Lin and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)
[2024] AATA 3211
•30 April 2024
Lin and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2024] AATA 3211 (30 April 2024)
Division: GENERAL DIVISION
File Number: 2023/7940
Re: Zhe Sheng Lin
APPLICANT
And Minister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Senior Member A. Nikolic AM CSC
Date: 30 April 2024
Place: Melbourne
The reviewable decision is set aside and substituted with a decision that the Tribunal is satisfied of the Applicant’s good character pursuant to s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).
.............[sgd]...........................................................
Senior Member A. Nikolic AM CSC
Catchwords
CITIZENSHIP – application for conferral of Australian citizenship – citizen of People’s Republic of China – whether Tribunal is satisfied of Applicant’s good character – Australian Citizenship Act 2007 (Cth) – finding of guilt in April 2022 for Common Assault – conditional release order for 12 months that expired on 6 April 2023 – isolated offending – enduring moral qualities – Tribunal satisfied Applicant is of good character – decision set aside
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39
VFWQ v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCA 230
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Secondary Materials
Department of Immigration and Border Protection, Australian Citizenship Policy Statement
(27 November 2020)
Department of Home Affairs (Cth), Refugee, Citizenship and Multicultural Programs Division, Revised Citizenship Procedural Instructions - Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (26 February 2021)
New South Wales Government, ‘Conditional Release Orders’, Corrective Services NSW
(Web Page, updated 11 May 2023) < FOR DECISION
Senior Member A. Nikolic AM CSC 30 April 2024
INTRODUCTION
1.The Applicant seeks review of a decision to refuse his application for Australian citizenship based on the good character requirement at s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (“the Act”).
2.The hearing was conducted on 24 April 2024. The Applicant was represented by Mr Min Guo of counsel, instructed by Elit Lawyers by McGirr & Snell. The Respondent was represented by Ms Felicidade Lay, a solicitor with Minter Ellison Lawyers.
3.This case turns on whether the Tribunal is satisfied at the time of its decision if the Applicant is of good character.1 For the following reasons, the reviewable decision is set aside.
BACKGROUND
4.The Applicant is a thirty-three-year-old citizen of the Peoples Republic of China.2 He first arrived in Australia on 1 March 2008 on a Schools Sector (Class TU) (subclass 571) Visa.3 He undertook high school and university studies in Australia and has since established a successful business. The Applicant was granted a Partner (Class BS) (subclass 801) Visa on 2 May 2019.4
5.On 4 August 2021, the Applicant was involved in a violent incident with his intimate partner. He was subsequently found guilty of Common assault (DV)- T2 at the Downing Centre Local
1 BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39, 40, [3] (O’Bryan J); VFWQ v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCA 230, [21] (Banks-Smith J).
2 Exhibit R1, 47-48.
3 Ibid 147.
4 Ibid 9, 29, 148.
Court on 10 November 2021, and sentenced to a 12-month Community Correction Order. This is the Applicant’s only offending in Australia.
6.The Applicant appealed against the severity of his sentence, and on 7 April 2022, the Downing Centre District Court instead handed down a 12-month Conditional Release Order (“CRO”) without conviction. The CRO concluded on 6 April 2023.
7.The Applicant applied for Australian citizenship by conferral on 30 March 2023.5 On 3 August 2023, a delegate of the Minister invited him to comment on his criminal history.6 The Applicant responded through his lawyer on 30 August 2023.7
8.On 3 October 2023, a delegate of the Minister refused the citizenship application on the basis that the Applicant did not satisfy s 21(2)(h) of the Act.8
9.The Applicant asked the Tribunal to review the refusal decision on 26 October 2023.9
LEGISLATIVE FRAMEWORK
10.Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. To be eligible for citizenship, a person must meet each of the eight general eligibility requirements under s 21(2) of the Act.
