Lin and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 1640
•13 June 2018
Lin and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1640 (13 June 2018)
Division:GENERAL DIVISION
File Number: 2017/5006
Re:Pencheng Lin
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:R Cameron Senior Member
Date:13 June 2018
Place:Melbourne
The decision under review is affirmed.
[sgd]........................................................................
R Cameron Senior Member
Catchwords
CITIZENSHIP – citizenship by conferral – good character requirement – Protection (subclass 866) visa – commercial fishing offences – failure to notify immigration of criminal offences – lack of honesty in the citizenship process – decision affirmed
Legislation
Australian Citizenship Act 2007
Cases
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422.
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Re Khorn and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 705.
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148.
Re Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022.
Re Dovey and Minister for Immigration and Multicultural Affairs [2001] AATA 935.Re Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984.
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
R Cameron Senior Member
13 June 2018
BACKGROUND
On 21 August 2017 the applicant, Pengcheng Lin, sought review of a decision of a Delegate of the Minister for Immigration and Border Protection (“the Minister”) refusing an application for Australian Citizenship by conferral under the Australian Citizenship Act 2007 (“the Act”) made on 31 July 2017.
An application for Australian Citizenship (dated 16 March 2017) was lodged by the applicant with the Minister on 17 March 2017.
The Application was refused by the Minister on the grounds that the applicant did not satisfy the good character requirement under section 21(2)(h) of the Act.
THE RELEVANT PROVISIONS OF THE ACT
The relevant sections of the Act are as follows:
Section 21 provides:
(1) A person may make an application to the Minister to become an Australian citizen.
(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.
Section 24 (1A) provides:
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
GOOD CHARACTER
The Act does not contain a definition of either good or bad character. The concept however, is well known in the context of immigration law let alone the general law. Frequently, the statement of such a concept of Lee J in the Full Federal Court of Australia decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs[1] is cited quite properly as an accurate statement of the law. His Honour observed as follows:
“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. See: Clearihan v Registrar of Motor Vehicle Dealers Australian Capital Territory (1994) 117 FLR 455 at 459-460 per Miles CJ; ... Plato Films Ltd v Speidel (1961)AC 1090 per Lord Radcliffe ... Lord Denning at 1138. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character, (See Re Davis (1947) 75 CLR 409 per Latham CJ, at 416 Clearihan at 461, per Miles CJ at 461 Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”
[1] (1996) 68 FCR 422 at 431. This case is apposite in that although it is a visa refusal case under the Migration Act 1958 that Act contained a reference to “good character” and was decided before the 1998 amendments which removed such reference and substituted the “character test”.
Additionally, there is the guidance offered by the definition of “good character” contained in the current Citizenship Policy[2] (“the Citizenship Policy”). Generally, the Delegate of the Minister will apply the Citizenship Policy in the absence of good reasons for doing so.[3] The Delegate is free to adopt such a policy in order to guide them in the exercise of the statutory discretion, provided the policy is consistent with the statute. Chapter 11 of the Citizenship Policy “Character” is referred to in its entirety for its full force and effect.[4] However, some aspects of the Citizenship Policy warrant reference. The phrase “good character” encompasses concepts which include: 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. It prescribes that for a decision-maker to be satisfied that an applicant is of good character he or she must demonstrate good enduring/lasting moral qualities that are evident before their Visa application and throughout their migration and citizenship process (emphasis added). [5]
[2] The current version commenced on 1 June 2016.
[3] See Re: Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.
[4] It is found in document T12 from page 91 of the T documents.
[5] Document T12, page 118 of the T documents.
Further characteristics of good character referred to in the Citizenship Policy include that an applicant of good character would:
(a)respect and abide by the law in Australia and other countries;
(b)be truthful and not practised deception or fraud in their dealings with the Australian government, or other governments and organisations, for example:
(i)providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during Visa and citizenship applications;
(ii)concealment of convictions that could lead to the cancellation or refusal of a these are or citizenship.[6] (Emphasis added.)
