Nguyen and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship)

[2023] AATA 1105

Nguyen and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2023] AATA 1105 (16 March 2023)

Division:GENERAL DIVISION

File Number(s):      2022/4242

Re:Van Cuong Nguyen

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:16 March 2023

Place:Sydney

The correct or preferable decision is to affirm the decision under review.

............................[SGD]............................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

CITIZENSHIP – whether the good character requirement under paragraph 21(2)(h) of the Australian Citizenship Act 2007 (Cth) is satisfied – relevant law and policy considered – applicant’s background and criminal history considered – character references considered – decision under review affirmed

LEGISLATION

Citizenship Act 2007 (Cth) section 21

CASES

BOY19 v minister for Immigration and Border Protection [2019] FCA 574

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

16 March 2023

BACKGROUND

1. By way of application filed 25 May 2022, the Applicant seeks review of the decision of the delegate of the Respondent dated 6 May 2022, to refuse to grant the Applicant Australian citizenship by conferral. The decision not to grant the Applicant Australian citizenship was made under section 21(2)(h) of the Citizenship Act 2007 (Cth) (the Act), on the basis that the delegate was not satisfied that the Applicant was a person of good character at the time they were making their decision.

2. I note that the Respondent’s Statement of Facts, Issues and Contentions contain a helpful factual summary of this application, much of which is replicated below.

3. The Applicant is a male citizen of Vietnam. He arrived in Australia on 17 July 2013 as the holder of a Student (subclass 573) visa (Student Visa).

4. On 5 December 2015, the applicant married Ms Ly Dan Tam Nguyen.

5. On 30 March 2016, the Applicant made a combined application for Partner (Temporary) (Subclass 820) and Partner (Residence) (Subclass 801) visas on the basis of his relationship with Ms Nguyen.

6. On 29 November 2016, the Applicant’s Student visa was cancelled for breach of condition 8202, because he had not been enrolled in a registered course of study since 6 April 2016. He did not apply for renewal of his Bridging visa until 30 November 2016, causing him to become unlawful for one day and resulting in him being granted a Bridging visa E with no work rights.

7. On 18 January 2018, the Applicant was granted a (Temporary) Partner (subclass 820) visa (Temporary Partner Visa).

8. On 16 May 2018, the Applicant was arrested and charged with offences related to his involvement in the cultivation of a commercial quantity of cannabis. He was held on remand at Silverwater Correctional Centre until 18 September 2018, when he was released on bail.

9. On 30 July 2018, the Department cancelled the Applicant’s Temporary Partner visa under s 116(1)(e) of the Migration Act 1958 (Cth) on the basis that his presence in Australia posed a risk to the health of the Australian community.

10. On 9 October 2019, the Tribunal set aside the decision to cancel the Applicant’s Temporary Partner visa.

11. On 9 December 2019, the Applicant was granted a (Permanent) Partner (subclass 801) visa (Permanent Partner Visa). He is presently the holder of a Permanent Partner visa.

12. On 16 March 2021, the Applicant lodged an application for Australian citizenship by conferral.

13. In his application form, the Applicant disclosed that he had a criminal record and provided a copy of his Australian Federal Police National Police Certificate, which listed the following convictions:

Court	Court date	Offence	Court Result
Parramatta District Court	17 April 2019	Cultivate Prohibited Plant More Than Equal to Commercial Quantity – Cannabis	Intensive correction order for 6 months commencing 17 April 2019.
Parramatta District Court	17 April 2019	Use/Consume/Waste Electricity Without Authority	Taken into account.

1. On 24 March 2022, the Applicant was invited by the Department to comment on adverse information relating to his application within 28 days. The letter informed the Applicant that before he could be approved for Australian citizenship, the delegate must be satisfied that the Applicant was of good character under s 21(2)(h) of the Citizenship Act and that the offences listed in his National Police History Check Report would be taken into account.

2. On 17 April 2022, the Applicant appointed Mr Linh Sy Ho as his representative and provided the following documents to the Department in response to the invitation to comment letter:

   (a)Character reference dated 11 April 2022 from Rev. Paul Van Chi Chu;

   (b)Transcript of the sentencing remarks of Judge Turnbull in the District Court of New South Wales on 17 April 2019;

   (c)Statutory declaration from the Applicant dated 6 April 2022;

   (d)Copies of various court documents relating to the Applicant’s criminal proceedings, including a statement of agreed facts;

   (e)Psychological report prepared by David Green dated 15 April 2019;

   (f)Statutory declaration from the Applicant’s friend, Dinh Liem Nguyen, dated 14 April 2022;

   (g)Statutory declaration from the Applicant’s friend, Than Nhan Nguyen, dated 12 April 2022;

   (h)Statutory declaration from the Applicant’s friend, The Toan Dinh, dated 12 April 2022;

   (i)Statutory declaration from the Applicant’s “Aunty”, Thi Hau Nguyen, dated 12 April 2022; and

   (j)Notice of assessment from the Australian Taxation Office for the year ended 30 June 2021.