11.Section 21(2)(h) of the Act requires the Minister to be satisfied that the citizenship applicant ‘is of good character at the time of the Minister's decision on the application.’ Section 24(1A) of the Act prohibits the Minister (or a person delegated by the Minister under s 53 of the Act) from approving the application unless so satisfied.
12.Section 52(1)(b) of the Act confers jurisdiction upon the Tribunal to review decisions made under s 24 of the Act.
5 Ibid 18.
6 Ibid 60-69.
7 Ibid 70-138.
8 Ibid 140-143.
9 Ibid 3-8.
13.The Tribunal’s decision in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 (“Fenn”) is often cited for its elaboration on the significance of good character:
‘The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year’s time when he can demonstrate a longer period of positive contribution to the Australian community.’10
Citizenship Policy Statement and Revised Citizenship Procedural Instructions
14.The term ‘good character’ is not defined in the Act but has been interpreted broadly:
‘…Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion…’11
15.The Australian Citizenship Policy Statement (“Policy”) (reissued 27 November 2020) and the Revised Citizenship Procedural Instructions (“CPIs”) (reissued 26 February 2021) guide decision-makers in exercising powers and discharging functions under the Act. Although this policy is not binding on the Tribunal, decision-makers undertaking merits review can consider it unless ‘there are cogent reasons to the contrary.’12 The Tribunal has not identified any reason why the Policy and CPIs should not be applied in this matter. That said, the Tribunal is mindful of the need to consider the exercise of delegated powers based on the Act and specific circumstances of each case.13
16.Relevant to this application is Citizenship Procedural Instruction 15-Assessing Good Character under the Citizenship Act (“CPI 15”). CPI 15 explains the meaning of ‘good character’ in the following terms, reflecting the judgment of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs:14
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,
10 Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8] (‘Fenn’).
11 Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128, 142 [60].
12 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
13 GJDB and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3245, [29], (Kyrou J).
14 Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431.
namely, a reference to the enduring moral qualities of a person, and not 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… 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… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
17.CPI 15 provides guidance as to the meaning of the term ‘enduring moral qualities’: The phrase ‘enduring moral qualities’ encompasses the following concepts:
· characteristics which have endured over a long period of time;
· distinguishing right from wrong; and
· behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement necessitates consideration of an applicant viewed in a holistic way; that is, all aspects of his/her life may be relevant to consideration of character.
18.CPI 15 provides an inclusive list of characteristics generally expected of a person of good character, noting that ‘as a general proposition, a person who is of good character would:’
·respect and abide by the law in Australia and other countries;
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds, and pay debts to the Commonwealth);
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
…
19.Under the heading ‘Community standards’, CPI 15 states that the Preamble to the Act can assist in identifying what the Australian community considers to be proper behaviour when assessing good character:
Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)by pledging loyalty to Australia and its people; and
(b)by sharing their democratic beliefs; and
(c)by respecting their rights and liberties; and
(d)by upholding and obeying the laws of Australia.
20.Under the heading ‘Weighing information’, CPI 15 sets out how a holistic assessment of a person’s character may be made:
In addition to the general principles of good decision-making set out in CPI 17 – Decision- making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:
· characterise the nature of any offence or behaviour
· is the offence serious or minor?
· did the offence harm other people?
· who were victims?
· is there a pattern of behaviour?
· was it a one-off incident?
· were there extenuating circumstances?
Consider any associations with people or organisations of concern. Consider any mitigating circumstances:
· length of time since the offence was committed
· age at time of offence
· behaviour since completing prison sentence or obligations to court
· remorse regarding their offending behaviour
· community support (referee reports etc)
· changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.
The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.
