Nguyen and Minister for Immigration and Multicultural and Indigenous Affairs
[2006] AATA 17
•12 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 17
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/475
GENERAL ADMINISTRATIVE DIVISION ) Re CUONG XUAN NGUYEN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date12 January 2006
PlaceSydney
Decision The decision under review is affirmed.
………………………………………
Senior Member, Mrs Josephine Kelly
CATCHWORDS
CITIZENSHIP – application for grant of Australian Citizenship – is Applicant a person of good character – criminal convictions - prison sentences - no drug offences since 1999 – no prison sentences since 1999 – failed to fully disclose criminal offences on application forms – Applicant not a person of good character – decision affirmed.
LEGISLATION
Australian Citizenship Act 1948 s 13(1)(f)
CASELAW
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Kakar and Minister for Immigration [2002] AATA 132
Twilley and Minister for Immigration [2004] AATA 1213
Fenn v MIMIA [2000] AATA 931
Ruxton v MIMIA [2004] AATA 1057REASONS FOR DECISION
12 January 2006 Senior Member, Mrs Josephine Kelly Proceedings
1. Mr Cuong Xuan Nguyen (“Mr Nguyen”) applied for the Grant of Australian Citizenship on 4 November 2002. He was refused citizenship on 16 March 2005 on the ground that he did not satisfy the good character requirement due to his criminal history and general behaviour.
Issues
2. The issue before the Tribunal is whether Mr Nguyen is a person of good character.
Background
3. Mr Nguyen is a Vietnamese citizen who was born on 24 April 1968 in Saigon. Before coming to Australia he was living in a refugee camp in Malaysia at Palau Bidong, with his older and younger brothers. They had left Vietnam in June 1983, travelling to Malaysia in a small boat with 50 people on it. His parents remained in Vietnam.
4. He arrived in Australia from Malaysia on 26 October 1983. He was 15 years old and completed Year 10 of school after he arrived. He has been living in Australia for 22 years and has never left. His mother was sponsored by Mr Nguyen and his brothers to come to Australia and arrived in 1993. His father died in Vietnam in 1985.
5. After Mr Nguyen finished school he worked as a machine operator for Mackay Rubber for two years until the company shut down.
Criminal History
6. At T7, Mr Nguyen’s criminal history is recorded. This is a brief summary.
· 12 offences of possession of drugs from 1988 to 1999.
· 13 use of drug offences from 1988 to 1999.
· 3 Trafficking of drug offences from 1996 to 1999.
· Over 50 offences in relation to theft, burglary and unlawful possession.
· 8 occasions where he failed to answer bail.
· 1 assault offence and 1 resisting arrest offence.
· 5 breaches of community service orders.
· 5 driving offences in Victoria.
· 2 driving offences in New South Wales - a drink driving offence in 2002 and a speeding offence in 2004.
7. Mr Nguyen has been sentenced to prison on 14 occasions from 1992 to 1999. They included a 7 month sentence in 1997 and two 6 month sentences in 1995. It is difficult to determine how long Mr Nguyen spent in prison but it appears to be between four and five years.
8. The offences in Victoria occurred over an 11 year period from 1988 to 1999. He moved to Sydney in 2000. The last drug related conviction was over five years ago in 1999. All of Mr Nguyen’s offences were committed as an adult.
9. In relation to the driving offences committed in New South Wales he received a $600 fine and 3 months disqualification of his license for the drink driving offence, and received a fine of $200 for the speeding charge. Both of these matters went to court.
Evidence of Mr Nguyen
10. Mr Nguyen gave oral evidence in English with the assistance of an interpreter from time to time. Two statutory declarations by him were also tendered (Exhibits A1 and A5). He said that he began having problems with the law when he associated with bad friends and became involved in drugs around 1989, after he lost his job. He was around 21 years of age when he began taking drugs. He believes that his problems with the law occurred because he was taking drugs. He has not taken drugs since 1998 when he went to hospital and underwent rehabilitation for approximately one month. His last drug related offence was possession of heroin which Mr Nguyen said had happened in 1998 but that he had to go to court in 1999. He has not had any drug related convictions since 1999.
