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

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.
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.  
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.  
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
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. 
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.  
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen and Minister for Immigration and Border Protection (M...

Details

AGLC: Nguyen and Minister for Immigration and Border Protection (Migration) [2017] AATA 1157
Case: [2017] AATA 1157
Decision Date: 26 July 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Nguyen against the refusal of his application for Australian citizenship by a delegate of the Minister for Immigration and Border Protection. The refusal was based on Mr. Nguyen failing to satisfy the "good character" requirement under the relevant legislation, due to his criminal record. The Administrative Appeals Tribunal was tasked with reviewing this decision.

The primary legal issue before the Tribunal was whether Mr. Nguyen met the character requirements for Australian citizenship, notwithstanding his history of criminal conduct. This involved assessing the genuineness of his claims of rehabilitation and changed behaviour, and determining whether his past actions and associations were so significant as to preclude him from being considered a person of good character.

The Tribunal considered evidence presented by Mr. Nguyen, including references and his own testimony regarding his remorse and desire for citizenship. While acknowledging some aspects of his evidence, such as his community involvement and church attendance, as potentially genuine but lacking precision or independent verification, the Tribunal found his explanations for his criminal conduct, particularly an offence in 2012, to be unconvincing and disbelieved his account of his presence at a drug deal. The Tribunal concluded that Mr. Nguyen's past offending, the seriousness of many offences, their frequency, his traffic record, and his continued association with drug users as late as 2012 meant he had not demonstrated he was a person of good character. Consequently, the Tribunal affirmed the delegate's decision to refuse the citizenship application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

I am prepared, however, to accept as genuine, and give some weight to the references provided by Ms Vo and Ms Morgan. CONSIDERATION 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. 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. 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. 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. Generally, the applicant sought to so diminish his responsibility for his criminal conduct that it became virtually a denial of any criminal responsibility. 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). 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.