21.The requirement for a global assessment of a person’s character has previously been discussed by the Tribunal in Prasad and Minister for Immigration and Ethnic Affairs:
‘…a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness’.15
EVIDENCE
Documentary evidence
22.During the pre-hearing phase the Applicant lodged a Statement of Facts, Issues, and Contentions dated 19 February 2024, a bundle of documents numbering 77 pages,16 and a one-page summary of his charitable contributions.17 The Respondent lodged a Statement of Facts, Issues, and Contentions (“RSFIC”) dated 18 March 2024, and two bundles of documents numbering 233 pages18 and 98 pages.19
Applicant’s evidence
23.The Applicant adopted his Statutory Declaration dated 24 August 2023 as true and correct.20 His oral evidence is summarised as follows:
(a)The Applicant agreed with the Police Facts in evidence, to which he pleaded guilty. He has since sought assistance from a counsellor to better cope with stressful situations. At the time of his offending stress was referrable to the ‘start up’ nature of his business during the COVID lockdowns, requiring him to work very long hours. This was magnified by his former partner’s fraudulent conduct. The Applicant accepts he responded inappropriately and expressed remorse for this. He agreed that the community does not accept any violence in a domestic context.
15 Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7].
16 Exhibit A1.
17 Exhibit A2.
18 Exhibit R1.
19 Exhibit R2.
20 Exhibit R1, 129-132.
(b)In relation to the character section in his citizenship application, the Applicant said he inaccurately responded to a question because a finding of guilt and a conviction are two different things. He said no conviction was recorded against him, whereas the question asked about convictions and court orders that were irrelevant to his circumstances.21 He recalled his lawyer telling him after his appeal that he was ‘free to go’ and said he subsequently had ‘nothing to hide’ as shown by his consent to the Australian Criminal Intelligence Commission checking his history.
(c)The Applicant said he has made positive changes in his life since the incident with his former partner and business success has enabled a better work-life balance. He has found better ways to deal with stress, such as going to the gym and mixing with family and friends.
(d)The Applicant referred to the vision, mission, and values of his company. He said teamwork, integrity, and responsibility are values that are important to him. He also referred to a list of charitable contributions he has made.22
Evidence of Ms Lucinda Grice
24.Ms Grice adopted her Statutory Declaration dated 28 August 2023 as true and correct.23 Affidavits she swore for the Applicant’s criminal proceeding were also available.24 Ms Grice describes her relationship with the Applicant as based on mutual trust and respect. She said the Applicant is passionate about ‘connection to community’ and referred to his charitable donations amounting to tens of thousands of dollars ‘straight out of his bottom line’. Ms Grice said the Applicant ‘sets the tone’ for the company’s values and leads by example. She recalled the aftermath of the incident on 4 August 2021 and said he was ‘very transparent’ about what occurred, acknowledged it was the wrong thing to do, and undertook counselling resulting in positive change.
Evidence of Mr James O’Connor
21 Ibid 36, 130-131.
22 Exhibit A2.
23 Exhibit R1, 76-77.
24 Ibid 78-83; Exhibit R2, 83-87.
25.Mr O’Connor adopted his Statutory Declaration dated 24 August 2023 as true and correct.25
Mr O’Connor is the Applicant’s psychotherapist / relationship therapist and has undertaken
17 one-hour sessions with him.26 Mr O’Connor said the Applicant’s offending is contextualised by a ‘highly insecure and manipulative relationship’ with a former partner who acted deceptively and destroyed the Applicant’s trust. Based on psychometric testing, the Applicant does not display ‘traits or attributes [indicative of] violent or aggressive tendencies’. The Applicant can now better deal with future stress or interpersonal conflict, having undertaken ‘behavioural experiments’ and ‘building skills for self-management’.
Evidence of Mr Robert McGurr
26.Mr McGurr adopted his Statutory Declaration dated 22 August 2023.27 Affidavits sworn for the Applicant’s criminal proceeding were also available.28 Mr McGurr said he has been a solicitor for about 46 years and provided legal services to the Applicant for the last three or four years. This included assisting him with claims from creditors arising from the conduct of his former partner. Mr McGurr said the Applicant was ‘devastated’ after title searches disclosed mortgages were taken over his property using forged signatures. Mr McGurr said the Applicant is an ‘honest and trustworthy man’ who acted ‘out of character’, regrets his isolated conduct, and had sought professional assistance to prevent recurrence.
