AATA 1815, [18].
He went on:
Where evidence raises a question in the mind of the decision-maker over the fitness of the applicant, it is incumbent on the applicant to adduce evidence that will enable the Minister (or the Tribunal upon review) to conclude that the person is of good character notwithstanding the questions that were raised. It may not be possible to answer the allegations directly – for example, by comprehensively disproving the allegations – but the decision-maker must be provided with a level of comfort about his or her decision.[17]
[17] Ibid [21].
The term “good character” is, unhelpfully, not defined in the Act and so the Tribunal must place reliance upon the definitions developed by the courts and supported by the provisions of the Citizenship Policy (Policy) issued to assist decision-makers.
In Irving, the Full Court of the Federal Court stated:
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.[18]
[18] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431.
The Tribunal has further found that evidence of what a person says, does or what they are heard to say or seen to do should be taken as indication of their acceptance of the values and norms to which they are expected to adhere and be loyal.[19]
[19] Zheng and Minister for Immigration and Citizenship [2011] AATA 304, [120].
The Policy outlines what the characteristics of good character might amount to. These are set out, at some length, as expecting that applicants would (inter alia):
·respect and abide by the law in Australia and other countries.
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications.
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance).
·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia.
·not have evaded immigration control or assisted others to do so.
·not be the subject of any verifiable information causing character doubts.[20]
[20] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016 (Policy) at 147.
The Policy elaborates, by attaching to the phrase “enduring moral qualities”, further qualifications, namely:
·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.[21]
[21] Ibid 145.
However, it is equally important to note that, with reference to the phrase in question, the Policy also states that “[i]n this context, ‘moral’ does not have any religious connotations”.[22]
[22] Policy at 145.
The Tribunal notes that the role of the Policy is defined as being:
… to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.[23]
[23] Ibid 1.
In addition, the Tribunal, standing as it does in the shoes of the original-decision maker but making a de novo assessment of the evidence,[24] may take into account any other relevant factors including the gravity of any offences committed or indeed, in this case, the absence of any offences having been committed.[25]
[24] AFY18 v Minister for Home Affairs [2018] FCA 1566, [9] per Charlesworth J.
[25] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132, [14].
There is further significant guidance provided by the Federal Court. In BOY19, O’Bryan J stated:
Section 21(2)(h) requires the Minister to form a judgment as to whether he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite. Second, the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion…
The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character. Further, where a power is conferred by statute, Parliament is taken to intend that that power will be exercised reasonably. However, the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the Court disagrees.[26]
[26] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574, [54]-[55]. Citations omitted.
This approach was closely followed by the Tribunal in Wang where Senior Member Cremean stated:
The question I have to decide is a narrow one. Is it or is it not the case that the Applicant is of “good character” under s 21(2)(h) of the Act? If the Applicant is of good character, she is eligible for citizenship – there being no other ground advanced which would make her ineligible. If the Applicant, however, is not of good character then she is ineligible.
The approach I adopt to this question is that set out (in accordance with the authorities cited) by O’Bryan J in BOY19, above, at [54]. His Honour there says that the word “satisfied” in s 21(2)(h) of the Act “is not amenable to the application of the evidentiary burden of proof, such as balance of probabilities”. In particular Briginshaw, above, has no application. The matter I must be satisfied about (as Mr Rogers submitted), namely, “the Applicant’s good character, is not a fact to be proved but an opinion requiring evaluative judgment”. As His Honour goes on further to observe (at [55]) I am required to “reach an affirmative belief that the applicant is a person of good character”. It is not necessary for me to have “a high degree of confidence” that this is so but at the same time it is not sufficient for me simply to believe there is “a chance” this is so. I think it is clear, as well, that I must exercise my powers of decision reasonably.
Following out these precepts, I am satisfied (indeed, I do have a high degree of confidence in my belief) that the Applicant is of good character under s 21(2)(h) of the Act. I am satisfied that there is not merely a chance that this is so. I am confident of my view analysing the evidence, I consider, reasonably.[27]
[27] Wang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1924, [43]-[45].
The Respondent has urged upon the Tribunal a characterisation of deliberately overstaying a visa as constituting a “serious matter”.