3. On 6 May 2022, the delegate refused to grant the applicant Australian citizenship. The delegate was not satisfied that the Applicant was of good character at the time of the decision as required by s 21(2)(h) of the Act.

   THE ISSUE

4. The issue before the Tribunal is whether it is satisfied that the Applicant is a person of good character as required by section 21(2)(h) of the Citizenship Act.

   LEGISLATIVE FRAMEWORK

5. The relevant legislation and policy is outlined below.

6. Section 21(2)(h) of the Citizenship Act states:

   (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.

7. The character requirement is satisfied if an applicant ‘is of good character at the time of the Minister’s decision on the application’. The Citizenship Procedural Instruction 15 (CPI15) provides guidance to decision makers on the interpretation and exercise of the powers under the Act. The Tribunal, as the decision maker, should apply departmental policy unless there are cogent reasons not to do so (see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [640] per Brennan J).

8. CPI15 states that a decision-maker may be satisfied that an Applicant is of good character if the Applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship process.

9. Relevantly, CPI15 provides that a person of good character would:

   ·respect and abide by the law in Australia and other countries;

   ·not practise deception or fraud in their dealings with the Australian Government, or organisations, for example – concealing criminal convictions; and

   ·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct.

10. CPI15 also provides a framework by which decision makers are able to ‘weigh up’ a character decision. Decision makers are required to consider:

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

    ·what evidence is available to demonstrate that the Applicant has upheld and obeyed the law;

    ·whether the Applicant has behaved in accordance with Australia’s community standards; and

    ·whether the Applicant shares Australia’s democratic beliefs and respects its rights and liberties.

11. In so doing, the decision maker should look holistically at the applicant’s behaviour over a lasting or enduring period of time.

    THE EVIDENCE OF THE APPLICANT

12. The Applicant gave evidence that he was born in Vietnam and arrived in Australia on 17 July 2013, at the age of 18.

13. The Applicant said that he was planning to enrol in an IT course, and that he had been undertaking an IT course in Vietnam. He wanted to come to Australia because he believed there were good educational opportunities here. After studying he planned to return to Vietnam. Under cross examination the Applicant admitted that he had told Dr Green that he had only attended one semester in Vietnam, and that he had passed some subjects, and failed others.

14. Once the Applicant came to Australia, he realised that he was finding it difficult to learn English but said that he stayed in Australia because he had promised his family that he would finish his studies in Australia, return to Vietnam and start a company in that country.

15. The Applicant accepted that it was a condition of his visa that he remain enrolled in an ‘acceptable course’ of higher education in Australia, namely a bachelor or masters level degree. However, he had never started such a course because his English was not good enough. The Applicant had enrolled in a Diploma of Business course, and said he was not aware that this course did not meet the requirements of his visa.

16. The Applicant said that he met his first wife on 14 February 2015, and they married on 5 December 2015. The Applicant accepted that his age on the marriage certificate was said to be 21, and his wife was 18 years and 2 months old at the time of the marriage. He said they married quickly because they were in love. The Applicant said that no one from his family attended the wedding because his Migration Agent said it would be hard for his parents to obtain a visa to travel to Australia.

17. The Applicant applied for a Partner visa on 30 March 2016, he stopped studying on 6 April 2016. His Student visa was cancelled on 29 November 2016. The Applicant agreed that he had studied for 6 days, between the time of his application for the Partner visa and the cancellation of his Student visa on 29 November 2016 approximately one year after his marriage. The cancellation of his Student visa resulted in the loss of his work rights.

18. When questioned as to what he was doing between November 2016 and November 2017, the Applicant said that he really could not remember, as he was heartbroken over the breakdown of his marriage to his first wife. He said it was a sad period and that he did not want to talk about the past. 

19. The Applicant denied that he was not telling the truth about the period in question because it would reflect badly upon him, and that he was simply trying to forget the past.

20. When taken to the statement of his friend Dinh Liem Nguyen, and questioned why his ex-wife did not accompany them to meet the Applicant’s parents in Vietnam, he said that his wife was busy studying and working at the time. The Applicant said that his previous wife had never met his family.

21. The Applicant said that he had been involved in the cultivation of cannabis which led to his conviction as a result of being offered a job by a friend. The job was to remove rubbish, and generally take care of the house. When questioned as to why he took a job in breach of the ‘no work’ condition of his visa, the Applicant said that he did not think it was a job, but rather an opportunity to earn money and help a friend.

