Nguyen and Minister for Home Affairs (Citizenship)
[2019] AATA 998
•27 May 2019
Nguyen and Minister for Home Affairs (Citizenship) [2019] AATA 998 (27 May 2019)
Division:GENERAL DIVISION
File Number(s): 2017/6936
Re:Michael Nguyen
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:27 May 2019
Place:Sydney
The decision under review, being the decision made by the Respondent on 2 November 2017 to revoke Mr Nguyen's Australian citizenship, is affirmed.
...........................[sgd]............................
Deputy President J W Constance
CATCHWORDS
CITIZENSHIP – application for review of decision to revoke Applicant’s Australian citizenship – where Applicant committed serious breaches of Australian Citizenship Act 2007 (Cth) and Migration Act 1958 (Cth) – where Applicant not otherwise of good character – whether contrary to public interest for Applicant to remain an Australian citizen – whether discretion not to revoke citizenship should be exercised – importance of maintaining integrity of visa and citizenship programs – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
CASES
Bijai Prasad and Minister Assisting the Minister of Immigration, Local Government and Ethnic Affairs [1993] AATA 209
Kleeman and Minister for Immigration and Border Protection [2017] AATA 875
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
O’Sullivan v Farrer and Another (1989) 168 CLR 210
TRHL v Minister for Immigration and Border Protection [2015] AATA 803Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
1989 Convention on the Rights of the Child
REASONS FOR DECISION
Deputy President J W Constance
27 May 2019
INTRODUCTION
Mr Nguyen is a citizen of Vietnam and, between 24 March 2010 and 2 November 2017, was also a citizen of Australia. On the latter date the Minister for Immigration and Border Protection revoked Mr Nguyen’s Australian citizenship.
In revoking Mr Nguyen’s citizenship, the Minister was satisfied that it was contrary to the public interest for Mr Nguyen to remain an Australian citizen and that it was an appropriate exercise of his discretionary power conferred by the Australian Citizenship Act 2007 (Cth).
On 21 November 2017, Mr Nguyen applied to the Tribunal for review of the Minister’s decision. For the reasons which follow, the decision under review will be affirmed.
Unless stated otherwise, findings of fact in these reasons are based on the evidence of Mr Nguyen. I am satisfied of the facts found on the balance of probabilities. At the commencement of the hearing, Mr Nguyen’s representative informed me that his client agreed with the documentary evidence of his immigration and criminal history.
BACKGROUND
Mr Nguyen was born in Vietnam. His birth name is Nguyen Van Khuong.[1]
[1] Exhibit R1, supplementary section 37 documents, at 45.
Mr Nguyen first entered Australia in 1999 as the holder of a student visa issued in the name Manh Chinh Nguyen. At the time he travelled on a Vietnamese passport issued in the same name.[2]
[2] Exhibit R1,section 37 documents, at 23.
In July 2000, while in Australia, Mr Nguyen applied for a further student visa using the name Manh Chinh Nguyen. As part of this process he was granted a bridging visa.
On 11 December 2000, Mr Nguyen's application for a student visa was refused. As a result, his bridging visa expired on 15 January 2001. On that date he became an unlawful non-citizen.[3] He continued to reside in Australia.
[3] Migration Act 1958 (Cth), ss 14-15.
On 24 April 2002, Mr Nguyen (under the name Manh Chinh Nguyen) appeared in the New South Wales Local Court charged with shoplifting goods of a value of less than $2000 on 17 February 2002, for which he was convicted and directed to enter into a bond to be of good behaviour for 12 months.[4]
[4] Exhibit R1, supplementary section 37 documents, at 135.
In September 2002, Mr Nguyen was arrested by Queensland Police and charged with fraud and property offences. He was found guilty of these offences in the Magistrates Court on 22 October 2002. He entered into a bond to be of good behaviour and no convictions were recorded.[5]
[5] Exhibit R1, supplementary section 37 documents, at 84.
As Mr Nguyen was an unlawful non-citizen, he was placed in immigration detention in Queensland until his assisted departure from Australia on 25 October 2002.[6]
[6] Exhibit R1, supplementary section 37 documents, at 84.