In Britos, Deputy President Constance said:
Mr Britos' failure to obey Australian law by remaining in this country for many years as an unlawful non-citizen is a serious matter. He was aware of his unlawful status when he failed to return from shore leave and during those times he did not hold a valid visa. I am satisfied that he was prepared to break Australian law because he wanted to live in Australia and because he believed his prospects of employment in this country were better than in his home country.[28]
[28] Britos and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1282, [26].
Similarly, in Choi, Senior Member Poljak said:
I am satisfied that the applicant was aware of his unlawful status since his visa expired in February 2003. The applicant’s failure to obey Australian law by remaining in this country as an unlawful non-citizen is a serious matter. Given that the applicant’s period of unlawfulness was for approximately nine years, the seriousness of his conduct is magnified.[29]
[29] Choi and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 879, [15].
Both decisions were referenced in my own decision in Mabagos where I also said:
It is easy to feel sympathetic for the Applicant’s position given her personal history and her general lack of support … Nevertheless she simply failed to take active steps to regularise her position and to bring herself into conformity with the laws of Australia. Doing so is a hallmark of what is expected of, and required of, good citizenship.
An unlawful non-citizen cannot expect that they can, as it were, just outlast the system and in due course hope that their involvement in the life of the Australian community will cause their past breaches of the law to somehow vanish, or at the very least, be ignored.[30]
[30] Mabagos and Minister for Home Affairs (Citizenship) [2019] AATA 216, [63]-[64].
It is thus of some significance to establish the extent to which the Applicant both knew that he was remaining in Australia unlawfully and took steps to rectify or remediate his position.
It is patently obvious that the Applicant had a degree of familiarity with the Australian visa system. His evidence to the Tribunal was to the effect that he both understood that student and higher education visas had expiry dates and needed to be both renewed and kept current. He also knew that bridging visas were only of short-term duration. His actions in 2009 in seeking a MRT review of a decision to deny him another student visa and his subsequent appeal against their decision directly to the Minister speaks of his understanding of processes related to the issue of visas.[31]
[31] Respondent’s Additional Material at 4 and 5,
The length of time of the Applicant’s unlawful status amounts to some 4 years and 9 months cumulatively. This is out of a period of some 17 years that he has resided in Australia. It amounts to almost one-third of his time here.
In DCXT[32] Senior Member Kelly addressed circumstances somewhat analogous to this case. She said:
It is necessary to consider DCXT’s particular circumstances. He has been in Australia for almost 23 years. He was unlawful for a total period of nine years, almost 40% of the time he has been in Australia…
Short periods, such as days to a month such as in June 1998 and June 2005 in DCXT’s case are not very serious. For example, DCXT said that during the 26 days in June 1998, he was unaware that he was unlawful because he had asked a solicitor to submit a refugee application. I accept his evidence. Periods of years are very serious.
The Respondent submitted that DCXT had given insufficient reasons for being unlawful. In response to my asking why his reasons were not good enough, the Respondent’s legal representative said that DCXT should have approached the Department earlier and tried to engage with it. She conceded that having approached the Department on four occasions it was not unreasonable for DCXT to have concluded that he would not succeed. The Respondent did not contend that DCXT’s claimed fear about returning to Egypt was not genuine.
…
I accept the Applicant’s contention that apart from DCXT’s migration history, there is no other verifiable information causing any character doubts. However, I must be positively persuaded that the Applicant is of good character.
I accept that DCXT voluntarily sought to regularize his immigration status and has expressed his remorse and that he feels rejected and depressed because his citizenship has been rejected. However, he did not respect and abide by the laws in Australia for nine years because he knew he was unlawful and applied unsuccessfully four times to regularize his migration status. Decision-makers applying Australian migration law or deciding whether to exercise ministerial discretion did not accept his claims on four occasions. He did not accept and abide by any of those four decisions. It was only after a change in circumstances in Egypt in 2011 that the Minister was persuaded to exercise ministerial discretion. DCXT was evading migration authorities during the period he was unlawful. It is only about seven and a half years since a decision-maker applying Australian migration law was satisfied that DCXT’s circumstances entitled him to remain in Australia.
In those circumstances, I am not satisfied that DCXT is of good character at the time of my decision on the application.