Other Statutory Declarations
27.The Tribunal has considered three supportive Statutory Declarations from friends of the Applicant who were not called to give oral testimony.29
Respondent’s evidence
28.The Tribunal has considered the RSFIC dated 18 March 2024. Limited cross-examination occurred of each witness during the hearing. In brief closing remarks, Ms Lay relied
25 Exhibit R1, 72-73.
26 Exhibit A1, 3-15, 69-70.
27 Exhibit R1, 92-93.
28 Ibid 94-128; Exhibit R2, 29.
29 Exhibit R1, 74-75; Exhibit A1, 75-77.
predominantly on the RSFIC in contending that insufficient time has passed to establish the Applicant’s good character since his offence.
CONSIDERATION
29.The Tribunal considers the evidence given by the Applicant and his witnesses was honest and forthright.
30.The Applicant’s offence is serious because it involved violence against a domestic partner. He pleaded guilty to this at the earliest opportunity.30 A conviction was not recorded and a CRO imposed, which the Applicant satisfactorily completed. Corrective Services NSW refer to a CRO in the following terms:
‘Courts can use the Conditional Release Order to deal with first time and less serious offences where the offender is unlikely to present a risk to the community.
…
The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system…’.31
31.The Tribunal considers the Applicant’s conduct is at the lower end of seriousness. It was impulsive, isolated, and received a relatively light punishment when considered against the sentencing options available for violent offending. The only other character-related issue raised by the Respondent is the Applicant’s response to a character question in his citizenship application. The Applicant’s unchallenged evidence is that he misunderstood the question because it refers to convictions and conditional liberty orders that were not apposite to his circumstances. He nevertheless acknowledges personal responsibility for information submitted in his name. The Tribunal notes English is not the Applicant’s first language and accepts he did not intentionally try to conceal his offending or engage in material deception when responding to this question.
32.The evidence discloses the Applicant’s enduring moral qualities are reflective of a hardworking, talented, and community-oriented person, who has established a successful business. Persuasive evidence was heard from character witnesses who know him well,
30 Exhibit R2, 23-26.
31 New South Wales Government, ‘Conditional Release Orders’, Corrective Services NSW (Web Page, updated 11 May 2023) < to an honest, trustworthy, and charitable person. Except for an isolated and impulsive outburst some three years ago, the Applicant has lived a law-abiding and productive life here during the last 16 years. The Tribunal accepts his unchallenged contention that the discovery of financial fraud by a former intimate partner is contextually relevant to his conduct, which was out of character.
33.The Applicant is remorseful for his past conduct and has undertaken a program of relationship counselling to strengthen his emotional resilience. The Tribunal accepts he has learned lessons and made positive changes founded on self-reflection.
34.During his residence in Australia the Applicant has overwhelmingly behaved in an ethical manner commensurate with the rules and values of Australian society. There is no evidence he has been dishonest, untrustworthy, or financially irresponsible. He has shown commendable initiative and entrepreneurship in building a successful business that employs many people in Australia and overseas.
CONCLUSION
35.The Applicant’s conduct on 4 August 2021 and mistake in his citizenship application weigh against his application. These isolated factors, however, do not outweigh the aggregate of positive qualities and good conduct he has displayed during his last 16 years in Australia. The Tribunal is satisfied the Applicant is currently of good character.
DECISION
36.It follows that the reviewable decision is set aside and substituted with a decision that the Tribunal is satisfied of the Applicant’s good character pursuant to s 21(2)(h) of the Act.
I certify that the preceding thirty-six
(36) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC
……………[sgd]……………………. Associate
Dated: 30 April 2024
Dateofhearing: 24 April 2024 Applicant’sAdvocate:
Mr Min Guo
SolicitorsfortheApplicant:
Elit Lawyers by McGirr & Snell
Advocate for the Respondent:
Solicitors for the Respondent:
Ms Felicidade Lay
Minter Ellison Lawyers
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