Long and Minister for Immigration and Citizenship - [2010] AATA 464

Administrative Appeals Tribunal

DECISION AND REASONS FOR THE DECISION [2010] AATA 464
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2009/5388

General Administrative Division )

Re: PEOV LONG
Applicant

And: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

DECISION

TRIBUNAL: Senior Member Bernard J McCabe

DATE: 9 June 2010

PLACE: Brisbane

DECISION:For the reasons given orally at the hearing, the Tribunal affirms the decision under review.
.......................[Sgd].......................
Senior Member

CATCHWORDS

CITIZENSHIP – whether applicant is of good character – applicant granted permanent residence – migration law breaches – drink driving offences – illegal work – character references – unable to be satisfied applicant is of good character – decision affirmed.

Australian Citizenship Act 2007 (Cth), s 21, 24

Crimes Act 1914 (Cth)

Migration Act 1958 (Cth)

REASONS FOR DECISION

18 June 2010

Senior Member Bernard J McCabe

The Tribunal gave oral reasons at the time it affirmed the decision in this case. The respondent has subsequently asked for a written statement of reasons for the decision pursuant to s 28 of the Administrative Appeals Tribunal Act 1975. What follows is based on the transcript of the hearing.
Mr Peov Long is a Cambodian national residing in Australia. He has permanent residency status here but he wishes to acquire Australian citizenship. The Minister for Immigration and Citizenship has rejected his application. The Minister says he cannot be satisfied Mr Long is a person of good character as required under s 21(2)(h) of the Australian Citizenship Act 2007 (“the Act”). That means Mr Long is not eligible to become a citizen, although he retains his permanent resident status. Mr Long has asked the Tribunal to reconsider that decision.
The factual background is as follows. Mr Long was born in Cambodia. He is now 40 years of age. He was a police officer working on the border of Cambodia and Vietnam. He said it was a difficult life. His family endured the hardship of the Pol Pot regime. His father went missing and is presumed dead. One of his sisters migrated to Australia and he wanted to join her in this country.
To that end, Mr Long sought a visa to enter Australia. He was assisted in his application by an agent of some kind. The agent advised Mr Long that he should apply using his sister’s married name rather than his own name. The visa was refused.
Mr Long made four attempts to enter Australia using false names between 1994 and 1997. He also sought a visa on the basis that he was marrying an Australian woman who turned out to be his sister. The marriage was an elaborate sham that was carried out for the benefit of Australian authorities. I suspect he was also breaching Cambodian law when he purported to marry his sister, but I do not have any evidence to that effect in front of me. He finally succeeded in entering Australia when he managed to obtain a French passport through a black market contact. In his evidence before the Tribunal, Mr Long said he was not aware the passport was false, and said he was just using the documents provided to him by his contacts. He admitted he signed the Australian entry card in the name shown on the passport, which was not his name. I am not satisfied he was entirely frank in his evidence about the extent of his knowledge of what he was doing, particularly given that he was a policeman with experience working on the border. I am satisfied from his evidence that on each occasion he sought to enter Australia he knew he was breaching the law and acting improperly in order to achieve his goal of coming to Australia.
After spending a period of time in Australia illegally, he entered into a relationship with a woman. They subsequently married and had three children. On the basis of that relationship, Mr Long applied for a visa in 2000. He was granted a bridging visa. He was granted permanent residence in January 2007. He separated and divorced from his wife in the same year. He does not know where his wife lives with their children, and he only sees the children occasionally.
Mr Long worked illegally for a time before he obtained the bridging visa. Although he initially denied it in his evidence, he subsequently agreed he “borrowed” the tax file number of a friend to overcome the fact he was not supposed to work. He has since been in reasonably consistent employment in a range of occupations, although he has been out of work since the end of 2009. He says he would like to have citizenship so he might be eligible for jobs in the Army or the police. He says he would also like the right to vote.
The Australian authorities caught up with Mr Long’s migration law breaches in 2002. He was convicted of two offences under the Crimes Act 1914 and four offences under the Migration Act 1958. He was sentenced to 12 months in gaol and served three months of that sentence. The sentencing magistrate said the offences were serious and imposed the maximum penalty under the law.
Since he has been in Australia, Mr Long has been convicted twice of drink-driving offences. He has otherwise been crime-free.
Mr Long has been active in the Cambodian Community Association of Queensland Inc. He is an office holder. The president of that association wrote a reference speaking to Mr Long’s good character. I was provided with several other positive references, although they were from close friends and family members. .
I turn now to the legislation. Section 21(2) of the Act sets out the grounds which must be satisfied before a person can be said to be eligible to become an Australian citizen. Section 21(2)(h) says the Minister must be satisfied the applicant “is of good character at the time of the Minister's decision on the application”. Section 24(1A) says the Minister must not approve the person’s application unless he or she is able to satisfy the requirements of s 24.
The question in this case must therefore be: Can I be satisfied Mr Long is of good character? The relevant time for assessing his character is presumably the time of the application given the wording of the section, but nothing has transpired since that time that demands my attention in any event.
The pattern of deliberate breaches of Australian migration laws between 1994 and 1998 raises serious questions about the applicant’s character. Although those offences are not as serious as the examples set out in the Australian Citizenship Instructions, they are still relevant to my deliberations. The Minister says the pattern of conduct is indicative of bad character. The two drink driving offences and the use of someone else’s tax file number to allow the applicant to work illegally are suggestive of an ongoing pattern of disregard for the law. Even if I accord the drink driving offences little weight, the pattern of offending is a serious problem. The applicant’s oral evidence made it clear that he regarded the migration breaches as a necessary in order to achieve his goal of coming to Australia. He felt justified in working when it was illegal for him to do so because, once again, he felt he had a good reason. As a former police officer, he must have known what he was doing.
I acknowledge that individuals from a country with an active black market and corrupt public services might have a different attitude when it comes to lying to officials and paying for favours. But Mr Long was a public official. As a police officer, he must have known that what he was doing was a breach of the law. Yet he felt he was justified in doing it anyway. That pattern of behaviour continued when he reached this country when he worked illegally. It follows that I cannot be satisfied the pattern of offending ceased once the applicant left Cambodia where that sort of behaviour might have been more commonplace.
Having raised that serious question in my mind over the applicant’s character, it remains to be seen whether the applicant is capable of adducing evidence that can set my mind at rest so I might conclude he is of good character after all.
I note the references from friends and family, and from the president of the Cambodian Community of Queensland Inc. I note the applicant’s largely trouble-free record in the last few years. I note he has been working to obtain new skills so that he can improve his position. I note all of the other evidence of his involvement in some community work, and the fact he has met his obligations to his family.
I am not satisfied that evidence, taken as a whole, dispels the question mark over his character that was raised by his offending. In the circumstances, I am unable to be satisfied he is a person of good character. He is therefore ineligible to become an Australian citizen. That is not to say he might not become eligible in due course. If he were to continue his good behaviour over time, the doubts raised by the convictions might fade. But for now, those doubts are all too real. That means the decision under review must be affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: .........................[Sgd]..................................................
Patrick MacDonald, Associate

Date of Hearing  9 June 2010
Date of Decision  9 June 2010
Date of Written Reasons                18 June 2010

Solicitor for the Applicant Ms A Kemenes

Solicitor for the Respondent Ms A Tibell