[32] DCXT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1503, [24]-[30].
There are numerous parallels between DCXT and this application:
·in DCXT the applicant’s period of unlawfulness was some 40% of his total time in Australia compared with this Applicant’s one-third;
·both applicants recorded both short and long periods of unlawfulness;
·there were opportunities given to both to regularise their status which were not taken;
·both applicants’ fear of refoulement was eventually accepted as genuine;
·in each case there were no other doubts raised about the applicants’ character other than those which were migration-related and neither had criminal records;
·both applicants had visa refusals after which they continued to remain in Australia;
·both holding numerous bridging visas;
·both were eventually granted permanent residency, and DCXT applied for citizenship after four and a half years while this Applicant’s period was just over two years – in both cases their applications were refused;
·both applicants provided the Tribunal with several character references[33] in support of their applications.
[33] The Tribunal has taken note of the character references of MA; NH and Dr QE filed by the Applicant on 17 September 2019 all of which are written with the knowledge of the Applicant’s unlawful immigration status. The same is evident in the statutory declarations of RB, ARD and GH.
CONSIDERATIONS IN THE APPLICANT’S FAVOUR
The Applicant has expressed a degree of contrition and remorse over his failure to regularise his immigration/ visa status both in a series of written statements and in his oral evidence to the Tribunal.[34] However, in each of these three written statements he recognises only two of the periods when he remained unlawfully in Australia (March/June 2007 and June 2009/April 2013) while ignoring or not making reference to the unlawful periods of July/August 2007 or September 2007/February 2008 (in excess of five months). There is no explanation offered for these omissions.
[34] Applicant’s statement dated 17 September 2019; Applicant’s statutory declaration dated 12 December 2019; Applicant’s statutory declaration dated 14 May 2020.
He has no criminal record, and his driving offences are of an entirely minor nature.[35] It is accepted that he has contributed to the Australian community as a blood donor and has donated to charity. He appears to have been a regular taxpayer. He has completed various courses of study,[36] although there is no indication that he has completed the Charles Sturt University degree which he was enrolled in originally.
[35] Applicant’s Roads and Maritime Services Online Driving Record dated 4 December 2019.
[36] ICP30205 Certificate III in Printing and Graphic Arts (Graphic Pre-press) dated 27 February 2009; ICA50199 Diploma of Information Technology (System Administration) dated 13 October 2004; T documents at 199, 200 and 201.
He has submitted a number of character references and statutory declarations, all of which reference his illegal status and all of which speak highly of him as an individual and a potential citizen.[37]
[37] See above n 33 and accompanying text.
The Applicant’s genuine fear of return to Lebanon is not contested and he has been granted permanent resident status.
It is thus clear, as it was with DCXT, that the only ground upon which the Respondent can rely to deny this application for citizenship is the Applicant’s periods of unlawful presence in Australia and the extent to which they are indicative of the fact that he is not a person of good character.
AUSTRALIAN CITIZENSHIP
It has been very clearly stated that “[a] grant of Australian citizenship is a privilege given to persons who demonstrate good character”[38] and that “[t]he grant of Australian citizenship is a privilege not bestowed lightly”.[39]
[38] Haeri and Minister for Immigration and Citizenship [2009] AATA 422, [35]
[39] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].
One of the reasons that Australian citizenship is such a valued possession is that the Australian citizenship system is one of great integrity. It is based upon legislation enacted by a democratically elected Parliament, it is administered by a professional and politically neutral public service and decisions are subject to review by independent administrative and judicial authorities.
The maintenance of the integrity of the citizenship system is a matter of national importance and national interest. Ensuring that all citizens are properly entitled to that status is a bedrock of Australian democracy.
The High Court has stated that “[t]he AAT and the primary decision-maker exist within an administrative continuum”[40] of decision-making. The overall purpose of that continuum in this instance is the maintenance of the integrity of the citizenship regime. Within that, the AAT plays its role.
[40] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, [53].
DISCUSSION
There is thus a heavy burden placed upon applicants for citizenship who have been shown to have deliberately and consciously acted in a way which the law prohibits. In doing so, consciously, they have demonstrated a disregard for the law and disrespect for all those who have been compliant with the law. That, in itself, is not compatible with the holding of “enduring moral qualities” which are said to constitute a fundamental element of being of good character.