Upon his departure Mr Nguyen became subject to the following re-entry exclusion conditions:
a. Manh Chinh NGUYEN was subject to a three year exclusion period as a result of overstaying his original student visa;
b. Manh Chinh NGUYEN was subject to exclusion until 9 November 2009 for his unpaid Commonwealth debt associated with detention costs, totalling $655.00; and
c. Manh Chinh NGUYEN was subject to exclusion, and is currently subject to exclusion, due to character concerns regarding the fraud and property offences committed in 2002.[7]
(Emphasis in original.)
[7] Exhibit R1, supplementary section 37 documents, at 84.
On 13 November 2004, while residing outside Australia, Mr Nguyen lodged an application for a spouse visa using his birth name, Van Khuong Nguyen. On the basis of the information provided in that application, he was granted a provisional visa on 25 April 2006. Mr Nguyen entered Australia on 22 May 2006 on a Vietnamese passport in his birth name, and was granted a permanent spouse visa on 20 March 2007.
On 1 July 2009, Mr Nguyen applied for Australian citizenship using the name Van Khuong Nguyen. With his application, he lodged a copy of a New South Wales Births, Deaths and Marriages Change of Name Certificate. The certificate was dated 29 July 2009 and recorded a change of name from Van Khuong Nguyen to Michael Nguyen.[8]
[8] Exhibit R1, section 37 documents, at 41.
On the basis of the information supplied by Mr Nguyen, Australian citizenship was conferred upon him on 24 March 2010.[9]
Mr Nguyen's criminal and driving record other than convictions under the Migration Act and Australian Citizenship Act
[9] Exhibit R1, section 37 documents, at 43.
Mr Nguyen's New South Wales Police Force Criminal History Bail Report[10] reveals the following criminal history, which he does not dispute:
[10] Exhibit R1, supplementary section 37 documents, at 135-136.
Offence date
Court date
Offence
Sentence
17/02/2002
24/04/2002
Shoplifting value ≤ $2000
12 month good behaviour bond
01/04/2010
24/03/2016
Cultivate prohibited plant ≥ commercial quantity
16 month intensive correction order
Mr Nguyen’s driving record also reveals a significant offending history:[11]
[11] Exhibit R1, supplementary section 37 documents, at 143-144.
Offence date
Offence
Penalty
17/02/2009
Not comply with conditions of provisional licence (not display P signs) as required
$189
16/07/2009
Disobey traffic lights – camera detected
$338
10/07/2013
Exceed speed limit by not more than 10 km/h whilst driving a motor vehicle (camera detected)
$106
12/12/2014
Not stop at red arrow – camera detected
$415
19/08/2016
Exceed limit by not more than 10 km/h – heavy vehicle in average speed detection zone
$341
07/12/2016
Fatigue driving (solo driver under std hours) – critical risk
$500
09/06/2017
Exceed speed limit by more than 10 km/h but not more than 20 km/h whilst driving a coach or heavy vehicle
$455
As a result of the driving offences committed on 12 December 2014, 19 August 2016, 7 December 2016 and 9 June 2017, and the resultant accumulation of demerit points, Mr Nguyen’s unrestricted class HR licence was suspended for the period 17 August 2017 to 16 November 2017.
Mr Nguyen’s convictions under the Migration Act and Australian Citizenship Act
On 2 February 2017, Mr Nguyen was convicted in the New South Wales Local Court of the following offences to which he had pleaded guilty:
·that, on 12 November 2004, he delivered, or caused to be delivered, to an officer a document containing false information in breach of subsection 234(1)(c) of the Migration Act;[12] and
·that, on 1 July 2009, he made false statements or representations in breach of subsection 50(1) of the Australian Citizenship Act:[13]
The first of the two charges related to Mr Nguyen’s application for a spouse visa; the second to his citizenship application.
[12] Exhibit R1, supplementary section 37 documents, at 89.
Subsection 234(1)(c) provides: “A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non‑citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non‑citizen (including that person himself or herself) to remain in Australia … deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.”
[13] Exhibit R1, supplementary section 37 documents, at 90.
Subsection 50(1) provides: “A person commits an offence if … the person makes, or causes or permits to be made, a representation or statement; and … the person does so knowing that the representation or statement is false or misleading in a material particular; and … the person does so for a purpose of or in relation to this Act.”