22. At the house, the Applicant said that he did not see any plants. However, when the Applicant was questioned about his statement that he was ‘scared and paranoid’ when stopped by the police, he said it was because he had smelled the cannabis in the house, and knew that something illegal was happening there.

23. The Applicant said he separated from his previous wife in the middle of 2020, approximately 6 months after being granted the permanent Partner visa. He said he met his current wife at the end of 2020, commenced a relationship in the middle of 2021, and married her approximately 6 months later. He said that his wife had not given a statement in support of his application because the statements from his friends on his behalf were ‘more important’.

24. When questioned directly as to his voracity, the Applicant agreed that a person of good character would not tell lies and that if the Tribunal found his evidence to be untruthful it would weigh heavily against him.

    DISCUSSION

25. The issue is whether the Tribunal is satisfied that the Applicant is of ‘good character’ as required by s21(2)(h) of the Citizenship Act 2007 (Cth) (the Act).

26. It is well accepted that the issue of Australian Citizenship is not to be taken lightly. It is indeed a great privilege to be bestowed by the people of Australia on a non-citizen. Further, the issue of whether a person is of good character is not one to be decided on the balance of probabilities, but rather the Tribunal must reach an ‘affirmative belief’ that the Applicant is in fact, a person of good character. Good character is not defined in the legislation, however it has been considered by the Courts including the Federal Court in the case of BOY19 v minister for Immigration and Border Protection [2019] FCA 574, where O’Bryan J said at [51]:

    The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. (emphasis added) The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed or precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgement to be made by reference to undefined factual matters confined only to the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 348 per Mason CJ and 380-382 per Toohey and Gaudron JJ). Third, and as a corollary of the second point, the expression requires a judgement as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.

27. The Tribunal in considering the question of good character, is guided by part 4 of the Citizenship Policy 115, which states that the Tribunal should consider information provided by an Applicant about their family life, being in a stable home environment, being responsibly employed, and paying taxes, together with any community work being undertaken. It is a decision to be taken as part of an overall assessment which would include a person’s offending, but also including an assessment of all the positive aspects of their life. The Tribunal must then weigh all of the information in order to reach an ‘affirmative belief’ that the Applicant is a person of good character.

28. The Respondent put to the Tribunal that the Applicant’s involvement in the unlawful cultivation of commercial quantities of cannabis and use/consume/waste electricity without authority was extremely serious, because of the lengthy penalty that could be applied for such an offence. In the Applicant’s case, he was sentenced to an intensive corrections order for 6 months, which ended on 16 October 2019.

29. The agreed facts of the Applicant’s offending were as follows:

    ·Between 22 December 2017 and 16 January 2018, the police observed the Applicant’s vehicle parked outside a property in Strathfield NSW, on five occasions, and the Applicant was seen taking rubbish bins in and out of the premises.

    ·On 30 January 2018, police searched the premises and found that the property had been modified in order to establish the enhanced indoor cultivation of cannabis plants.

    oAn agronomist from the Department of Primary Industries identified that there were 530 cannabis plants.

    ·A representative from Ausgrid also identified that the supply cabling had been altered to bypass the electrical metering to the property, and the electricity had been used illegally.

    ·The Applicant was aware the premises were being used for the cultivation of cannabis, and that he had assisted others in cultivating the plants by removing rubbish, taking the bins out and maintaining the appearance of the property.    

30. The sentencing judge, in making a 6-month Intensive Corrections Order, took into account that the Applicant had been remanded in custody from the date of his arrest, namely 16 May 2018 until he was released on bail on 18 September 2018, and that he was the subject of significant restrictions as part of his bail conditions, which included a curfew and daily reporting requirements.

31. In looking at the Applicant’s offending it is also relevant to take into account the remarks of the sentencing judge who said as follows:

    It seems that he just walked straight into this opportunity without really thinking it through and I have already noted that it was a straight line to identify him because he was using a car which was registered to himself. I note that he is unable to work in Australia due to his bridging visa. He was financially dependent on his wife and that no doubt was a significant aspect. The actual behaviour he was involved in was in no way, shape or form the kind of hands-on involvement which one occasionally sees, there is no watering, there is no carting of fertiliser, there is no turning on or off of lights, there is no pruning, there is no preparation. All of those things are not part of this activity which would normally aggravate the objective seriousness to a significant degree.  

32. Overall, it is clear that the Applicant was not directly involved in the cultivation of cannabis, but was rather a ‘bit player’ in the enterprise. I note that in his evidence he did admit that he knew that cannabis was being cultivated on the premises because he could ‘smell it’. Although he said he did not see any cannabis plants in the house. It was this knowledge that made him ‘scared and paranoid’ when he was pulled over by the police.

