Long and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 530
•29 June 2016
Long and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 530 (29 June 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3697
Re
Peov Long
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 29 June 2016 Date of written reasons 25 July 2016 Place Brisbane The decision under review is affirmed.
.......................[sgd]............................................
Deputy President Dr P McDermott RFD
CATCHWORDS
CITIZENSHIP – whether applicant is of good character – applicant had previously committed offences – applicant had made false statements – decision affirmed under review
LEGISLATION
Australian Citizenship Act 2007
(Cth), s 21(2)(h)
Domestic and Family Violence Protection Act 1989(Qld), ss 9, 20
Domestic andFamily Violence Protection Act 2012 (Qld)
CASES
Ghamraoui and Minister for Immigration and Border Protection
[2016] AATA 254
Shi v Migration Agents Registration Authority(2008) 235 CLR 286
Re Pochi and Minister for Immigration and Ethnic Affairs(1979) 2 ALD 33
Da Wei Zheng v Minister for Immigration and Citizenship(2011) 55 AAR 94
Irving v Minister for Immigration, Local Government and Ethnic Affairs(1996) 68 FCR 422
Re Lachmaiya and Department of Immigration and Ethnic Affairs(1994) 19 AAR 148
SECONDARY MATERIALS
Australian Citizenship Instructions (1 July 2014)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
25 July 2016
ORAL DECISION
29 June 2016
INTRODUCTION
Mr Peov Long (“the applicant”) has applied to the Administrative Appeals Tribunal to review a decision the delegate of the Minister for Immigration and Border Protection (“the respondent”) to refuse his application for Australian citizenship by conferral. The application was refused and document T2 in the T documents contains the decision record. At page 15 of the T documents it is apparent that the decision was refused on the basis that the application did not satisfy paragraph 21 (2) (h) of the Australian Citizenship Act 2007 (Cth) (“the Act”) which concerns good character.
BACKGROUND
The applicant was born in 1970 and is a citizen of Cambodia. He arrived in Australia as the holder of a temporary tourist visa in 1998 using a false French Passport, in a name of Chim Boun Chau.
On 11 August 2000 he applied for partner migration and was granted a bridging visa.
In 2002, he was convicted and sentenced to 12 months in prison in the Brisbane Magistrates Court for the offences of:
(a)Two counts of imposition upon a public authority of the Commonwealth with a view to obtain a benefit; and
(b)Four counts of furnishing a document containing false information with a view to obtaining a benefit.
He was realised from prison after serving three months upon entering into a recognizance of $2000 to be on good behaviour for 30 months. On the 4 January 2007, he was given a permanent spouse visa.
There are a number of matters that I should mention. In October 2009 the Federal Magistrate’s Court ordered the applicant pay his ex-wife $7480 for her legal costs incurred in the property settlement proceeding. This has not been paid. The applicant has also committed quite a number of traffic offences:
(a)In November 2001 he committed the offence of drunk driving with a blood alcohol content of 0.140.
(b)He was convicted of drink driving with a blood alcohol content of 0.088 on 6 November 2009. On that occasion, he was also convicted of driving without due care.
There have been quite a number of other traffic offences. Significant recent offences include:
(a)On 27 August 2013 the applicant committed the offence of drink driving with a blood alcohol content of 0.148;
(b)On 26 September 2013 he committed the offence of driving whilst disqualified or restricted. For that his licence was suspended for 2 years; and
(c)In January this year he was convicted of a further traffic offence.
Other matters of concern relate to his child support obligations:
(a)On 10 January 2016 the child support agency intercepted more than $11000 (eleven thousand) from the applicant’s tax return for unpaid child support owed to Ms Sarom Fall; and
(b)On 4 March 2016 there was an existing child support debt of about $4650, although that debt was paid before the hearing.
Another matter of concern relates to the domestic violence order that was made against the applicant. On 10 May 2012, the applicant’s ex-wife sought a protection order against him under the Domestic and Family Violence Protection Act 1989 (Qld). On 11 May 2012 the Magistrate’s Court of Queensland made a temporary protection order against Mr Long. On 12 July 2012 the Magistrate’s Court of Queensland made a protection order against the applicant is Ms Fall’s favour.