[6] Document T12, page 120 of the T documents under the third dot point under the heading “Characteristics of good character".
It is noted in the Citizenship Policy under the heading “Weighing up the character decision” that when an assessment about whether an applicant is of good character is being undertaken that requires the consideration of an aggregate of qualities. A decision‑maker must apply “community standards” and ask themselves the following questions:
(a)Would a person of good character have behaved the way the applicant did?
(b)Has the applicant behaved in accordance with Australia’s community standards?
It is then observed that a decision-maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. It is stated that in most cases this excursion into the history of the applicant’s behaviour will commence at a point prior to any visa application being made.[7]
[7] Document T 22, pages 207 and 208 of the T documents.
The obligation of truth and candour (often also referred to as “honesty and integrity”) as being of paramount importance in the immigration process has been emphasised in many cases before this Tribunal. Naturally, an obligation of truth and candour in dealing with decision-makers in the course of the migration process (where the truth is known only to the person making the statement, or likely to be known only to them) is of fundamental importance to ensuring the proper control which this country exercises in citizenship applications and of course the overall integrity of the immigration regime that the legislature has put in place. Providing false information or making false and misleading statements, together with incorrect or incomplete statutory declarations, and false allegations about departmental behaviour must, therefore, be regarded as serious misconduct on the part of any applicant whether for citizenship, a visa or any other right under the relevant migration legislation.[8]
[8] By way of example reference is made to the decision of Handley DP in Re Khorn and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 705 and McMahon DP in ReLachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148.
THE EVIDENCE
The evidence consisted of the documentary material contained in the following:
(a)T Documents filed by the respondent Minister;
(b)Supplementary T documents (“ST documents”); and
(c)A statement of the applicant with annexures dated 5 December 2017;
which were received in evidence.
Additionally, there was the viva voce evidence of the applicant, who was cross-examined by Mr Cunynghame on behalf of the respondent.
BACKGROUND TO THE APPLICATION
The applicant is a citizen of the Peoples’ Republic of China. He was born in the Fujian Province of China on 13 May 1988.
The applicant came to Australia and obtained a School Sector (subclass 571) Visa. A Protection (subclass 866) Visa was granted to him on 10 January 2013.
He is now married with a daughter born in February 2012 and a son born in January 2015, both in Melbourne. His wife and children are all Australian citizens.
On 17 March 2017 the applicant lodged with the Department of Immigration and Border Protection an “Application for Australian Citizenship” (General eligibility).[9]
[9] Document T8 of the T documents.
The “Application for Australian citizenship” at question 39 contained a question asking whether he had been convicted of, or found guilty of, any offences overseas or in Australia, to which he responded: “No”.[10] This response was false. The reason that this response was false is that the applicant was convicted on 10 March 2016 in the Korumburra Magistrates’ Court of various offences under the applicable fisheries legislation with respect to what might be described as poaching or the taking of commercial quantities of abalone which is prohibited. More about these convictions will be referred to below.
[10] Question 39 is contained in the "Application for Australian Citizenship" document T8 of the T documents.
Part M – “Declaration” of the “Application for Australian citizenship” contains a question “52” in which the applicant states: “I declare that the information I have supplied in this form is complete, truthful and correct in every detail.” Lest it need to be repeated, the applicant’s signature appears on the same page and below such a declaration.
CONVICTIONS RELATING TO COMMERCIAL FISHING OFFENCES
As noted above on 10 March 2016 the applicant was convicted of various fishing offences at the Korumburra Magistrates Court.[11] Those offences may be summarised as follows:
[11] Certified Extracts of each of the charges, convictions and the penalty imposed are found in document ST4, pages 5 – 26 of the ST documents.
