Masikip and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 1331

Masikip and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1331 (22 May 2018)

Division:GENERAL DIVISION

File Number(s):2017/3282      

Re:Angelica MASIKIP

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION              

Tribunal:Senior Member Antoinette Younes

Date:22 May 2018

Place:Sydney

The Tribunal affirms the decision to refuse the application for Australian citizenship by conferral.

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

Senior Member Antoinette Younes

CATCHWORDS

CITIZENSHIP – application for conferral of Australian citizenship – refusal of citizenship – applicant does not satisfy good character requirement – whether applicant of good character – unlawful non-citizen – lengthy period of unlawfulness – consideration of Citizenship Policy – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(1), 21(2), 21(3), 21(4), 21(5), 21(6), 21(7), 21(8), 24(1), 24(1A)

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

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016, Chapter 11

REASONS FOR DECISION

Senior Member Antoinette Younes

22 May 2018

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) on 9 May 2017 to refuse the application for Australian citizenship by conferral, which the applicant lodged on 11 April 2016.

2. The delegate refused the application on the basis that the applicant did not satisfy relevant requirements of the Australian Citizenship Act 2007 (Cth) (the Act). Specifically, the delegate found that the applicant did not meet the requirements of s 21(2)(h) relating to character.

3. For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.

RELEVANT LEGISLATION

1. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. In accordance with s 24(1) of the Act, the Minister must in writing, approve or refuse to approve the person becoming an Australian citizen. 

2. Subsection 24(1A) of the Act, provides that the Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under one of the ss 21(2), (3), (4), (5), (6), (7) or (8).

3. Subsection 21(2) of the Act provides that:

   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.

Citizenship Policy

1. The term ‘good character’ is not defined in the Act. In Irving v Minister for Immigration, Local Government and Ethnic Affairs the Full Court held that:

   “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…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.”[1]

   [1] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at pp. 431-432.

2. The Citizenship Policy (the Policy) has been adopted by the Minister to guide decision-makers in relation to citizenship applications. The Policy provides guidance to decision-makers in regards to interpretation, exercise of power, and operational instructions relating to the Act. As a decision-maker, the Tribunal is required to give regard to, and apply Policy unless there are cogent reasons not to do so.[2] The Tribunal is satisfied that in this case, there are no reasons not to follow the Policy.

   [2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at p. 640.

3. Chapter 11 of the Policy refers to the decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs[3] and reinforces that the expression ‘good character’ should be taken to be used in its ordinary sense and that the phrase ‘enduring moral qualities’ encompasses characteristics which have been demonstrated over a very long period of time, being able to distinguish right from wrong, behaving in an ethical manner, and conforming to values of the Australian society.

   [3] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at pp. 431-432.

4. The Policy stipulates, amongst other things, that the good character requirement looks at the ‘essence’ of the person and that behaviour is a manifestation of one’s essential characteristics, including being truthful, not practising deception or fraud with the Australian authorities, not engaging in violent behaviour or causing harm through conduct.

5. The Policy goes on to say that a person of good character would, amongst other things, not evade immigration control, respect and abide by the law in Australia and other countries, be truthful and not practise deception in their dealings with the Australian government, or other governments and organisations.[4]

   [4] Citizenship Policy at p. 147.

6. The Policy states that the assessment about whether an applicant is of good character requires the consideration of an aggregate of qualities and that decision-makers should place more weight on significant offences. The Policy indicates that in weighing up the various factors, decision-makers must not apply their own personal standards but must refer to community standards. Specifically, the Policy stipulates that in weighing up the character decision, decision-makers ask themselves:

   ·would a person of good character have behaved the way the applicant did

   ·what is there to demonstrate that the applicant has upheld and obeyed the law

   ·has the applicant behaved in accordance with the Australia’s community standards

   ·does the applicant share Australia’s democratic beliefs and respect its rights and liberties

   …

   A decision-maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time considered to be ‘lasting’ or ‘enduring’ depends on the merits of each case, but in most cases will go back prior to any visa application.[5]

   [5] Citizenship Policy at pp. 149-150.

BACKGROUND

1. The applicant is a citizen of the Philippines where she was born on 6 August 1960.  She arrived in Australia in 1985 on a Tourist visa which expired on 17 February 1986. For the following 22 years, the applicant held a number of bridging visas but for the substantial part of that period, she was an unlawful non-citizen. On 7 December 2009, she was granted permanent residence through the Subclass 151 Special Eligibility - Former Residence Scheme. She is currently the holder of a Subclass BB155 (permanent) visa granted on 11 December 2015. On 11 April 2016, she applied for Australian citizenship.[6]

   [6] Exhibit E – Annexure 1 p. 1.

2. The central issue in the case is whether the applicant is of good character having particular regard to the lengthy history of unlawfulness and working in Australia without permission. 

FINDINGS AND REASONS

·     Does the applicant meet the requirements of s 21(2)(h)?

1. The applicant’s migration history[7] shows that she was unlawful during the following periods:         

   ·From 17 February 1986 until 1 September 1994 (eight years and over six months).

   ·From 30 September 1997 until 23 February 1998 (over 4 months).

   ·From 15 March 1998 until 26 August 2008 (ten years and over five months).