Relevant events in the citizenship application were:
(a)On 11 June 2015 the applicant’s Application for Australian Citizenship by conferral was refused by a delegate of the Minister and I’ve referred to that document in T2; and
(b)On 21 July 2015 the applicant applied to this Tribunal to review the Minister’s delegate’s decision.
ISSUE FOR DETERMINATION
The primary issue for the Tribunal to determine is whether the applicant was of good character at the time of the Minister’s decision on the application. Section 21(2)(h) of the Act provides that the applicant cannot be approved to become an Australian citizen if he was not of good character at the time of the Minister’s decision which is 11 June 2015.
Having regard to the remarks of Kirby J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 301, the terms of s 21(2)(h) of the Act provide a statutory “warrant” (to use the terminology of Kirby J) for considering the state of the evidence as at the time of the decision of the delegate. If I am incorrect in this view, the parties did not contend that there was any material difference if the Tribunal had to consider the state of the evidence as at the date of my decision.
CONTENTIONS
The applicant’s contention is that he is a person of good character. His contention was supported by character references in the form of statutory declarations and letters.
The applicant also says that the domestic violence order was made at a time he did not have legal representation. There have been cases though where he has sought legal advice in the past and that is clear from the statutory declaration that was lodged and referred to earlier today.
I accept that the applicant is an active member of the Cambodian community and has assisted people in that community. He states that he contributed to Australia in his working life and is hard working. Whilst he is not employed at present he anticipates that he will be able to get employment soon.
The respondent contends the applicant was not of good character at the time of the Minister’s decision. The respondent points to a number of matters:
(a)The domestic violence order that has been made;
(b)The criminal convictions that have occurred in relation to breach of migration laws;
(c)The fact that there has been fraudulent use of a tax file number; and
(d)The fact that there has been a situation where there has been, over a 16 year period, quite serious history of breaches of Australian traffic laws. There have been 12 offences against Australia traffic laws.
The respondent contends that limited weight should be attributed to the statutory declarations that were lodged and those persons who gave evidence and supported the declarations. It is fair to say that two of those persons were quite frank in conceding under cross examination that they did not think the applicant was of good character when they were told his traffic history and other matters. It is also contended that the references do not actually disclose the previous history of the applicant.
CONSIDERATION
Section 21 (2) of the Act provides that:
A person is eligible to become an Australia 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.
There has been some discussion about the applicable standard of proof that is relevant in such an application as this. The Minister’s representative referred to the case of Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33.
Perhaps a more recent decision that I can refer to is the decision of Deputy President Forgie in Da Wei Zheng v Minister for Immigration and Citizenship (2011) 55 AAR 94 (at 103), where Deputy President Forgie explained that the standard of proof is on the balance of probabilities.
Good Character
The Act does not define the expression “good character”. The expression was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148 when reviewing a decision made under the former s 180A of the Migration Act 1958 (Cth). Deputy President McMahon stated (at 154-155):
The Macquarie Dictionary defines character as
“1. the aggregate of qualities that distinguishes one person or thing from others;
2. moral constitution, as of a person or people;
3. good moral constitution or status;
4. reputation;
5. good repute;
6. an account of the qualities or peculiarities of a person or thing.”
In assisting the Minister to determine whether a person has a good aggregate of
qualities, as distinct from a bad one, regard should be had to the structure and
purpose of the legislation.
In Da Wei Zheng v Minister for Immigration and Citizenship, Deputy President Forgie remarked (at 133):
It would seem, then, that the authorities are drawing attention to a person’s ability to know what society considers good, right and proper and to conduct him or herself in a manner that accords with society’s values.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Lee J of the Full Court of the Federal Court remarked (at 431):
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 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…
Davies J remarked (at 427-428):
The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of “good character” requires the exercise of a value judgment. There are no precise parameters which distinguish “good character” from “bad character”. Although, in general, “good character” can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision…
I am required to have regard to the evidence before the Tribunal to make a “value judgment” of whether the applicant is of good character at the time of the decision of the delegate. The Australian Citizenship Instructions (“the Instructions”) provide some guidance as to the matters that I should consider in determining whether the applicant was of good character.
Employment
Employment is an important matter for me to consider.
I believe the applicant has made a contribution to society through his employment and I accept the submission from his advocate that, in removing asbestos, he has actually ensured the safety of Australians. It is dangerous work. It is work that could, if he is not wearing the right equipment, severely damage the health of the applicant.