The Agreed Statement of Facts filed in the Local Court included the following information in relation to the charges against Mr Nguyen:
Michael NGUYEN Offence 1: False or misleading statement (Migration Act)
19.On 13 November 2004 Michael NGUYEN, submitted a 309/100 Combined Spouse Visa Application to DIBP, by way of Migration form 47SP, lodged at the Australian Embassy in Hanoi.
20.The document contained a declaration at Question 100 that “I declare that the information I have supplied in this application is complete, correct and up-to-date in every detail.”
21.This declaration was signed by the Applicant, in the name Van Khoung NGUYEN.
22.The information on the application however, conveyed a false or misleading impression of the applicant, Van Khuong NGUYEN, and the circumstances of his. In particular, it included the following false or misleading information:
Question
Answer
Qn 9
Have you or any dependent family members (migrating with you or not) previously been to Australia, held or currently hold a visa for travel to Australia?
No
Qn 14
Other names you are, or have been, known by (including name at birth, previous married names, aliases)
N/A
Qn 22
Have you been married before?
No
Qn 66
When and where did you and your partner first meet?
Date: 09/00
Place: Vietnam
Qn 79
Have you … ever:
· Been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?
No
· Been removed or deported from any country (including Australia)?
No
· Had any outstanding debts to the Australian Government or any public authority in Australia?
No
Qn 81
In which countries have you lived for 12 months or more during the last 10 years?
See below at [23]
Q100
I declare that the information I have supplied in this application is complete, correct and up-to-date in every detail
Signed
23.In response to question 81, the applicant stated:
Country
Dates lived there
Last permanent address in that country
Vietnam
From 1994 to present
Khu Dan Cu So 2, Nam Hai ward, Hai An District, Hai Phong City
24.In connection with the application, Michael Nguyen also furnished a “Report to the Australian Embassy in Hanoi” in which he set out the details of his relationship with Linda Lien NGUYEN.
25.This report was written in Vietnamese and signed in the name Van Khuong NGUYEN on 28 October 2004. A certified English translation was also furnished.
26.In that report, he falsely stated the circumstances in which he met Linda Lien NGUYEN, stating:
“My family and Linda’s have known each other for several years. In 2000, Linda came to Vietnam to visit her family and relatives. We went out once with some friends and relatives. At that time, we were just friends like any others, but didn’t have any special sentiment.”
27.On the basis of the information in the application made in the name Van Khoung NGUYEN and in the sponsorship form submitted by Linda Lien NGUYEN, the temporary component of Van Khoung NGUYEN’s spouse visa application was granted on 25 April 2006.
28.Michael NGUYEN subsequently entered Australia in the name Van Khoung NGUYEN on 22 May 2006.
29.Van Khoung NGUYEN was granted a permanent residence spouse visa on 20 March 2007.
…
Michael NGUYEN Offence 3: False or misleading representation (Citizenship Act)
31.On 1 July 2009 Michael NGUYEN, using the name Van Khuong NGUYEN, made an online application for Australian citizenship by way of Form 1300tEC.
32.In support of the application, Michael NGUYEN submitted a copy of his Change of Name Certificate, showing his name change from Van Khoung NGUYEN to Michael NGUYEN.
33.Michael NGUYEN signed a declaration at question 39 stating “I declare that the information I have supplied in this application is complete, truthful and correct in every detail.”
34.The information on the application however conveyed a false or misleading impression of the applicant and included the following false or misleading information:
Question
Answer
Qn 3
Have you been known by any other names?
Blank
Qn 12
Have you ever held an Australian visa other than your current permanent residence visa?
· Date your first Australian visa was granted (if known)
25 April 2006
Qn 28(a)
Have you been convicted of, or found guilty of, ANY offences overseas or in Australia? (Include all traffic offences which went to court including offences declared in your permanent residence application and any ‘spent’ convictions)?
No
Qn 39
I declare that the information I have supplied in this form is complete and correct in every detail
Electronically signed
35.On the basis of the information in Michael NGUYEN’s application, Australian citizenship was conferred upon him on 24 March 2010.
(Errors in original.)
During the police investigation into these offences it was discovered that Mr Nguyen had used three different names.[14]
[14] Exhibit R1, supplementary section 37 documents, at 87-88.
MR NGUYEN'S EVIDENCE
Mr Nguyen provided two statutory declarations, made 27 October 2016[15] and 26 July 2017[16], and gave evidence at the hearing.
[15] Exhibit R1, supplementary section 37 documents, at 81-82.