11. In his statutory declaration dated 20 June 2005 (Ex. A1) he declared that he only recalls being in prison three times: in 1995 for six months, 1996 for four months and 1997 for 7 months.
12. Since moving to Sydney he said he has become a changed man. He met his wife in the year 2000 and they were married on 20 April 2003 at a Church in Yagoona (Exhibit A1). He writes that they are currently trying to have children and that his wife has had two miscarriages. There is a specific treatment cycle agreement (STCA) from IVF Australia (Exhibit A1) which confirms that he and his wife are undergoing IVF treatment.
13. Mr Nguyen has established his own business “Mai.Cuong Pty Ltd”. He has his own truck and specialises in receiving and delivering cargo from Port Botany to the Sydney Metro and rural areas. The business is doing well and sometimes he hires casual workers for the business. There were no contemporaneous documents supporting the employment of casual employees.
Evidence of Hau Thi Nguyen (Sister in Law)
14. Mrs Hau Nguyen, Mr Nguyen’s sister-in-law, gave oral evidence at the hearing with the assistance of an interpreter and her statutory declaration was also in evidence (Exhibit A1). Mrs Hau Nguyen has known Mr Nguyen for twenty years. They first met in Australia when they were both residing in a hostel, immediately after Mr Ngyuen had arrived in Australia. Mr Nguyen lived with her when they were all living in Victoria. She declares that he is “honest, caring and helpful towards any one in need.” She did not know that he did not declare all of his criminal convictions in his application for Australian Citizenship. She declares that his last drug conviction was in 1997 and when told that his last conviction was in 1999 she said that she probably would know that.
Evidence of Dr Jakovac
15. Dr Jakovac provided two written statements dated 23 September 2005 and 17 June 2005.
16. In her report of 17 June 2005, (Exhibit A1), she writes that Mr Nguyen is a quite pleasant man and that he thinks positively about his future life and his family’s life. Dr Jakovac is aware of his past drug offences but she has found him to be of good character. She supports his being granted Australian Citizenship.
17. In her report of 23 September 2005, (Exhibit A5), Dr Jakovac writes that Mr Nguyen has been a patient of hers since 2001. She writes that he is a “pleasant, good character, fair man.” She states that she is aware that he has had a bad past but that she would not change her opinion of him based on that past. He is a self-employed truck driver and works long hours. She writes that she is supporting his application for permanent residency in Australia.
Application Forms
18. Mr Nguyen first applied for citizenship on 30 June 1987 and this application was approved, however Mr Nguyen did not proceed with the application (T2, p6) so citizenship was not granted. In his statutory declaration he states that he did not attend the ceremony so his citizenship was revoked.
19. On 4 November 2002, he applied again for citizenship and completed the application form (T5) (“the first application”). Under the heading of “Character” (T5 p 27) he was asked “Have you been convicted of, or found guilty of ANY offences? (include all traffic offences which went to court)”. He ticked “Yes” and in answer the further question requiring details declared that he had been fined $600 at Liverpool Court on 26 January 2002 for drink driving. No other offences were listed.
20. In his statutory declaration Exhibit A1 he stated that he thought the question related to offences in New South Wales only. When he was read the question during the course of the hearing, he agreed that that the question was not confined to the state in which you live but was for all offences that have occurred in Australia. He also said that he did understand that he was applying for Australian citizenship and not just citizenship for New South Wales. He denied that he did not put down his Victorian offences because he did not think that they would be checked.
21. When he had an interview with an officer regarding this application he did not inform the officer that he had convictions in Victoria.
22. There were two other questions which he did not answer correctly on this first application. He ticked the circle “No” in answer to the question “(b) Have you ever been confined in a prison or psychiatric institution by order of a court made in connection with criminal proceedings?” He also did not disclose that he had a matter pending against him. He ticked the circle “No” in answer to the question “(e) Are you aware of any proceedings pending against you for any offence, including proceedings by way of appeal or review?” The date of the speeding charge was 12 June 2002 (T7, p 43), which was before he completed the first application of citizenship. This was a proceeding that was pending against him. He said that he did not understand this question and marked down what he remembered.