(a)“Taking a commercial quantity of priority species within 24 hours”;
(b)“Taking more than twice the catch limit of abalone”;
(c)“Using abalone equipment to exceed the catch limit”;
(d)“Contravening a prohibition on taking abalone – failure to retain meat in a shell”’;
(e)“Failing to carry an instrument to measure abalone”;
(f)“Taking mollusc from intertidal zone” (2 charges);
(g)“Obstruct/hinder an authorised officer”;
(h)“Take abalone during closed season”; and
(i)“Contrary to prohibition use prohibited fishing equipment”.
On these charges the applicant was convicted and placed on a Community Corrections Order for 12 months and pursuant to such Order was directed to perform 200 hours of unpaid community work.[12]
[12] Additionally, it should be noted that an order was made by the Magistrates’ Court prohibiting the applicant for a period of 12 months from taking fish from marine waters or inland waters, possessing or using recreational fishing equipment in Victorian waters, had all recreational fishing licenses suspended and where appropriate the applicant (?) was disqualified from holding such a license. See document ST5 of the ST documents at page 27.
There are several matters concerning the fishing offences that should be noted in these reasons. Firstly, the applicant faced 22 charges at the Korumburra Magistrates’ Court on 10 March 2016. Secondly, he pleaded guilty to all of those charges. Thirdly, notwithstanding a guilty plea that was recorded as having been entered, 10 of those charges were marked as “Struck out – Withdrawn”. Fourthly, with respect to the charges of “Take Commercial Quantity – Priority Species” and “Possess Commercial Quantity, Priority Species” the applicant was bailed to appear at the Korumburra Magistrates’ Court on 10 March 2016 on his own undertaking, subject to certain conditions, which not surprisingly, required him to not be in possession of abalone, abalone equipment and within 1 km of any marine or estuarine waters, amongst other things (at least one of the charges was an indictable offence under the relevant legislation). Fifthly, the applicant attended a tape-recorded formal record of interview with the authorised Fisheries Offices at the Fitzroy police station on 4 January 2016 in which he was interviewed under caution with respect to allegations concerning various fisheries offences. Sixthly, the offences for which the applicant was charged and subsequently pleaded guilty to occurred on two occasions, namely 30 October 2015 and 29 December 2015. Finally, the total number of abalone taken from a reef detected by the fisheries offices was 114,[13] which is considered to be a commercial quantity.
FAILURE TO INCLUDE ANY REFERENCE TO THE COMMERCIAL FISHING CONVICTIONS IN THE APPLICATION FOR CITIZENSHIP
[13] See the summary which presumably was relied upon by the prosecution and agreed to by the applicant (as defendant and his legal representatives) in the Magistrates' Court at Korumburra on 10 March 2016 in the Supplementary T Documents ST6, page 28 and document ST11 of the Supplementary T documents at page 68.
As a result of the applicant’s failure to include any reference to the convictions for breaching the relevant laws regulating fishing, the Department on 15 June 2017 sent a letter[14] to the applicant advising that it had received a National Police History check on 30 June 2017 with respect to offences not declared on his “Application for conferral of Australian Citizenship”. A copy of the National Police History Check was attached to that letter.[15] The letter requested that a Statutory Declaration be provided by the applicant which addressed amongst other things why the applicant did not declare the offences on his application form, why he believed he was of good character and why his application for citizenship should be approved.
[14] Document T7 of the T documents at page 25.
[15] The National Police History Check is part of document T7 at page 31 of the T documents.
Further in numbered paragraph 2 of that letter he was requested to provide two character references from reputable Australians attesting to his present reputation in the community. Precise details of what should be included in the proposed character references were included and in particular it requested that such character referees state whether they were aware of the offences. Tellingly, with respect to this aspect of such character references the author of the letter specifically stated: “I will give more weight to referees that are aware of your criminal history and also references that are provided on a statutory declaration.”
On 12 July 2017 the applicant provided a statutory declaration made on 6 July 2017[16] by way of a response to the Departmental letter of 15 June 2017 referred to previously. The Statutory Declaration is referred to for its full force and effect. However he responded that:
“For my application form I think I did declared [sic] on it but didn’t specifically explain the whole situation because I thought it had been a whole year and shouldn’t be so important to relate to my application. I completed all of the obligations from the court. I seriously repent of my mistake since then I haven’t done any violation of Australian law.”