[16] Exhibit R1, section 37 documents, at 44-47.
Mr Nguyen explained his decision to apply for a student visa in 1999 in the name Manh Chinh Nguyen as follows:
My first wife Linda NGUYEN (“Linda”) and I have known each other when we were still young and I madly fell in love with her. I was very heartbroken when she travelled overseas to study because she was my first real girlfriend. Being a young man at the time, I was absolutely convinced that she was the one for me and I would never find love again. I decided to go to Australia to study and to be with Linda. I convinced her brother NGUYEN Manh Chinh to let me use his identity to apply for a student visa and he agreed. In 1999, I arrived in Australia for the first time under his name on a student. At the time, I had been so blinded by love that I did not think about the possibly repercussions of my actions. I was young and immature, looking simply for any means that we would be together again.[17]
(Errors in original.)
When he gave evidence, Mr Nguyen said that he used a false name as an applicant for a student visa to show that his family had the financial means to maintain him as a student, and Mr Manh Chinh Nguyen's family had the means to do this.
[17] Exhibit R1, section 37 documents, at 44.
Prior to making the first application for a student visa, Mr Nguyen forged a passport in the name of Manh Chinh Nguyen and attached his own photograph.
In cross-examination, Mr Nguyen agreed that when he stated in his application for a spouse visa that he and his partner first met in 2000, this was a lie. He denied that his statement that he had not previously been to Australia was a lie as he had resided in Australia previously under a different name. He said also that he stated the Australian visa granted to him in April 2006 was his first because his previous student visa was granted in a different name.
As to his application for Australian citizenship, Mr Nguyen stated in his statutory declaration, in part:
When the application had asked whether I was previously known by a different name, I had declared my birth name NGUYEN Van Khuong. I did not declare, however, NGUYEN Manh Chinh which was the name I used in Australia on the student visa. I did not disclose this because I did not understand in full capacity the legal effect and repercussions of my actions at the time. I had used the name Chinh when I was still a young man, who was naïve and foolish in love. The years after my return to Vietnam, I grew older and wiser and realised that my actions were wrong and has consequences … I was afraid that the Department of Immigration would misinterpret what I had done as a truly criminal act, when in fact it had been an act of desperation to be with the woman I loved. Had I known that not disclosing the name was illegal, I would not have done it. I sincerely regret my actions and am deeply remorseful.[18]
[18] Exhibit R1, section 37 documents, at 45.
Mr Nguyen has two stepchildren from his first marriage and three children aged under 12 years from his second marriage. He provides care and financial support for his children, all of whom reside in Australia. Mr Nguyen remarried in 2017.
Mr Nguyen gave evidence that his Australian citizenship is important to him as it will allow him to travel with his children to visit his parents in Vietnam. He finds it difficult to explain his present situation to his children.
CHARACTER EVIDENCE
Mr Nguyen relied upon several statements from family members and acquaintances in support of his application.[19]
[19] See Exhibit R1, section 37 documents, at 40, 48-49, 50, 58-59, 60-61, and 62-63.
The statements attest to Mr Nguyen’s close relationship with his family members, his caring attitude, and his willingness to assist others. References to the circumstances of Mr Nguyen’s offending are based on information provided, apparently by Mr Nguyen.
I have given these statements due consideration. However, while I accept that Mr Nguyen is now a caring and helpful person who has strong family ties, I do not regard them as having any significant weight in the determination of this application.
LEGISLATION
Section 34 of the Australian Citizenship Act provides, in part:
Citizenship by conferral
(2) The Minister may, by writing, revoke a person’s Australian citizenship if:
(a) the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b) any of the following apply:
(i) the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;
(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);
(iii) the person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud within the meaning of subsection (6);
(iv) the person obtained the Minister’s approval to become an Australian citizen as a result of third‑party fraud within the meaning of subsection (8); and
(c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
…
Migration-related fraud
(6) For the purposes of this section, a person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud if and only if:
(a) at any time, the person was convicted of an offence against:
(i) section 234, 236 or 243, or former section 244 (as in force before its repeal by the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008), of the Migration Act 1958; or
(ii) section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code;
that the person committed at any time before the Minister gave the approval; and
(b) the act or omission that constituted the offence was connected with the person’s entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia.
