Nguyen and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1157

Nguyen and Minister for Immigration and Border Protection (Migration) [2017] AATA 1157 (26 July 2017)

Division:GENERAL DIVISION

File Number(s):      2016/5181

Re:Xuan Vinh Nguyen

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Griffin

Date:26 July 2017

Place:Sydney

The decision under review is affirmed

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

Senior Member Griffin

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – application for Australian Citizenship – application refused by delegate of the Minister on character grounds - whether applicant meets the “good character” requirement – applicant has a criminal record – applicant not of “good character” – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21

CASES

Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132

SECONDARY MATERIALS

The Australian Citizenship Policy 

REASONS FOR DECISION

Senior Member Griffin

26 July 2017

1. The decision under review is the refusal by a delegate of the Respondent of an application for Australian citizenship made by the Applicant under s 21 of the Australian Citizenship Act 2007 (Cth) (the Act). The delegate refused the application because she was not satisfied that the applicant was of 'good character' under s 21(2)(h) of the Act.

2. Mr Xuan Vinh Nguyen (the applicant) is a 45 year old national of Vietnam who first arrived in Australia on 26 October 1983, and is currently the holder of a BB-155 Resident Return visa which was granted on 26 March 2015. 


3. Since 1988, the applicant has been charged with 120 criminal offences, ranging from drug trafficking, burglary, common assault, and breach of bail. The applicant was convicted of a large number of these offences, many of which resulted in imprisonment. 


4. In addition, since 2001, the applicant has committed 21 traffic offences. The applicant’s last traffic offence was committed on 21 February 2016: disobey traffic lights, for which he received a $425 fine.

   HISTORY OF THE APPLICATION

5. On 7 January 2016, the applicant applied for Australian citizenship by conferral under section 21(2) of the Act. The applicant declared his offences on the application form.


6. In a procedural fairness letter dated 26 April 2016, the applicant was invited to respond to or comment on the issue of whether he was of good character, in light of his offences. The applicant provided the following documents in response to the letter on 24 May 2016:

   ·A statutory declaration of the applicant dated 24 May 2016. The applicant states that he is “matured and responsible for the future”, and “must respect and obey the laws in Australia”.

   ·A written statement of a friend, Jenny Vo, dated 18 May 2016. Ms Vo states that she has known the applicant for over 5 years, is aware of the applicant’s criminal record and traffic offences, and the applicant has expressed remorse for what he has done.

   ·A copy of the applicant’s driving record, obtained from Roads and Maritime Services NSW. 


7. On 25 August 2016, a delegate refused to grant the applicant Australian citizenship because the applicant did not satisfy section 21(2)(h) of the Act, which provides:

   (2)         A person is eligible to become an Australian 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.

8. The applicant filed an application for review on 23 September 2016.

9. In his application to the Tribunal, the applicant did not provide any reasons for his application, stating ‘Please find the attached’. Along with the decision of the delegate, the applicant provided a copy of an application to the Bankstown Local Court to quash his habitual offender declaration dated 3 September 2012. Handwritten notes of the local Magistrate are also attached to the application.

10. On 14 December 2016, the applicant provided the following evidence:

    ·A letter from Vicki Morgan of the Cabramatta Youth Team dated 3 August 2012

    ·An undated letter to the applicant from USANA Health Services

    ·An undated certificate of participate awarded to the applicant for participating in ‘Keeping Children Safe’

    ·A certificate of participation awarded to the applicant in 2010 for completing a parenting course.

11. A summons was issued to the Commissioner of Police on 25 November 2016, and documents were produced on 21 December 2016. A further summons was issued to Roads and Maritime Services NSW on 16 December 2016, and documents were produced on 11 January 2017.

    ISSUES

12. The sole issue is whether the Tribunal is satisfied that the applicant is of good character under s 21(2)(h) of the Act.

13. The Respondent contends that the applicant is not of good character pursuant to section 21(2)(h) of the Act.

14. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission, and the degree of rehabilitation of the offender: Kakar and Minister for Immigration and Multicultural Affairs (2002) AATA 132.

15. The applicant has an extensive criminal history of a large number of offences. The applicant has committed numerous criminal offences since 1988, including theft, assault, and drug possession. The applicant’s criminal record shows that the applicant has been sentenced to imprisonment 25 times since 1988 for periods ranging from 14 days to 20 months, with the most serious offence being the supply of a prohibited drug, for which the applicant received 20 months imprisonment (15 months non-parole). The applicant was last sentenced on 24 May 2012 for entering enclosed land without lawful excuse, for which he received a $200 fine.

16. The applicant’s driving record indicates that the applicant has committed 22 traffic infringements since 2001. The last offence, failing to obey traffic lights, occurred on 21 February 2016. This offence was committed 6 weeks after the applicant lodged his application for Australian citizenship.

17. The applicant provided a statutory declaration dated 24 May 2016 in which he stated that he was matured and responsible for the future, and must respect and obey the laws in Australia.

18. The reference of Ms Morgan states that the applicant has claimed that he has been abstinent from drugs for 9 years, presents well, is polite and compliant, and continues to maintain a positive attitude.