Since he has arrived in Australia, the applicant has actually worked quite hard. To his credit he was able to buy a house, a home, for his family. And that would not be easy for someone who arrived here without any assets at all. So in that respect, that is quite a credit to him and he is obviously still trying to obtain employment which is certainly to his credit.
He is unemployed at the moment, I do not draw an adverse inference from this because the type of work he does is contract work for a limited term and he has to travel around Australia and find that work where he can. So that is certainly to his credit.
Criminal History
When I look at the Instructions, it is certainly clear that I have to have regard to the criminal history of the applicant in determining if he is of good character. Chapter 10.3.4 of the Instructions states that an applicant who is of good character would “respect and abide by the law in Australia and other countries”. And one of the referees who gave evidence before me today used that actual phrase, “would respect and abide by the law in Australia and other countries”.
Guidance is provided by chapter 10.5.2, which lists the factors which might indicate that the applicant is not of good character. The Instructions note here that:
If the applicant has committed an offence, was it serious or minor. Serious offences include, but are not limited to:
- crimes of violence (such as murder, manslaughter, assault, sexual assault, domestic violence, armed robbery, negligent or reckless driving occasioning injury or death)
…
- other offences incurring prison sentence of 12 months or more.
Minor offences include:
- shoplifting
- traffic offences which have not been included in a criminal record
- offences which do not lead to a conviction or a sentence.
Whilst the applicant has not been convicted of a crime of violence, there has been an order made under the Domestic andFamily Violence Protection Act 1989 (Qld), which has since been superseded by the Domestic andFamily Violence Protection Act 2012 (Qld).That order is a matter of concern.
I have outlined in my reasons above the various orders that have been made under the former Domestic and Family Violence Protection Act 1989. The fact that there has been a final order made is, I regard, significant.
Under s 20 of the former Domestic and Family Violence Protection Act 1989, the Court had power to make an order to protect a person with a domestic relationship against domestic violence.
The Court could act under s 20 of that Act. Section 20 provided:
(1) A court may make an order against a person for the benefit of someone else (the other person) if the court is satisfied that—
(a)the person has committed an act of domestic violence against the other person and a domestic relationship exists between the 2 persons; and
(b)the person—
(i)is likely to commit an act of domestic violence again; or
(ii)if the act of domestic violence was a threat—is likely to carry out the threat.
Whilst the order that was made by the Court was made without admissions, the Court nevertheless had to be satisfied of those matters in s 20 of the Domestic and Family Violence Protection Act 1989 before making an order. And in making an order, the Court was required to consider a matter on the balance of probabilities under s 9 of that Act.
What is important here is whether it is appropriate for me to go behind the order that has been made. The applicant has disputed that there was domestic violence. I have been guided by what Deputy President Forgie said in Da Wei Zheng v Minister for Immigration and Citizenship (at 134) where, in referring to convictions, she said:
It is not my task to ascertain the precise facts of the offence. I cannot go behind the convictions themselves and question whether they were properly reached.
Similarly here, it is not appropriate for me to go behind the order made by the Court and question whether in fact the order was properly made. Therefore, I must accept that the applicant has actually committed an act of domestic violence which is a serious matter.
False Statements in Previous Migration Claims
What is also important here is that there have been a number of false statements made by the applicant in current and previous migration applications.
Honesty in making statements is certainly indicative of good character. In Re Lachmaiya and Department of Immigration and Ethnic Affairs, Deputy President McMahon stated (at 155-156):
These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.
There have been false statements made in dealing with immigration authorities. In fact, there has been a history of false statements:
(a)It started when he made his application for visitor visas in false names. It happened in 1994, he used the name Ngyuen;
(b)Then he made an application on the basis of a contrived marriage with his sister in 1995;
(c)In 1997 he made an application to visit Australia for tourism in the name of Lim, that was refused;
(d)In 1997 he made another application to visit Australia under the name of Lim that was refused;
(e)In October 1997 he made another application for tourism in the name of Lim. That was initially granted and then cancelled; and
(f)In 1998, he first entered Australia as the holder of a temporary TR676 tourist visa, using a false French passport, in the name of Chim Boun Chau.