There are instances where applicants do not meet the requirements in relation to holding visas which are either out of their control (for instance, delays in processing visa reapplications) or where the period of unlawfulness is relatively short and steps are being taken to regularise their visa status. In those instances the Tribunal has generally exhibited a sympathetic approach to matters coming before it for review, and the Tribunal has never shied away from the proposition that we are “a nation built on second chances”[41] and hence are not adverse to extending them in appropriate cases. However, as I said in Dinkha:
Neither the Australian community, nor this Tribunal, is averse to giving people a second chance. However, those second chances are not automatically available; they have to be earned.[42]
[41] Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390, [23].
[42] Dinkha and Minister for Home Affairs (Migration) [2018] AATA 3037, [113].
It may be thought that the Applicant has earned his second chance by making sure that since his last period of unlawful presence he has comported himself in accordance with the law and has made some contribution to the Australian community.
Making an assessment in this instance requires the Tribunal to have consideration of two factors, namely, to what extent has the Applicant demonstrated a real commitment and contribution to the Australian community as a potential good citizen, and what length of time is thought relevant to both establish this and to have passed since the Applicant last committed his immigration breaches.
The Tribunal has turned its attention on a number of occasions to the issue of how much time should pass before it can feel confident that an applicant’s past offending should be allowed to fade into the background.[43]
[43] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132, [14].
Where the offences have been “too frequent and too recent”[44] or where “more time is required” to see whether good behaviour is sustained,[45] the Tribunal has been reluctant to set aside citizenship refusals.
[44] Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601, [83].
[45] Mahmood and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2033, [15].
The Tribunal’s position is best summarised in Assafiri where Senior Member Toohey stated:
It is submitted for Mr Assafiri that sufficient time has now passed for him to be considered of good character. I am not satisfied that is so. Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the individual case.[46]
[46] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, [67].
On that basis, in Sharma the Tribunal considered that two years was insufficient to allow it to make a finding of good character[47] and in Sui six years was not thought sufficient.[48] In all these cases the applicants had criminal records and although this Applicant does not have a criminal record his multiple breaches of the requirement to possess a valid visa to lawfully remain in Australia were still breaches of Australian law.
[47] Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608, [48].
[48] Sui and Minister for Immigration and Citizenship [2008] AATA 1062, [58] and [71].
While the Tribunal accepts that “[t]here is much to suggest that the applicant is accepting of the mistakes he has previously made and the errors of judgement that he has committed”,[49] it is equally persuaded that the Applicant adopted a course of action to remain in Australia in full knowledge of the fact that what he was doing was wrong. Moreover, he did so on more than one occasion. If he was fearful of being deported back to Lebanon then he knew that he had opportunities to apply for a Protection visa as far back as 2007, but did not do so.
[49] Haeri and Minister for Immigration and Citizenship [2009] AATA 422, [35].
The Tribunal acknowledges that the Applicant has made some contribution to the Australian community but there is nothing special about his activities which would cause him to be given some form of extra credit in recognition thereof. He cannot simply plead that not (further) breaking the law is something to be counted strongly in his favour.
The Tribunal accepts the Respondent’s contention that the number of occasions and the cumulative length of time during which the Applicant was an unlawful non-citizen are serious matters and that they should not be disregarded by the Tribunal.
The Tribunal adopts the reasoning in Fenn where Deputy President Breen stated:
That Mr Fenn is making a concerted effort to turn his life around, is a positive step; however, it will take longer than 5 years for there to be sufficient evidence that his character has been restored to the level required for a grant of citizenship. 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 year's time when he can demonstrate a longer period of positive contribution to the Australian community.[50]
[50] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].
This Tribunal believes that more time needs to pass before it can be confident that the Applicant has demonstrated those “enduring moral qualities” which are required to establish good character. At this stage the Tribunal does not find that he has demonstrated the requisite qualities and it is not positively persuaded that he is of good character to satisfy the requirement in paragraph 21(2)(h) of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
................................[sgd]................................
Associate
Dated: 31 August 2020
Date(s) of hearing: 21 July 2020 Applicant: In person (by video) Solicitors for the Respondent: Ms D Mak, Clayton Utz
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