(7) Subsection (6) does not apply to a person in respect of an offence if the Minister is satisfied that the act or omission that constituted that offence was not in any way (whether directly or indirectly) material to the person becoming a permanent resident.
ISSUES FOR DETERMINATION
It is not in dispute that, on 24 March 2010, citizenship was conferred upon Mr Nguyen and that, as a result, subsection 34(2)(a) is satisfied.
It is also not in dispute that Mr Nguyen has been convicted of an offence against section 50 of the Act in relation to his application to become an Australian citizen. It follows that subparagraph (b)(i) of subsection 34(2) of the Act applies.
In view of the finding in the preceding paragraph, it is not necessary to consider the application of the remaining subparagraphs, though it is not in dispute that subparagraph (b)(iii) is also applicable. Mr Nguyen was convicted of an offence against section 234 of the Migration Act before the Minister gave his approval. Further, the acts and omissions which constituted the offence were connected with his entry into Australia. On the basis of the facts set out and which are not in contention, I am satisfied that Mr Nguyen obtained the Minister’s approval to become an Australian citizen as a result of migration-related fraud.
The following two questions thus remain for determination:
(1)Is the Tribunal satisfied that it would be contrary to the public interest for Mr Nguyen to remain an Australian citizen?
(2)If yes, should the Tribunal exercise its discretion on review to revoke Mr Nguyen's Australian citizenship?
ISSUE 1: IS THE TRIBUNAL SATISFIED THAT IT WOULD BE CONTRARY TO THE PUBLIC INTEREST FOR MR NGUYEN TO REMAIN AN AUSTRALIAN CITIZEN?
The argument on behalf of Mr Nguyen
It was argued on behalf of Mr Nguyen that he has established his life in Australia and that revocation of his citizenship would deny him his right to be part of the Australian community. Further, it would have a significant effect on members of his immediate family who all reside in Australia and who are all Australian citizens. Should Mr Nguyen be required to return to Vietnam his relationship with his families and other members of his community would be detrimentally affected. He would have difficulty adjusting to the social and economic living conditions in his home country.
Mr Nguyen continues to support his two stepchildren who live with their mother in Mr Nguyen’s home, for which they pay only a nominal rent.
Mr Nguyen’s three biological children are all under the age of 12 years. He is supporting this family through child support payments and other non-financial means. He shares the parenting arrangements for these children.
Mr Nguyen’s current partner is not employed and relies on him for financial support.
Mr Nguyen has worked as a truck driver for the past nine years and has paid income tax during that time.
It was argued that the Australian Government has an obligation to consider the interests of the Mr Nguyen’s children under Article 3 of the 1989 Convention on the Rights of the Child.[20] By allowing Mr Nguyen to retain his Australian citizenship, his children would be provided with security. Further, if Mr Nguyen is able to travel overseas with his children on an Australian passport they will be able to identify with their father as an Australian, which is part of their own identities. Mr Nguyen’s childrens’ interests include ensuring their psychological wellbeing.
[20] Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). Article 3 provides:
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”
As to Mr Nguyen’s conduct in applying for a student visa in an assumed name using a forged passport, it was argued that it should be taken into account that he did not continue with this fraud when he applied for a spouse visa. The Australian public would be forgiving and moved to grant Mr Nguyen a second chance to be a productive citizen of Australia. Further, he took the opportunity to correct his past mistakes by using his correct name when applying for Australian citizenship.
It was also put that Mr Nguyen did not endanger the Australian community by reason of his conduct, he is remorseful for his offending, and his remorse should be taken into account. Notwithstanding that his behaviour was criminal, it was not inconsistent with the standards the Australian community expects of its citizens.
Discussion
In Kleeman and Minister for Immigration and Border Protection,[21] this Tribunal considered the content of the term “public interest” as disclosed by the authorities:
43. In O’Sullivan v Farrer and Another[22] the High Court considered the meaning of the words “in the public interest” in legislation other than that before us in this application.
44. Mason CJ, Brennan, Dawson and Gaudron JJ said, in part:
...... the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgement to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”.[23]
45. In McKinnon v Secretary, Department of Treasury[24] Tamberlin J cited the above passage from the High Court’s judgement. His Honour referred to “public interest” as follows:
The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where ‘the public interest’ resides. The ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that ‘the public interest’ can be ascertained and served. In some circumstances, one of more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some context, interest such as public health, national safety, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations.