23. When he completed the questions on the application form he said that he did not understand them 100%. No-one gave him any help and no one checked that his application for citizenship was accurate. The only other person to view the application was Dr Jakovac who witnessed his proof of identity.
24. On 18 February 2003 he completed another application for grant of Australian Citizenship (T6) (“the second application”). He explained that this happened when he went to a DIMIA office to ask about the progress of his application. He was told he had to fill out another form. On that occasion in answer to the question about convictions he ticked the box “Yes” and provided details of two traffic offences involving drink driving in 2002 and speeding in 2003, and offences of “using drug, trafficking drug, handle stolen good” in 1995 (which were committed in Victoria). He indicated that he had a six month prison sentence for those offences. There was no mention of any other drug offences or any other time in prison although details were required of “ALL occurrences”. Curiously, in answer to the question whether he had ever been confined to prison he ticked the box “No”, although he did disclose his 6 month prison sentence in response to a different question.
25. After he lodged his first application, he received a telephone call from an officer of DIMIA who told him he had to check his criminal record and then called him back and told him that he had a long criminal record in Victoria. That was when he realised that he must write down on his application his Victorian offences.
26. On the second application he felt that could not remember all of his offences as he had been on drugs at the time and his memory was affected. He said that he answered the question to the best of his memory. The officer at the counter when he completed this second form did instruct him that he had to disclose all of his criminal convictions in Australia. Mr Nguyen thought that he would get a second interview and that he could then explain all of his offences. In the interview he was going to explain further his offences in Victoria. He would explain further as it is a bit of a long story. Mr Nguyen thought that the officer had a copy of his criminal record already. However, Mr Nguyen did not get to see another officer regarding his application for citizenship.
Documents
27. An Australian Business Register entry indicates that his business has been registered since 10 March 2004. There is also a certificate of registration of a company Mai.Cuong Pty Ltd which commenced on 21 April 2004 (Exhibit A1).
28. Mr Nguyen’s income tax return for the 2004 and 2005 tax years (Exhibits A2 and A4) demonstrate that he and his business are doing well.
Law
29. The respondent contends that Mr Nguyen has not meet the requirements of s 13(1)(f) of the Australian Citizenship Act 1948 (“the Act”) which provides:
Grant of Australian citizenship
(1) Subject to this section, the Minister may, in the Minister's discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
…
(f) the person is of good character; …
30. In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, Davies J said (at 87):
“It should be observed that the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: .I do not suggest that, in the context, “good character” refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision maker will take that into account.”
31. Justice Lee J stated in the same case (at p 94):
“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 while the latter is a review of subjective public opinion.”
32. In Kakar and Minister for Immigration [2002] AATA 132, Deputy President Wright observed at [13]:
“Good character” within the meaning of the legislation refers to the enduring moral qualities of the person being assessed and involves a comparison between his attributes, and the reasonable and ordinary standards of behaviour and social conduct to be found within the Australian community.”
33. In Twilley and Minister for Immigration [2004] AATA 1213, the Tribunal stated at [27] that:
“On balance, the Tribunal must decide about Mr. Twilley’s behaviour and reputation at the time of the present decision."
34. This Tribunal is not bound by Australian Citizenship Instructions, however, I take into account the guidance given by 5.4 of those instructions which relates to “good character (T4).
35. Ms Quinn who appeared for the Minister sought to draw an analogy from Fenn v MIMIA [2000] AATA 931 where DP Breen said “it will take longer than 5 years for there to be sufficient evidence that his character has been restored to the level required for a grant of citizenship.” She argued that Mr Nguyen would have to have no criminal offence for more than 5 years to obtain citizenship. Mr Poynder who appeared for Mr Nguyen distinguished this case on the basis that the offences committed in Fenn were much more serious.