[16] Document T3 of the T documents at page 20.
Surprisingly, no character references were provided by the applicant at all.
Following receipt of the Statutory Declaration from the applicant by way of a response, the respondent proceeded to consider the application.
Upon such consideration of the application a decision was reached refusing the application on the grounds that it was found that the applicant did not satisfy the good character requirements under section 21(2)(h) of the Act.[17]
[17] The “Decision Record” and accompanying letter from the Department of Immigration and Border Protection is document T2 of the T documents.
ISSUE FOR DETERMINATION
The issue for determination by the Tribunal is whether the applicant is of good character for the purposes of the eligibility criteria to become an Australian citizen prescribed by section 21(2)(h) of the Act.
THE APPLICANT’S EVIDENCE
As noted above the applicant’s evidence consisted of a short witness statement of one page together with attachments dated 5 December 2017. (“The Applicant’s Witness Statement.”) Two of the attachments to the Applicant’s Witness Statement are references from Sophia Hung and Weihun Zhang the contents of which will be referred to later in these reasons.
In the Applicant’s Witness statement concerning the failure to disclose the previous convictions, the issue is addressed in the second paragraph in which he states: “I am very regretful for the errors which I had made in ticking the box of previous offences in Australia. I felt extremely sorry for this and I can assure that this mistake was a result of negligence.” The remainder of the statement includes reference to the fact that he has resided in Australia for 10 years and as noted earlier, his wife and two children are Australian citizens. Additionally, he notes that he owns two properties in Melbourne and manages two restaurants which provide employment opportunities for more than 10 employees in Australia.
The Applicant presented in the witness box as someone who was articulate and intelligent. He also seemed to be someone who was alive to his best interests at all times. In most instances he seemed to think carefully about giving his answers. Given these personal attributes that the Tribunal observed there were aspects of his evidence, as will be noted below, that were somewhat puzzling.
The Applicant’s viva voce evidence largely concentrated on the facts concerning the fisheries offences noted above. In his evidence-in-chief he conceded that he had been convicted of overfishing abalone and stated that he did not know that it was a crime or offence beforehand and that he made a mistake. He promised that he would not do it again.
Another aspect of his evidence was that he stated if he returned to China travelling on his Chinese passport with a protection visa issued by Australia he was afraid he would be persecuted by the Chinese government. Further, he stated that if he returned to China with an Australian passport he would not have any fear that he would be persecuted and also expressed the view (without identifying how he reached such a conclusion) that he would be protected by the Australian government.
When cross-examined concerning the failure to include reference to the previous convictions in the application for an Australian citizenship he stated that he made the error because he and his wife have limited command of English and he: “was not aware of whether it was a criminal offence.” It has to be said that this response is very difficult to accept given the fact that as noted previously these offences were detected, the applicant was stopped by authorised fisheries officers (and it should also be noted by Victoria Police officers), formally interviewed[18] at the Fitzroy police station under caution, charged, bailed, subsequently appeared at the Korumburra Magistrates’ Court, pleaded guilty, was convicted and was placed on a Community Corrections Order requiring him to undertake 200 hours of community work (which he completed). Given this series of steps undertaken in the exercise of the criminal justice process against the applicant, it seems implausible to suggest that the applicant, even with a limited command of English, would not have regarded the charges, to which he pleaded guilty and was convicted, criminal offences.
[18] It should be noted that during this formal record of interview under caution a Chinese speaking interpreter was present at all times and he was advised of his rights to remain silent and communicate with a legal practitioner if he wished.
In response to further probing in cross-examination he stated he didn’t know that overfishing in Australia was such a serious issue. However, after 200 hours of the Community Corrections order he learned the lesson and would never do it again. Once again, this response seems inconsistent with his failure to disclose the convictions in his application form. Surely, if he learned his lesson after 200 hours of community work under the Community Corrections Order and he had recognised that overfishing was such a serious issue it must have occurred to him that firstly, it was serious, secondly, a criminal offence and thirdly, one that he was obliged to disclose when completing the form.