[21] [2017] AATA 875.
[22] (1989) 168 CLR 210.
[23] (1989) 168 CLR 210 at 216.
[24] (2005) 145 FCR 70 at 75-76.
For the reasons advanced on behalf of the Minister,[25] I am satisfied on the balance of probabilities that it would be contrary to the public interest for Mr Nguyen to remain an Australian citizen.
[25] See Respondent's Statement of Facts, Issues and Contentions dated 27 April 2018 at [28]-[32].
Mr Nguyen has committed two serious breaches of Australian immigration law
In 2004, and again in 2009, Mr Nguyen made deliberately false representations to government officials in connection with the exercise of their statutory duties. On the first occasion, in relation to his right to live in this country; on the second, in relation to his application for the privilege of citizenship.
In sentencing Mr Nguyen for the two offences, Magistrate Curran said, in part:
Obviously the most serious offence is one under the Migration Act which does involve, as has been emphasised by Ms Ibbett upon myself, I am cognizant of this, it involves a border matter, in other words people coming into Australia that should not come into Australia. This is particularly, I suppose, aggravated by the fact that the accused had been originally sent from Australia because of certain character materials and gained entry back into Australia by misleading information which was included in his application to the Embassy in Hanoi.
…
I have already indicated during the course of addresses that it seems to me, particularly in these times of heightened security, that the integrity of the Migration Act has to be strictly attended to, and the Court has to send messages to people that if they breach the provisions in the Migration Act and gain entry to Australia based upon false and misleading information, that is going to be dealt with very seriously by the Court. However, obviously one has got to take into account the circumstances surrounding the motivation.[26]
The Court noted that Mr Nguyen did not plead guilty until the day of the hearing.
[26] Exhibit R1, section 37 documents, at 18-19.
I agree with the submission made on behalf of the Minister that the offences represented “a prolonged deception of this country’s immigration authorities over a number of years and it is unlikely that the deception would have ended but for a third party’s discovery of the deception.”[27]
[27] Respondent's Statement of Facts, Issues and Contentions dated 27 April 2018 at [29].
The effect of Mr Nguyen’s conduct on his applications for a spouse visa and for citizenship
I am satisfied that had it not been for the deception practised by Mr Nguyen it is likely he would have been refused a spouse visa in 2004. As a result, he would not have enjoyed the privilege of residing in Australia for at least some time thereafter.
Further, had he made full disclosure to the relevant authorities when he applied for citizenship it is likely that his application would have been refused. For a person to be eligible to become a citizen under the Australian Citizenship Act the Minister has to be satisfied that the applicant “is of good character at the time of the Minister’s decision on the application”.[28] In view of Mr Nguyen's initial entry into Australia on the basis of a false declaration and with the assistance of a forged passport, together with his subsequent deception of Australian authorities by his applications for a spouse visa and for citizenship, as well as his criminal convictions, I am satisfied that it is unlikely the Minister would have been satisfied as to Mr Nguyen’s good character.
[28] Australian Citizenship Act 2007 (Cth), s 21(2)(h).
The importance of maintaining the integrity of the visa and citizenship programs
Control of the entry of persons into Australia and the grant of the privilege of citizenship are of great importance to the Australian community. The public has a real interest in maintaining the integrity of our system of laws generally, and particularly so in relation to the matters raised by this application.
I accept the contention on behalf of the Minister that Mr Nguyen’s “offences are such as to undermine the integrity of the visa and citizenship programs, which operate on the basis that applicants will be truthful and not provide false or misleading documents. It would be contrary to the public interest for the applicant to be permitted to benefit from his conduct in undermining these programs.”[29]
[29] Respondent's Statement of Facts, Issues and Contentions dated 27 April 2018 at [31].
Consideration of Mr Nguyen's character
In considering whether it would be contrary to the public interest for Mr Nguyen to remain an Australian citizen, it is relevant to consider whether I can be satisfied that Mr Nguyen is a person of good character.