   ·From 28 January 2009 until 30 January 2009 (two days).

   ·From 4 August 2009 until 13 August 2009 (nine days).

   [7] Exhibit E – Annexure 1 p. 1.

2. In total, the applicant was an unlawful non-citizen for almost 20 years. 

3. In a Statutory Declaration of 13 July 2016[8], the applicant stated that at the relevant time, she was aware of the opportunity to lodge an application to remain in Australia on compassionate and humanitarian grounds but they were misled by a former lawyer who unbeknown to the family, was engaged in unauthorized migration work. She stated that the lawyer did not lodge their application and by the time they realized the situation, amendments to the legislation in 1989 had removed the humanitarian and compassionate grounds for residency.

   [8] Exhibit F p. 17.

4. The applicant gave evidence that when she came to Australia in 1985, her intention was to visit Australia but due to the upheaval in the Philippines, she was advised not to return. In response to the respondent’s representative’s question, the applicant stated that she was aware that she was required to have a valid visa in order to remain in Australia, although she said she was not fully aware of the visa requirements. She explained that at that time she had three children and believed that the lawyer was helping them. She stated that she thought that he had lodged an application because they had paid him money and gave him documents to do so. She confirmed that the lawyer never told her that the visa had been approved and that she did not take any steps to check if she had a valid visa. She believed that it was the lawyer’s fault that she remained in Australia unlawfully. In oral evidence, the applicant accepted that she had worked in Australia without work rights for a substantial period of time. The Tribunal observes that a number of the applicant’s bridging visas contained no work conditions.[9]

   [9] Annexure E pp. 4 and 6.

5. The Tribunal has carefully considered the applicant’s explanations. The Tribunal is of the view that the applicant’s explanations fail to account for lengthy periods of unlawfulness and working without permission. The Tribunal is neither persuaded nor convinced by those explanations. The Tribunal found the applicant’s evidence in relation to an identified lawyer to be problematic and demonstrates that the applicant is not taking responsibility for the fact that she was unlawful for approximately 20 years. On the evidence before it, the Tribunal has serious doubts about the existence of any such lawyer but even if true, that would not account for the lengthy period of unlawfulness.

6. In written submissions[10], the applicant’s representative contended that the applicant has always been honest in her dealings with the Department and she made herself available. He further submitted that the applicant is of good character and is able to distinguish right from wrong. He referred to the fact that she has no criminal charges or convictions and she has paid taxes in Australia. The Tribunal has given regard to the fact that the applicant does not have any convictions and that she has paid tax in Australia.

   [10] Exhibit A.

7. The Tribunal is concerned about the submissions by the applicant’s representative, that the Department knew at all times of the applicant’s status of unlawfulness. When asked on what basis those submissions were made, the representative noted that by virtue of the fact that the applicant was applying for various visas, the Department should have or could have taken action. The Tribunal does not agree with those submissions and finds them unpersuasive; those submissions are essentially suggesting that it is up to the authorities to take action in relation to a person conducting themselves in an unlawful manner. The Tribunal is of the view that the responsibility is on the individual to act lawfully at all times. The authorities are not always resourced or in a position, or should be expected to act. The applicant confirmed in the course of the hearing that she had never directly approached the authorities about her unlawfulness.

8. The applicant has provided character references[11] in support of her citizenship application. None of those references specifically discusses the applicant’s adverse migration history and consequently they do not refer to whether the authors of the references maintain their opinion in light of that history.  Accordingly, the Tribunal has decided to give those references limited weight. The Tribunal is also mindful that the Policy stipulates that “decision-makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application”.[12] Although the Tribunal gives regard to that Policy expectation, the Tribunal has carefully examined the references that are provided by the applicant. The Tribunal is of the view that the references have inherent problems, including not mentioning the applicant’s migration history which is fundamental to the issue before the Tribunal.

   [11] Exhibit F pp. 18-21.

   [12] At p. 155.

9. The applicant has provided evidence which the Tribunal accepts that members of her family including her husband have been granted citizenship. The applicant expressed concerns at the fact that they were granted citizenship and she was not. The Tribunal appreciates the importance of consistency in decision-making, however the Tribunal is determining whether the applicant is of good character. Decisions about other members of her family are not directly relevant to this question.

10. In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant has breached Australia’s immigration laws. The total period of that breach is significant – for almost 20 years. She has also worked without having permission to do so. On balance, the Tribunal is satisfied that the applicant has shown lack of insight in relation to the seriousness of her migration history. The lack of insight as well as the lack of remorse and acknowledgement of any wrongdoing are inconsistent with being of good character.

11. For those reasons and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant is of good character and therefore she does not meet the requirements of s 21(2)(h).

12. In light of those conclusions, and for the stated reasons, the Tribunal affirms the decision to refuse the application of Australian citizenship by conferral.

DECISION

1. The Tribunal affirms the decision to refuse the application for Australian citizenship by conferral.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Antoinette Younes

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

Associate

Dated: 22 May 2018

Date(s) of hearing:	10 May 2018
Solicitors for the Applicant:	Diaz & Diaz Lawyers
Solicitors for the Respondent:	Sparke Helmore Lawyers