Another topic arising from the fisheries convictions that was explored in cross-examination was the fact that the applicant had thrown a bag out of the car he was driving before he was apprehended by the authorised fisheries officers and the police.[19] When asked why he threw the bag out he stated he was afraid of being caught. A further question was put to him as to why it was important to throw the bag out of the window in terms of being caught and he responded that at the time he was fishing for abalone he saw the police and threw the bag away. When asked why he did this he repeated that he threw it out because he “had a fear at that time”. This response was also inconsistent with his response to a subsequent question where he stated:
“I was thinking overfishing of abalone was just like a parking infringement. I was not aware of the serious consequence. After the first time I had no warning that is why I went for a second time two months later. After the second incident after the court hearing I was really regretful for what I had done before I never did that again. Yes I treated it just like a parking fine. Yes”
[19] To his credit the applicant readily conceded this whilst in the witness box. It is also confirmed in the "Summary of alleged facts provided to the Korumburra Magistrates’ Court”, document ST6 of the ST documents at page 28 and in document ST11 of the ST documents, at pages 66 and 67, being the record of interview by the authorised fisheries offices with the applicant at the Fitzroy police station on 4 January 2016.
He was then asked what he had to fear from a parking infringement if it was only that small. His response was: “Any parking infringement you have to pay a fine. I just had some kind of thinking that if I threw the bags away I won’t be fined for whatever reason. Yes I was trying to escape the consequences of my illegal actions.”
There are several aspects of this evidence that are of concern. Throwing the bags out the window of the car when being pursued by authorised fisheries officers and the police is an attempt to conceal evidence and avoid detection, together with subsequent prosecution. This does not reflect well on the applicant. Also, there is the inconsistency in his evidence where he spoke earlier about the fear he had of being apprehended or caught and then asserting that such conduct was not serious and tantamount to nothing more than a parking infringement. If it was tantamount to a parking infringement one is compelled to ask why did he not simply face the consequences rather than attempt to conceal evidence and avoid detection by throwing the bag out the window of the car? Apart from not reflecting well upon the applicant it tends to indicate that he had some insight if not knowledge, of the seriousness of what he was engaging in and that a potential prosecution was definitely more serious than a parking infringement. Regrettably, for these reasons the applicant did not make a favourable impression in the witness box and his evidence with respect to these matters is unreliable.
In the record of interview conducted at the Fitzroy police station with the authorised fisheries officers on 4 January 2016, the applicant was also probed about why he threw the bag out the window of the car (in that record of interview he admitted that he threw the bag out of the car). [20] He stated that he threw it out because there were abalone in it and when asked why he threw it out he stated “Because we caught too much”. This admission (not to mention the subsequent guilty plea) indicates that he was aware that there are bag limits or catch limits and that he had broken the law. It is consistent with him having knowledge at the time of his offending that he was well aware, contrary to his evidence in the witness box, that overfishing of abalone was “a serious issue”. He might well not have known what the catch limit for abalone was but clearly knew that 114 abalone were too many and that he had broken the law. Once again this reflects poorly on the applicant’s credibility.
[20] See document ST11 of the Supplementary T Documents at page 67. The portions of the formal record of interview concerning throwing the bag out the window are to be found at both pages 66 and 67 (document ST11) of the Supplementary T documents.
A further aspect of his record of interview that does not reflect well upon him is that having caught 114 abalone, when asked for an explanation, he stated that he took them home to eat.[21] This number of abalone is a commercial quantity and more than the catch limit of five per day. There must be a serious doubt about the answers that the applicant gave to the authorised fisheries officers in the record of interview at the Fitzroy police station on 4 January 2016 that he simply caught the abalone to take them home to eat. One may speculate as to what the applicant intended to do with such a large quantity of abalone, but once again it does not reflect well upon him.
