LIAN and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 428

LIAN and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 428 (9 March 2018)

Division:GENERAL DIVISION

File Number(s):  2017/2127

Re:Ngun Thawng LIAN

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:9 March 2018

Place:Melbourne

The Tribunal affirms the decision under review.

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

Dr Damien Cremean, Senior Member

CITIZENSHIP – whether applicant is of good character in accordance with Citizenship Act 2007 – whether applicant is able to satisfy Tribunal of his identity – obtaining of Indian passports by fraudulent means –– deception in travelling, working and studying in various countries –– opportunity to seek protection in various countries not taken – Tribunal satisfied of identity of applicant but not of good character requirement – decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Cases

Briginshaw v Briginshaw (1938) 60 CLR 336
Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815

Secondary Materials

Citizenship Policy, Department of Immigration and Border Protection, 1 June 2016

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

9 March 2018

1. The Applicant, Mr Lian, seeks review of a decision (‘reviewable decision’) made under section 24 of the Australian Citizenship Act 2007 (Cth) (‘the Act’) not to approve his application to become an Australian citizen.

2. In doing so the Respondent’s delegate found that the Applicant is not eligible to become an Australian citizen because he is not of good character and because she was not satisfied of his identity.

   RELEVANT LEGISLATION AND POLICY

3. By section 21(1) of the Act a person may make application to the Minister to become an Australian citizen. Criteria are set out in the Act by which to determine an application. One of the criteria is good character and another is identity.

4. Section 21(2)(h) of the Act relates to good character and 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.

5. Section 24(3) of the Act relates to identity and provides:

   (3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.

6. To assist in interpreting and applying the Act the Department has issued the Citizenship Policy (‘Policy’). The Policy must be taken into account when considering a matter.

7. By the Policy (p 147), a person must:

   ·respect and abide by the laws of Australia and other countries; and

   …

   ·be truthful and not practise deception or fraud  in their dealings with the Australian Government  or other governments and organisations ,for example:

   §providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship application.

8. By the Policy also (p158) it is stated the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person’s identity.

9. The Applicant contends that in his case the delegate made a wrong decision based on her information. Accordingly, he says the reviewable decision should be set aside.

10. The Respondent, however, defends the reviewable decision and argues the reviewable decision should be affirmed.

11. At the hearing the Applicant was self –represented and gave sworn evidence and was cross-examined. He called one witness, Japheth Lian. Mr Lian made it clear he was no relation of the Applicant and indicated that Lian is a common name in Myanmar (Burma).

12. The Respondent was represented by Counsel but called no witnesses.

13. Various documents were received into evidence including a translated Citizenship Scrutiny Card bearing Number 021303 relating to a Maung Ngun Thawng Lian and dated 14/3/2000 specifying a date of birth as 8-2-1976. There are said to be pictures of the holder on the front and back of this Card. The original of the Card was not made available to the Tribunal and I comment on this below.

14. It was submitted by the Respondent at the beginning of the hearing that a document reporting on this Card should be the subject of orders under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) regarding its non-publication (including to the Applicant). I agreed, for the reasons submitted to me, and made such orders.

15. Other documents submitted included: a translated and certified Household Population List (document number 0761N) dated 23 May 2017; a translated and certified Recommendation (document number 0771N) also dated 23 May 2017; school photographs of a prize giving; National Police Certificate dated 11 May 2017;  Victorian  Driver Licence number 038383XXX; Working with Children card number D 1998XXX; letter of reference from the Chin Human Rights Organization dated 3 August 2011; letter from Hon Minister for Multicultural affairs undated; a letter of reference from Croydon Tennis Club dated 5 September 2017; and a Statutory Declaration of the Applicant made on 26  September 2017. The s 37 documents lodged by the Respondent were also received into evidence.

    Can Mr Lian can satisfy the Tribunal of his identity?

16. In the first place, the Respondent contends that the reviewable decision should be affirmed on the ground of identity. That is, that the Tribunal ought not to be satisfied of the identity of the Applicant as required by section 24(3) of the Act.

17. Having considered the evidence, and the submissions of the parties, I reject the Respondent’s argument that the Applicant is unable to verify his identity.

18. I am satisfied the Applicant, is who he says he is. I find this is so applying even the stricter or more demanding test referred to by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, assuming that such test applies. That is, I am satisfied, on the basis of that test if it applies, that the Applicant is telling the truth when he says his name is Ngun Thawng Lian who was born in Thantlang, Chin State, Myanmar (formerly Burma) on 8 February 1976. That is how his Statutory Declaration reads and I accept it and it was also his evidence. I find also that the names of his parents are: Mr Lal Awi Thang and Mrs Ni Cin.

19. The Applicant is I note supported in this by his Citizenship Scrutiny Card. It is true the Respondent produced a document regarding the Card, but the author of that document was not called to give evidence and I did not see or feel the original of the Card for myself. Both those matters are crucial in my view. Had the author of the document been called to give evidence and/or had I seen and felt the original of the Card I may well have agreed with its author.

20. The Applicant, however, maintained the validity of the Card and had a plausible explanation for its alleged shortcomings. In the circumstances I consider I should accept his evidence that the Card is accurate. I shall not expand on the alleged shortcomings because of the non-publication orders.