19. Chapter 11 of the Australian Citizenship Instructions provides:

    An applicant of good character would: 


    Not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding, or driving without licence or insurance)…

20. At hearing, the respondent submitted that:

    ·the applicant committed an extensive number of serious criminal offences, including assault, theft, burglary, larceny, drug possession, supply of a prohibited drug, driving without a licence and driving without insurance

    ·the applicant committed these offences multiple times over a period of 24 years

    ·the applicant’s last traffic offence was committed 6 weeks after making his application for citizenship

    ·on this basis, and in view of the large number of criminal offences and the fact that the last traffic offence committed by the applicant was very recent, the Tribunal should not be satisfied that he is a person of good character.

    CHARACTER REFERENCES

21. The applicant provided a character reference from Jenny Vo in support of his application for citizenship on 18 May 2016. Ms Vo has known the applicant as a friend for over 5 years. The reference acknowledges that Ms Vo is aware of the applicant’s criminal record and traffic offences, and that he has expressed remorse for what he has done. The reference does not indicate whether Ms Vo is aware of the number of criminal offences the applicant has committed, the seriousness of those offences, or the punishment the applicant received by committing the offences.

22. The reference of Ms Morgan dated 3 August 2012, was provided by the applicant on 14 December 2016, does not refer to any knowledge Ms Morgan has of the applicant’s criminal history nor the number of traffic offences he has committed.

23. I am prepared, however, to accept as genuine, and give some weight to the references provided by Ms Vo and Ms Morgan.

    CONSIDERATION

24. Mr Nguyen gave evidence in the proceedings. He said, in effect, that he had reformed, that he was a changed person and that he was desirous of becoming an Australian citizen. And regretted his past behaviour.

25. Good character is not immutable. In the same way a person who exhibits bad character may change with the effluxion of time, with demonstrated changed attitudes and behaviours and by other act or acts which objectively and independently demonstrate the change of character.

26. As part of the evidence of his reformed nature, he provided additional information about his involvement in community activities and affairs, including his involvement with the Police Citizens Youth Club (PCYC) and furthermore, that he often gave assistance to a program run by a police officer, one Mr Kay, speaking to youth about the pitfalls of falling into crime and criminal conduct in general. There was no independent evidence of this by way of any detailed information. Adjournments were given for the purpose of verifying this information and ultimately, the police officer concerned confirmed that, on some limited occasions, Mr Nguyen had provided such a service for the youth of the Cabramatta area. However, it is clear, from the police officer’s evidence, that it was not assistance to the extent to which Mr Nguyen swore. I am prepared, however, to regard this as an innocent exaggeration rather than deliberate untruthfulness on the part of Mr Nguyen. Similarly early in his evidence, he spoke of his involvement in the Catholic Church and his attendance at mass regularly. Although he was unable to name the priest or priests involved and the various parishes to which he said he went. Once again I am prepared to accept this as a lack of precision in his evidence due to the pressure of giving evidence in these proceedings.

27. It was, however, a different matter altogether when he was cross-examined at length about various issues concerning his contact with the police and his past criminal conduct.

28. Generally, the applicant sought to so diminish his responsibility for his criminal conduct that it became virtually a denial of any criminal responsibility.

29. Of some significance is the offence committed in 2012, well after the period he says that he had stopped using drugs (which I note was either 2005 or 2007 depending on the view one takes of material provided by him).

30. Mr Nguyen’s explanation for being found in an enclosed yard was ludicrous. He gave an explanation that although he was present with two other people who were known to the police as being involved in a drug deal, his presence there, with the two of them, was quite coincidental and he was there in their presence for the purpose of relieving himself. I simply did not believe his evidence. Furthermore, I have come to the conclusion that he was associating with two other people dealing in drugs and if he was not supplying, I am at least prepared to accept that he was mixing in the company of people who dealt in drugs. This is entirely contrary to his assertions that he has forsaken those types of activities.

31. In Mr Nguyen’s case, I am not at all satisfied that what he has said in evidence or in material which he has provided demonstrates that he has changed his character. His criminal record also discloses breaches of bail and breaches of other court orders which also evince a lack of concern and respect for court orders.

32. Furthermore, since filing his original application he was convicted, once again, of a driving offence. Although these offences neither singly nor cumulatively have the same mark of dishonour as the criminal offences, nonetheless, the pattern of behaviour demonstrated by the series of driving offences during his time in Australia demonstrates that he has a singular disregard for the safety of himself and others on the road. It demonstrates also a disregard, more generally, for laws which are in operation to protect other citizens and a continuing willingness to place himself outside the rules which govern the behaviour of citizens in Australia.

33. Taking his past offending into account, the seriousness of many offences, which included jail terms, the frequency of his criminal conduct, together with a comprehensive traffic record and the fact that I have found him to have associated with drugs users by as late as 2012, I am not satisfied that he is a person of good character, within the meaning of the Act.

    CONCLUSION

34. I have concluded that the decision of the delegate should be affirmed.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Griffin

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

Associate

Dated: 26 July 2017

Date(s) of hearing:	3 April 2017
Applicant:	In person
Solicitors for the Respondent:	Ms K Gawidziel, Australian Government Solicitor