[21] See for instance documents ST6, the prosecution's summary of alleged facts (presumably agreed to by the applicant and his legal advisors at the Korumburra Magistrates Court hearing on 10 March 2016) on page 29 and ST11 being the record of interview at the Fitzroy police station on 4 January 2016 at pages 67 and 69.
Another matter canvassed in the course of cross-examination was whether or not the applicant ever had a fishing license. When probed about this he stated he couldn’t quite remember if he had one, or if it had expired at the time that he committed the offences. He stated however, that he now knows that he needed to apply for a fishing license and did so. Once again it should be noted that during the record of interview at the Fitzroy police station on 4 January 2016 the applicant was specifically asked if he had a current Victorian recreational fishing license. He responded “it’s expired”. When asked if he had any exemption from holding a Victorian recreational fishing license he stated “no”.[22] The fact that the applicant was aware at the time of the offending that he needed to have a current Victorian recreational fishing license, yet went out and caught a commercial quantity of abalone when it has expired also reflects poorly upon his character and reveals a propensity on his part not to adhere to applicable laws of this country.
[22] See document ST11 of the ST documents at page 65 being the record of interview conducted at the Fitzroy Police Station on 4 January 2016.
When probed about what he does when submitting other forms to government agencies he stated that they are often completed by his wife or he finds a lawyer or some other people who help him understand them. He conceded under cross-examination that it would have been prudent for him to make sure he understood what was in the citizenship application form. He then repeated that he did not understand which situations were “criminal crimes” or breaches.
He repeated the evidence he gave in-chief under cross-examination about what he believed to be the risks of persecution in China if he returned on his Chinese passport with a protection visa issued by Australia. He repeated that in such circumstances he would become a tourist in China and would be “protected by the Australian government” if he travelled to China on an Australian passport.
SOME OBSERVATIONS ON THE REFERENCES ATTACHED TO THE APPLICANT’S WITNESS STATEMENT
As noted earlier the applicant’s Witness Statement has two references attached to it, one from Sophia Hung and the other from Weihuan Zhang. Neither of these references are in the form of a statutory declaration.
The Hung reference does not contain any comment about the applicant’s offending. It asserts amongst other things, that he is, “highly recommended”, and “a responsible and reliable person”. For this reason alone little weight can be placed upon it. Further, it does not condescend to much detail as to why the opinions expressed in it have been reached. It is largely conclusory and therefore, once again is of limited value to the Tribunal for the purposes of this application.
The Zhang reference states that he understands that the citizenship application was refused because the applicant: “made some mistakes in answering some of the citizenship application form in regards to previous offence records.” Whilst there is no doubt that the referee concerned does attest favourably to the applicant’s reputation and attributes, he does not state whether he knows what the offences were for (and therefore cannot fully appreciate the seriousness of the offences committed) and what if any penalty was imposed. He does not state whether he is aware of, for instance, if the applicant has gained an insight into the gravity of his offending and also critically, the importance of being truthful and accurate in all dealings with government agencies in the context of completing forms. His reference is confined to acknowledging the “mistakes” concerned made by the applicant. This does, to some degree, limit the force and effect of such a reference and therefore the weight that the Tribunal can place upon it.
CONSIDERATION
Looking holistically at the applicant’s behaviour over a lasting or enduring period of time raises several concerns. These concerns will be reviewed individually. In conducting such a review it will be in the context of whether a person of good character would have behaved the way the applicant did; and whether the applicant behaved in accordance with Australia’s community standards.
The failure to include any reference to the previous convictions for fishing offences in the application for citizenship on its face does not reflect well on the applicant, notwithstanding the evidence he gave by way of explanation both to the respondent, in his witness statement and the evidence to the Tribunal from the witness box. For the reasons outlined above the Tribunal was forced to reject the applicant’s evidence that he was not aware that it was a criminal offence. Given the processes of the justice system that he was subjected to from the time of his apprehension to the time of the completion of his Community Corrections Order, this would have left the applicant in no doubt not only of the seriousness of the offences but the fact that they were criminal offences. Therefore, they should have been disclosed on the application for citizenship. A person of good character would not have behaved the way the applicant did in these circumstances in completing the form, let alone engaging in the offences referred to.