Now, the offences, all that history, has been explained by his advocate on the basis that the applicant had to get out of Cambodia because of the circumstances and the danger he faced. But what has concerned me is what has happened after he sought Citizenship by conferral in 2014. In November 2015 he made what I regard as another false statement to the immigration authorities: he claimed that he was in a de facto relationship with Ms Sokha for the purposes of her application for a short stay visitor visa.
There is a statement, a certificate, that was provided in support of that application, which states:
We both really co-exist in the same residence as spouse without legal marriage but we are acknowledged by our parents and relatives
The evidence of the applicant in this regard has, I believe, has been rather inconsistent. In evidence before this Tribunal he stated that he has been in a de facto relationship for 9 years with Ms Monika Kep. Today I was told in argument that they were boyfriend and girlfriend.
If that is the case, previous statements from the applicant and Ms Kep that he has been in a de facto relationship are really quite incorrect. His letter from 29 April 2016 to the AAT says:
I currently have a partner Monika Kep and a 15 month old child who live with me. Monika also has three children from a previous relationship who live us and that I support. We have been in a relationship for approximately 9 years.
Ms Kep, who also wrote a letter to the Tribunal actually asserts in her letter, “I have been in a de facto relationship with Mr Peov Long for approximately 9 years”.
I regard the application that he made on 20 November 2015 to sponsor Ms Sokha for a short stay visitor visa was actually falsely made.
The fact that the applicant made that false declaration while this citizenship process was still under review is a matter of concern and actual surprise to me, because in Ms Sokha’s visa application he is claiming to be in a de facto relationship with her, whilst in the present application he is claiming to have a de facto relationship with someone entirely different: Ms Kep.
One matter of concern to me whether there has been an acceptance of responsibility of what has happened here. I must consider whether the applicant has accepted responsibility for his actions.
In the recent decision of Ghamraoui and Minister for Immigration and Border Protection [2016] AATA 254 Member Professor McCallum AO explained at [15] that mitigating factors include “whether the person has accepted responsibility and shown remorse for their conduct”.
Certainly mitigating factors are important here. But, I do not accept that there are any mitigating factors here.
Traffic History
One matter of concern to me in endeavouring to make an assessment of good character is this extensive traffic history of 16 years.
This is not just a case of a person who has had an isolated instance of drink driving. If a person has made one mistake in the past, that can be understood. But there have been a number of cases where the applicant has committed offences of drink driving.
I was told that there was stress that caused the offence that occurred when he was convicted in November 2009.
But the history of serious drink driving is a matter of grave concern to me because it puts the safety of the public at risk.
But there are some other traffic offences that the applicant has, and under the Instructions, minor traffic offences are treated differently. But the fact that he has continued to drive whilst under the influence of alcohol is a matter of concern. He did this in 2001, 2009, and 2013. In 2013 he was also convicted of driving whilst disqualified.
These are matters of concern because if the applicant drives whilst under the influence of alcohol, that puts the safety of the public at risk and in one of the offences involving drink driving he was convicted also of driving without due care.
So his traffic history reflects adversely on my assessment of good character.
The advocate for the applicant says that a number of people in the community have got traffic offences or have been given tickets, but this repeated drink driving whilst under the influence of alcohol is concerning.
What is also concerning is that there has been no evidence before me indicating that the applicant has endeavoured to rehabilitate himself or check this pattern of behaviour by stopping the use of alcohol, by getting involved with alcoholics anonymous, or by seeking help from the community.
Child Support Obligations
I am also concerned by the evidence before me that the applicant has not complied with his child support obligations.
CONCLUSION
My conclusion is that I affirm the decision of the Minister’s delegate.
I am not satisfied that the applicant was of good character at the time of the decision of the Minister’s delegate or such later times such as the date of this decision.
I have formed an adverse conclusion as the character of the applicant by reason of the domestic violence orders that have been made, his consistently false statements to immigration authorities, including his most recent false statement that was made in November 2015, and by the traffic history involving a number of repeated offences of drink driving with no attempts at rehabilitation.
I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD .................[sgd]..................................................
Associate
Dated 25 July 2016
Date(s) of hearing 16/05/16, 29/06/16 Advocate for the Applicant Kenneth Duong Advocate for the Respondent Melissa de Jongh
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