In Bijai Prasad and Minister Assisting the Minister of Immigration, Local Government and Ethnic Affairs,[30] the Tribunal viewed the question of character as inhering in the determination of the “public interest” in the context of section 21 of the Australian Citizenship Act 1948 (Cth), which was in substantially similar terms to section 34 of the present Act. The Tribunal said, in part:
Together the two Acts [the Australian Citizenship Act and the Migration Act] are designed to ensure, so far as is possible, that only persons of good character with an adequate knowledge of the responsibilities and privileges of Australian citizenship are granted citizenship. It is of paramount importance, therefore, that information relevant to the character of a person applying for citizenship which is provided to the respondent is true and given in a manner which is not likely to impede the proper assessment of that person’s character.[31]
[30] [1993] AATA 209.
[31] [1993] AATA 209 at [39].
In TRHL v Minister for Immigration and Border Protection,[32] the Tribunal said:
The granting and revocation of citizenship involve different tests which are contained in different provisions of the Citizenship Act. That said, the notion of the “public interest” has its source in the eligibility criteria set out in s 21 of the Citizenship Act, which criteria include the requirement that a person is of “good character” at the time of the Minister’s decision on the citizenship application. “Good character” being a reference to the “enduring moral qualities” of a person … Consequently, the question of “good character” is relevant and important in determining whether it is contrary to the “public interest” that a person remain an Australian citizen under s 34(2) of the Citizenship Act. The seriousness and nature of the Applicant’s criminal offences, their duration and the Applicant’s sustained denial of guilt are indicative that the Applicant is not of “good character”. The Applicant’s “enduring moral qualities” are indicative that the Applicant is not of “good character”.
[32] [2015] AATA 803 at para.46.
Some of the relevant factors for consideration in assessing an applicant’s character under the Australian Citizenship Act were referred to by the Tribunal in Zheng and Minister for Immigration and Citizenship:[33]
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
[33] [2011] AATA 304 at [120].
In addition to the matters relating to his applications under the Australian Citizenship Act and the Migration Act to which I have referred, Mr Nguyen has committed the serious drug offence of cultivating a prohibited plant equal to or greater than the commercial quantity. He has also committed seven traffic offences.
Having listened to Mr Nguyen give evidence, I am satisfied that he still does not appreciate the seriousness of his offending, despite his apparent expressions of remorse. When pressed by the Minister’s representative in cross-examination Mr Nguyen referred to his use of an alias as a justification for his belief that he had not been deliberately deceptive when dealing with the authorities. At times he was evasive in giving his answers. He denied that he deliberately withheld information when he applied for a spouse visa.
Conclusion
Having considered the matters referred to I am satisfied that it would be contrary to the public interest for Mr Nguyen to remain an Australian citizen.
ISSUE 2: SHOULD THE TRIBUNAL EXERCISE ITS DISCRETION ON REVIEW TO REVOKE MR NGUYEN'S AUSTRALIAN CITIZENSHIP?
The opening words of subsection 34(1) of the Act confer upon the Minister (and the Tribunal on review) a discretionary power as to whether or not to revoke Mr Nguyen's citizenship, despite being satisfied that it would be contrary to the public interest for him to remain a citizen.
The argument put on behalf of Mr Nguyen and set out in paragraphs 37-44 above included contentions relating to both issues.
I accept the argument that it is in the interest of those of Mr Nguyen’s children who are minors that their father be able to accompany them to visit their grandparents in Vietnam. I take into account that the ex-citizen visa which Mr Nguyen was taken to have been granted upon cessation of his citizenship will not permit him to return to Australia should he choose to travel overseas.[34]
[34] Migration Act 1958 (Cth), s 35(3).
I do not accept the argument that revocation of Mr Nguyen's citizenship will deprive the children and other family members of his financial and other support. He will be able to remain in Australia on an ex-citizen visa. What, if any, action will be taken in respect of that visa is a matter of speculation and not a matter for consideration in this application.
Taking into account all of the above considerations, I am not satisfied that the discretion conferred upon me should be exercised in Mr Nguyen's favour. Nothing in the arguments put on behalf of Mr Nguyen persuades me that the public interest in having Mr Nguyen's citizenship revoked should be disregarded.
CONCLUSION
The decision under review, being the decision made by the Respondent on 2 November 2017 to revoke Mr Nguyen's Australian citizenship, will be affirmed.
I certify that the preceding 66 (sixty six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
........................................................................
Associate
Dated: 27 May 2019
Date of hearing: 3 July 2018 Solicitors for the Applicant: VietAust Lawyers Solicitors for the Respondent: Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
-
Jurisdiction
4
5
0