There was also the evidence of the applicant that he was aware on (?) occasion to have important forms completed by a lawyer or some other person who can assist in completing them. One finds it hard to imagine that in the shoes of an individual such as the applicant (bearing in mind the fact that he was granted a protection visa by Australia as a result of potential or actual persecution of him as a Christian member of the church) that there could have been a more important official application form that the applicant was likely to complete in Australia. This failure to include reference to the prior convictions in such a setting is not a good reflection of his personal characteristics and qualities. This observation is amplified by the fact that the applicant in giving his evidence in the witness box presented as someone who carefully thought about his answers and was alive to protecting his interests at all times.
His explanation for failure to include reference to the convictions in the application for Australian citizenship that the error was made because he and his wife have limited command of English, for the reasons outlined above, particularly given the gravity of the experience the processes he was subjected to that culminated in an appearance at court and a Community Corrections Order, it is repeated is difficult to accept. It is all the more difficult to accept given the concession he made as noted in the previous paragraph, that he was aware of the necessity or perhaps utility, of obtaining assistance from a suitably qualified person or someone appropriately familiar with the English language to complete important official forms. The way his explanations of his conduct seemed to shift depending on the occasion, or during the course of the evidence he has provided to the Tribunal, highlights real concerns about the character of the applicant.
The evidence that he gave concerning his lack of knowledge of overfishing and the laws applicable to it lack credibility. On his own admission both in the witness box and the record of interview at the Fitzroy police station he acknowledged that there were rules relating to overfishing. Further, and somewhat disappointingly, he acknowledged that he needed a recreational fishing license yet it had expired. He seemed not to care about the consequences of fishing without a license. This again does not reflect the actions of someone of good character, nor someone acting in accordance with Australia’s community standards.
His explanation for catching 114 abalone to eat does not seem particularly plausible. Although, the Tribunal does not place particularly significant weight to this fact it once again does not particularly assist him with respect to this application.
There is the further evidence of throwing the bags out of the car which has been referred to before. This is coupled with the inconsistency between his evidence where he stated he thought the matters were tantamount to nothing more than a parking infringement yet sought to conceal his involvement in the crime. It is to be repeated that of course if it were nothing more than a parking infringement why did he go to the lengths he did to avoid detection? These are not the acts of a person of good character and do not comply with Australian community standards. In terms of the Citizenship Policy they do not show a capacity on the part of the applicant that respects and abides by the laws of Australia.
Whilst it is not necessarily a decisive factor there is also the fact that the applicant pleaded guilty to 22 offences (it is acknowledged that 10 of those charges were withdrawn or struck out) and that such offences occurred on two occasions. This does demonstrate that the applicant at least whilst committing these offences had a propensity to break the law in several respects on two occasions. These are not the indicia of a person of good character. As was also submitted by the respondent[23] the significance of these convictions for overfishing of abalone cannot be underestimated. Abalone fishing is one of Victoria’s most valuable aquatic industries. Overfishing or illegal fishing of abalone has several effects including:
(a)Illicitly obtained abalone may be of poor quality and a subsequent risk to the health of human consumers;
(b)illicit fishermen who are unregulated undercut licensed abalone fishermen who obtain such licenses from government regulatory authorities; and
(c)large-scale sustained illegal fishing has the potential to threaten the sustainability or viability of Australia’s abalone stocks which are highly sought after.
[23] Paragraph 27 of the respondent's Statement of Facts, Issues and Contentions, together with the references identified in that paragraph, is referred to.
As noted above the references provided are of limited assistance to the Tribunal and do not carry much weight. As was noted by the Tribunal in the case of Re Kiokata and Minister for Immigration and Multicultural Affairs:[24]
“…references are subjective views of persons having contact with Mr Kiokata, and should not be given the same weight that should be accorded to Mr Kiokata’s own actions and conduct which has been set out in substantial detail above.”