    Is Mr Lian of good character in accordance with section 21(2)(h) of the Act?

21. In the second place, the Respondent contends that the reviewable decision should be affirmed on the ground of the Applicant’s failure to meet the criterion of good character. That is, that the Applicant does not satisfy section 21(2)(h) of the Act.

22. In determining whether the Applicant satisfies the good character requirements under section 21(2)(h) of the Act, I consider the Tribunal’s decision in Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815 applies . In that decision, Senior Member McCabe stated in relation to the formulation of the assessment of good character as per section 13(1)(f) of the Act (at [18]):

    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.

23. Furthermore, in determining whether the Applicant satisfies the good character requirement in accordance with section 21(2)(h) of the Act, I also consider the Federal Court’s decision in the matter of Irving and Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 applies In that decision, Lee J considered the meaning of good character (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 while the latter is a review of subjective public opinion: seeClearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25....

24. The Applicant’s evidence was that in 1994, when aged about 18 years, he simply walked across the border from Myanmar (Burma) to India.  He was pursuing a calling as a Christian minister and he went into India to do Bible Study at a Baptist College. He did not have a passport from Myanmar (Burma). Then in 1998 he undertook biblical studies at the People’s Baptist Bible College and Seminary.

25. Before this, however, the Applicant had paid a broker in India to obtain a false Indian passport. He was worried he could be deported at any time from India back to Myanmar (Burma) if he did not have a passport and he was prepared to pay the Rs 6000 for it. Had he been deported to his home country his life he thought could be in great danger. He had heard numerous rumours and stories from others that Myanmar (Burma) was not a safe place for a Christian Minister. He feared persecution or worse.

26. That Indian passport was obtained by him on 15 May 1998 and was valid until 2008. It was renewed on 22 September 2000 after he paid Rs 2000 for a passport with a clearer picture of his face and an altered name. It was renewed yet again on 22 April 2000. When the passport expired he renewed it once more himself at the Indian embassy in Tokyo, Japan.

27. The Applicant travelled to many places across the world on that false passport and he acknowledges this. He was not born in India and knows he was never an Indian national.

28. The Applicant stayed for many years in Japan on the basis of the false passport and he went to various other places including the United Kingdom, South Korea, Singapore, Malaysia and Sweden in pursuit of his studies and also on the basis of the false passport.  He said he had no choice but to use the passport.

29. At no stage did the Applicant ever apply for refugee status in India or elsewhere. I consider his explanation for failing to do so was unconvincing. In India, he says he thought the process could take too long with no guarantee of success at the end of it. That would be a problem anyone would or could be facing I would think.

30. The Applicant now wishes to make Australia his home. He and his wife have a child born here and at the hearing he said they were expecting the arrival of a second child shortly. There are no disclosable court outcomes standing against the Applicant and people have spoken very positively of him.  I note the evidence of the Applicant’s character witness, Mr Lian, and I note the letters of reference the Applicant presented which were all positive.

31. The fact remains, however, that the Applicant has practised fraud or deception on a wide scale across the world and over a lengthy period of time. He admits to having obtained three Indian passports which were fraudulently obtained, despite the fact that they were legitimately issued by Indian authorities. He has portrayed himself as an Indian citizen to numerous authorities in other countries and has travelled to various places pretending to be one. He has not at any point availed himself of the opportunities which exist to secure refugee status, as I consider he could have done if I am to accept his account.

32. The Applicant has attempted to explain his deceptive conduct by submitting to the Tribunal that he obtained the false Indian passport in order to avoid deportation from India to Myanmar (Burma), where he feared persecution. I find this explanation difficult to accept. His conduct may have been understandable in the beginning when he was concerned about being returned to Myanmar (Burma). But that was in 1998 and he knew that the passport he obtained in India was false. After that, however, he did nothing to legitimately help himself. He failed to apply for refugee status in India or to explain his position to authorities there. Instead he continued living a falsehood. And he did so with planning and cunning. He says he had no choice but to do so but he did have the choice of not going overseas to study.

33. Furthermore, the Applicant had various opportunities in other countries to seek protection, but failed to do so, including in Korea, Japan, the United Kingdom and Denmark. As I have noted above, the Applicant chose rather to rely on deceptive means to travel, work and study in these countries.

34. I am satisfied that the conduct of the Applicant brings him directly into contravention of the Policy of the Australian Government. In my view in travelling on a false passport the Applicant has failed to respect and abide by the laws of other countries. 

35. I consider also that in contravention of the Policy the Applicant may be said as well to have failed to be truthful and to have practised deceptions or frauds in his dealings with other governments. This would be so every time he entered or re-entered a foreign country on the basis of his false passport.

36. In my view, despite all that may be said in his favour, the Applicant fails the good character test specified in section 21(2)(h) of the Act. In accordance with Re Chen, I am not positively persuaded that the Applicant is of good character.

37. In consequence, I affirm the reviewable decision.

·            I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the written reasons herein of Dr Damien Cremean, Senior Member

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

Associate

Dated   9 March 2018

Date of hearing	20 October 2017
Applicant	In person
Solicitors for the Respondent	Mr Ned Rogers, Australian Government Solicitor