36. Ms Quinn also relied on Ruxton v MIMIA [2004] AATA 1057 where an Applicant failed to disclose her criminal convictions, which was held to reduce her credibility and her enduring moral qualities. Mr Poynder argued that the Tribunal must not refuse citizenship because of carelessness but would where it believed that the Applicant has knowingly failed to disclose the offences. That is, in this case I would accept that Mr Nguyen had been careless rather than knowingly failed to disclose the offences.
Consideration
37. There are two matters that I must consider to decide whether Mr Nguyen is a person of good character. They are his criminal convictions and the answers he provided in his first and second applications for Australian Citizenship.
Criminal History
38. Mr Nguyen has not had any drug related criminal convictions since 1999. He got involved with drugs in about 1988, when he had his first convictions. He was about 21 years old. His father had died in 1985 and his mother did not come to Australia until 1993. His older and younger brothers were in Australia. He missed his family in Vietnam. He has moved from Victoria to New South Wales and to his great credit, has “turned his life around”. Since moving to Sydney he has married and taken on the responsibility of trying to have a family using IVF. He has also begun his own business as a delivery driver which appears to be doing well. Given those changes in his life and the lapse of time since his last criminal conviction for a drug related offence, his criminal convictions alone would not dissuade me from finding that Mr Nguyen is a person of good character.
Application Forms
39. What is of more concern to me is Mr Nguyen’s failure to disclose frankly his criminal convictions in his first and second applications. Mr Poynder argued that I would be satisfied that when completing the first application Mr Nguyen did not know that he had to provide his Victorian offences. He completed the forms himself. He did not understand what the questions required and thus gave incorrect answers. Mr Poynder also submitted, and it was conceded by Ms Quinn, that a person would not be able to recite all of their criminal offences. He also referred to Mr Nguyen’s expecting to be interviewed in relation to his second application which would have allowed him an opportunity to give a further explanation. I also take into account that he arrived in Australia when 15 and only completed year 10. I conclude that his literacy is of a moderate standard at best, which may would explain his failure to answer the question about time in prison in the second application form although disclosing he had served a 6 month sentence in answer to another question.
40. The questions about convictions and prison are relevantly the same in both application forms and appeared under the heading “Character”. They were:
(a) Have you ever been convicted of, or found guilty of, ANY offences? (Include all traffic offences which went to court)
(b) Have you ever been confined in a prison or in a psychiatric institution by order of a court made in connection with criminal proceedings?
(c) …
(e) Are you aware of any proceedings pending against you for an offence, including proceedings by way of appeal or review?
41. The questions were to be answered by ticking circles in the first form and boxes in the second for “yes” or “no” alongside each question. The question continued:
If you answered ‘Yes’ to any of the questions ( … ) give details of ALL occurrences.
Include the following:
. the name of the court
. the offence
. the sentence received
. relevant dates
42. Mr Nguyen could have sought assistance with the completion of the forms but did not. He acknowledged that the question did not ask for convictions only in New South Wales. When he had an interview with the officer regarding his first application he did not disclose his Victorian convictions. At the time he filled out his second application, I find that Mr Nguyen knew that he had to disclose his criminal history in Victoria.
43. In all the circumstances, I am not persuaded Mr Nguyen is a person of good character. I do not accept that the incorrect answers in the application forms resulted from carelessness. His disclosure of a driving conviction in New South Wales in his first application without reference to his criminal history in Victoria was disingenuous. He has had lengthy involvement with the criminal justice system, including a relatively long period of imprisonment. He also failed to list his pending proceedings. His disclosure of some offences and one prison sentence in his second application was not forthright. He said he believed the Department had his record and on the other hand said he thought he would have an interview where he could have explained it. Those two statements are inconsistent. If his memory were faulty and he believed that the Department had his records, he could have written “see criminal history from Victoria” or if he thought he would have an interview, he could have stated that he wished to discuss it at the interview. He did not. He gave a misleading answer.
Decision
44. For the reasons set out above, the decision under review is affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 14 December 2005
Date of Decision 12 January 2006
Counsel for the Applicant Mr N. Poynder
Solicitor for the Applicant MY.T. Nguyen Solicitos
Solicitor for the Respondent Phillips Fox
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