[24] [1999] AATA 1022 at [109].
Thus in this context it is possible that an applicant might be a person otherwise considered to be of good character and in other aspects of his or her life conduct themselves in a way that would be recognised as good, but still be classified or identified as of bad character and therefore unsuccessful in the application in an immigration sense.[25]
[25] Re Dovey and Minister for Immigration and Multicultural Affairs [2001] AATA 935 at [27].
These references, to borrow the terminology of Lee J in Irving, are used in the sense of establishing the good standing, fame or repute of the applicant in the community, not his enduring moral qualities as contemplated by the authorities referred to above and the Citizenship Policy.[26] Someone is perfectly capable of having good standing, fame or repute in the community but still making false or misleading statements to the migration authorities (or indeed non-compliance with laws or engaging in other bad conduct during the course of the investigation and prosecution of such crimes) over a long time span, as was the case with the applicant in this instance.
[26] All of these references have been considered by the Tribunal in its deliberations in this matter.
Therefore, in this setting the provision of false information or making false and misleading statements in a visa application and subsequently an Application for Citizenship has been held to assume a special relevance with respect to the character test applicable under the Act and other similar migration legislation.[27]
[27] Re Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984 at [48].
Some observations should be made on the evidence given by the applicant about his belief that if he travelled to China on an Australian passport that he would not be persecuted (or as he more accurately put it he would be provided with Australian government protection). No evidence was offered by way of corroboration for these opinions expressed by the applicant in the witness box. When probed on it and why he had not for instance sought advice from such persons as an immigration agent or an immigration lawyer his response was that he did not need to seek such advice to reach this view. In the absence of some other corroborative evidence it is really impossible for the Tribunal to reach a conclusion on these assertions by the applicant.[28] Further, in the circumstances little or no weight can be given to this consideration. Finally, of course it cannot be relevant to a consideration of the grounds of refusal on the basis of the character test under section 21(2)(h) of the Act.
[28] Both the applicant and the respondent were granted the opportunity by the Tribunal to file and serve further material on this topic. The applicant lodged further material including a brochure written in Chinese obtained apparently from the Consulate General of the People's Republic of China, with the Tribunal on 17 April 2018, which has been taken into account. Save for containing some material as to how one obtains the issue or replacement of a Chinese passport it did not answer the question at all. The respondent in a short further submission stated that it was unable to make any realistic further submissions on the topic and submitted that the issue in any event was otherwise of little relevance to the merits of this case. The Tribunal agrees with the respondent's submissions on this question.
CONCLUSION
On an objective assessment of the matters described above and the conduct engaged in by the applicant, his enduring moral qualities and character are found wanting. The Tribunal cannot conclude that a person of good character would have behaved the way the applicant did or that he has behaved in accordance with Australia’s community standards. Looking at all of the matters considered in these reasons with respect to his behaviour holistically from the time of his commission of the fisheries offences, the completion of the application for Australian citizenship and his evidence to this Tribunal, he does not appear in a good light. Accordingly, the Tribunal must find that the applicant is not currently of good character and therefore does not meet the eligibility criteria specified in section 21(2)(h) of the Act.
The Tribunal should note that the applicant can apply for Australian citizenship in the future. As observed by Lee J in Irving, a person who has been found to be of bad character may nonetheless show that he or she has reformed and become a person of good character.
Therefore, the decision under review made by the respondent on 31 July 2017 is affirmed.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of R Cameron Senior Member
[sgd]........................................................................
Associate
Dated: 13 June 2018
Date of hearing: 23 March 2018 Date final submissions received: 17 April 2018 Advocate for the Applicant: Mr Pei Ling Zheng Agent for the Applicant: Century Migration & Translating Service Australia Advocate for the Respondent: Mr Adam Cunynghame Solicitors for the Respondent: Sparke Helmore
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