33. The guidelines are of limited value in assessing the seriousness of the offence, but taken overall, I am of the view that the Applicant’s offending is at the lower end of the scale.

34. The Applicant has not had any further convictions since completing his intensive corrections order, and I accept the evidence before the Tribunal from his friends, Thanh Nhan Nguyen and Toan Dinh, his aunty and the reverend Paul Van Chi Chu, about the Applicant’s exemplary home life and voluntary work in his local Catholic community.

35. The Applicant appears to be gainfully employed, and to be paying taxes. His tax return for the 2020/2021 year was filed as evidence before the Tribunal.

36. I note that Reverend Chu did not set out in detail the Applicant’s voluntary work, apart from assisting with maintenance at a Catholic Community Centre, and did not provide detail about the time spent, or whether the Applicant’s work extended beyond general maintenance. I do, however, accept the Applicant’s evidence that he is opposed to the use of illicit substances, and that he has helped others to stop using illicit drugs.

1. In coming to an overall view, it is relevant to take into account that the Applicant has only been married to his current wife since 18 December 2021. The Applicant’s current wife was not called to give evidence on his behalf. The Applicant explained that this was because he considered any evidence from his wife to be of much lesser value than the evidence from his friends, which was filed with the Tribunal. It is unfortunate, in my view, that the Applicant’s wife was not called to give evidence, as one would expect that she is the person closest to the Applicant, and therefore, most able to give evidence as to his commitment to the family, the community, and his overall character.

2. There remains considerable doubt, as to the circumstances of the Applicant’s first marriage, which lasted for a short period of time. His first wife was very young, just 18 at the time. The Respondent raised the inference that the marriage may indeed have been one of convenience, for the purposes of obtaining a Partner visa, and certainly the Applicant abandoned his Student visa and any commitment to study very shortly after having applied for the Partner visa.

3. The Applicant claimed that he remembered very little about his first marriage, because he had made an effort to forget it, as it was so painful to him. Although it is understandable that a party may wish to forget the circumstances of a painful marriage breakdown, it is in my view unusual that a party would have no recollection of the events leading to the breakdown of the marriage and divorce. There was no evidence from the Applicant’s first wife, or indeed, any other party about the circumstances of that marriage, and its dissolution.

4. The Applicant said that his parents did not attend the wedding, because a migration agent had advised him that it would be difficult for them to obtain a visa. The Applicant did not explain why his parents could not have applied for a tourist visa, which is likely to have carried far fewer restrictions than other categories of visa.

5. Given the parties were divorced on 25 August 2021, which is approximately 20 months after his permanent (subclass 801) partner visa was granted on 9 December 2019. The Tribunal notes that the Family Law Act 1975 (Cth) requires the parties to be separated and to have lived separately for a continuous period of at least 12 months before the family court will make a divorce order, the parties must have lived together for substantially less than 12 months after the grant of the Applicant’s permanent partner visa.

6. The Applicant married his second wife on 18 December 2021, and she applied for a partner visa on 23 December 2021, which is approximately 4 months after the grant of a divorce from his first wife. The Applicant did not give clear evidence as to when his relationship with his second wife commenced, and as referred to above, the Applicant’s second wife did not give evidence to the Tribunal.

   CONCLUSION

7. In weighing all of the evidence, the Tribunal is unfortunately unable to reach an ‘affirmative belief’ that the Applicant is of good character for the purpose of the Act. Although the Applicant’s offending may have been at the less serious end of the scale, there are too many discrepancies around the circumstances of his arrival in Australia, including what would appear to be a breach of his original visa conditions, which the Applicant said was unwitting, and the circumstances surrounding his first marriage. It is of concern that the Applicant’s second wife did not give evidence to the Tribunal.

8. The Respondent drew the Applicant’s attention to the fact that there may be serious consequences of not telling the truth before the Tribunal. Whilst I decline to make any finding as to the Applicant’s veracity, particularly in light of language difficulties and painful memories, the evidence showed that he had not been entirely truthful with the Department in his response to the Notice of Intention to Consider Cancellation, and some of his answers to the Tribunal could properly be seen as evasive.

9. Against this, I accept that the Applicant has been law abiding for the past 4 years, that he has a supportive network of friends, that he is a good family man, and that he is gainfully employed and paying taxes.

10. Although on this occasion the Tribunal is not able to be satisfied that the Applicant is a person of good character, I am of the opinion that if the Applicant continues on his current path for a few more years, it will be possible for a future Tribunal to be satisfied that the Applicant is a person of good character. Accordingly, the correct or preferable decision is to affirm the decision under review.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate

Dated: 16 March 2023

Date(s) of hearing:	20 February 2023
Solicitors for the Applicant:	Linh Sy Ho
Solicitors for the Respondent:	Sophie Roberts