LAI YOK WONG and MINISTER FOR IMMIGRATION AND BORDER PROTECTION
[2013] AATA 775
[2013] AATA 775
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/1499
Re
LAI YOK WONG
APPLICANT
And
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
RESPONDENT
DIRECTION
TRIBUNAL: Ms K Hogan, Member
DATE: 18 November 2013
PLACE: Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by changing the date in paragraph 15, of the decision, from July 2007 to August 2009.
…(Sgd) K Hogan……..
Ms K Hogan, MemberDecision
Tribunal Ms K Hogan, Member
Date 30 October 2013 Place Perth The Tribunal affirms the decision under review.
…(Sgd) K Hogan……..
Ms K Hogan, MemberCatchwords
CITIZENSHIP – Application for Citizenship by Conferral – Whether Applicant is able to Satisfy the’ Good Character’ Requirements of s 21(2)(h) of the Australian Citizenship Act – Applicant Overseas for Significant Periods since Obtaining Permanent Residence – Applicant did not Provide Overseas Penal Clearances
Legislation
Australian Citizenship Act 2007
Cases
Drake and The Minister for Immigration and Multicultural and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Secondary Materials
Australian Citizenship Instructions, Department of Immigration and Citizenship National Office
REASONS FOR DECISION
Ms K Hogan, Member
30 October 2013
History
The applicant was born on 31 August 1960 and is a citizen of the Republic of Singapore.
The applicant gained permanent residence when she entered Australia on 22 September 2005 and lodged an application for citizenship by conferral under subsection 24(1) of the Australian Citizenship Act 2007 (the Act) on 14 June 2012.
Since being granted permanent residence, the applicant has departed Australia on numerous occasions and, as a consequence of spending significant periods of time overseas, The Department of Immigration and Citizenship (the Department) requested that the applicant provide an overseas penal clearance in support of her application for citizenship.
The applicant did not provide a penal clearance certificate, which was required in order to satisfy the good character requirements of the Act. As a consequence the Department’s delegate was not satisfied that the applicant was of good character and refused her citizenship application on 19 March 2013.
The applicant applied for review to this Tribunal on 5 April 2013.
Issue
The issue to be determined by the Tribunal in this review is whether the applicant is of good character for the purposes of subsection 21(2)(h) of the Act.
EVIDENCE
The Tribunal was provided with a number of documents including:
(a)the section 37 documents;
(b)written submissions from the applicant and the respondent.
The Tribunal heard oral submissions on behalf of the parties.
The legislative framework
Under sub-section 21(1) of the Act, a person may make an application to the Minister to become an Australian citizen.
Section 24(1A) of the Act provides:
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under sub-section 21(2), (3), (4), (5), (6), (7) or (8).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under sub-section 21(2), (3), (4), (5), (6) or (7).
Sub-section 21(2) of the Act provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
...
(h) is of good character at the time of the Minister’s decision on the application.
The Australian Citizenship Instructions (ACI's) provide guidance on policy to the decision makers in relation to the interpretation of and exercise of powers under the Act and the Australian Citizenship Regulations 2007 (Cth).
Paragraph 10.6.2 of the ACI’s provides that:
Conferral applicants should be asked for an overseas penal clearance:
·From any country in which they have resided for a period of more than 90 days in last 20 years since the applicant turned 18 or
·When the decision maker requests a certificate.
APPLICANT
The applicant submitted that she used the Residence Requirements Calculator on the Department’s website to determine whether she had satisfied residence requirements before lodgement of her application and that she fulfilled the requirements.
In July 2007, the applicant, for business purposes changed her name to include the first name Mary. The name change is recorded with the Registrar of Births Deaths and Marriages of Western Australia.
The applicant contended in her statement of facts issues and contentions and in oral evidence:
·that she was a permanent resident during the four years prior to her application;
·her absences from Australia were no more than 12 months in total, including not more than 90 days in the 12 months prior to her application;
·she provided a penal clearance certificate dated 18 January 2005;
·she should be entitled to citizenship without the necessity to provide further documentation; and
·she would not be able to obtain any certification in the name of Lai Yok Mary Wong because that name does not appear on her passport or her Singapore identity card.
The applicant agreed with the information contained in her movement records (T12; page 77) that she was absent from Australia between 11 November 2005 and 21 May 2006 which is a period of 191 days.
respondent
The respondent contended that the Tribunal should apply the guidelines in the ACI’s “unless there are cogent reasons to the contrary” (Drake and The Minister for Immigration and Multicultural and Ethnic Affairs (No. 2) (1979) 2 ALD 634 (at 645)).
The respondent contended that as the applicant had spent more than 12 months outside Australia since obtaining her permanent residence (524 days in total since 22 October 2005) the applicant should provide penal clearance certificates for those countries in which she has spent a continuous period of time or more than 90 days since the age of 18 years.
The applicant’s electronic movement records provided in the T documents, referred to in paragraph 18 above, show that the applicant had made numerous extended overseas trips since 1993.
The respondent requested provision of a penal clearance on the following occasions:
·by mail on 18 June 2012, 4 September 2012, 14 September 2012, 23 November 2012, 10 January 2013;
·by phone on 26 June 2012;
·during interview on 21 August 2012. (T3 page 10).
Whilst the applicant had provided a penal clearance at the time of her application for permanent residency that clearance could only be relied upon to establish that the applicant did not have a criminal history in Singapore as at 18 January 2005.
The respondent did not consider her name change to be an issue in this matter and would accept a current penal clearance certificate in the name of Lai Yok Mary Wong or Lai Yok Wong.
The respondent contended that there were no cogent reasons to depart from the policy and it should therefore be applied.
CONSIDERATION OF ISSUES
The role of the ACIs is to support the Act. The instructions provide guidance on policy in relation to the interpretation of and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly; “Policy cannot constrain the exercise of delegated powers under the Act”.
During the hearing the applicant was clearly distressed as she was concerned that her character had been called into question.
There is no current finding that the applicant is not of good character. The applicant has simply failed to comply with a request from the Department’s delegate to provide the appropriate certification to enable the Department’s delegate to assess her character for the purposes of the Act.
The penal clearance certificate dated 18 January 2005 can only be relied upon to establish that the applicant did not have a criminal history at that time.
The Tribunal finds that there is no cogent reason for departing from the policy and therefore finds that the applicant must provide an overseas penal clearance certificate in accordance with the Act.
The Tribunal finds that without the appropriate overseas penal clearance, the Tribunal is unable to make a finding that the applicant is of good character for the purposes of section 21(2)(h) of the Act.
In the absence of the appropriate penal clearance, the Tribunal affirms the decision of the Department’s delegate's review of the citizenship application.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member.
...(Sgd) T Freeman.....................
Associate
Dated 30 October 2013
Date of hearing 23 October 2013 Applicant In Person
Advocate for the applicant Self Represented Representative for the Respondent Ms S Wende Solicitors for the Respondent
Sparke Helmore
1
0
0