Nguyen v Minister for Immigration and Border Protection
[2018] AATA 1082
•30 April 2018
Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082 (30 April 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5257
Re:Hong Hanh Nguyen
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:30 April 2018
Place:Sydney
The application for review is dismissed and the original decision of the delegate is affirmed.
.............................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – whether the applicant is of good character – making false statements in citizenship applications –application of Citizenship Policy – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21, 22
CASES
Areez Jafferi v Minister for immigration and Border Protection [2015] AATA 347
Dandan v Minister for Immigration and Citizenship [2010] AATA 539
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Mohammed v Minister for Immigration and Border Protection [2018] AATA 687
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Tacalan v Minister for Immigration and Border Protection [2014] AATA 767
Wendy Susan Baker v Department of Immigration and Ethnic Affairs [1995] AATA 13
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
30 April 2018
THE MATTER IN ISSUE
This is a matter of an application for citizenship by conferral made by (Thi) Hong Hanh Nguyen which the delegate of the Minister refused on the basis that there is some question about her identity and that she is not of good character.
The question before the Tribunal is whether the identity of the Applicant is at issue in the determination of her citizenship application and whether or not she is of good character.
The conclusion of the Tribunal is that for the purposes of this application Mrs Nguyen is not a person of good character.
HEARING
On 3 September 2017 the Applicant lodged her appeal against the decision of the Minister’s delegate and this matter came before the Tribunal on 10 April 2018.
Mrs Nguyen was assisted by her daughter Anna and by an interpreter in the Vietnamese language. Anna Nguyen took a primary role in presenting the case for her mother who was called upon to give evidence. The Respondent was represented by Ms Subasha Prasad (Minter Ellison).
The Tribunal takes this opportunity to thank all parties for the way in which the proceedings were conducted and the help provided to the Tribunal.
Apart from the Tribunal Documents (T-Documents), the Tribunal had before it an additional Supplementary Statement made by her and a series of character and personal references. In addition, the Applicant provided some material relating to the Applicant’s hiring of an alleged “migration agent”, together with copies of a delegate’s determination of an application for a Protection Visa on the part of the Mrs Nguyen and her son accompanied by a determination of the Refugee Review Tribunal.[1]
[1] Thi Hong Hanh Nguyen and Viet Tuan Anh Nguyen N03/47995, 23 March 2004.
The Respondent provided a Statement of Issues, Facts and Contentions and handed up a copy of the Tribunal’s decision in Tacalan v Minister for Immigration and Border Protection [2014] AATA 767.
Mrs Nguyen was called as a witness and taken through some of her written evidence by her daughter who was representing her. However, later in the proceedings Mrs Nguyen became very distressed and was unable to continue. She also had some issues arising from her medications which made it difficult for her to concentrate. There were also some issues with the interpreter who was assisting the Tribunal. Ms Anna Nguyen (who is fluent in Vietnamese) drew my attention to the fact that the interpreter was not always interpreting everything said by Mrs Nguyen, and, in some instances, she disputed the correctness of the translation itself.
All of this made matters somewhat difficult for the Tribunal. I found it to be the safer course of action to rely on the three detailed Statutory Declarations and other written evidence before me, which I was able to supplement with the answers given by Mrs Nguyen during her oral testimony.
The following people were called to give evidence in support of the Applicant:
Both the Applicant’s husband (Tu So Hau) and her son-in-law (Van Duc Ngo) gave evidence in support of Mrs Nguyen and also provided brief written references. I found both gentlemen to be genuine in their statements to the Tribunal, which attested to the good character qualities of the Applicant, her dedication to her family and community, and her contribution to the Australian workforce. I note that Chapter 11 of the Australian Citizenship Policy makes it clear that the Tribunal should give “less weight” to references which are provided by family members. I proceed with this caution in mind.
Evidence was given by Ms Amy Anh My Nguyen (no relation) who is the Director of the Australian Anatolian Community Services Co-Op. She also provided a written reference. I found Ms Amy Nguyen to be another very credible witness who spoke of the Applicant’s qualities and contribution to the community. She was generally aware of the Applicant’s migration status history and commented on the difficulties that the Applicant had faced in this regard. However, when recounting her knowledge of the shoplifting incident (see below), she indicated that Mrs Nguyen had given her a very different version of events compared with what appears to have been the truth of the matter – a version which sought to shift the blame for the incident onto a third party.
Brief written references were supplied by her family doctor and family pharmacist. They add nothing to the information before the Tribunal. More substantial references were provided in the Tribunal Documents. A Statutory Declaration from Hong Loan Vu wrote of the Applicant’s genuine efforts to obtain citizenship, her pride at passing the Citizenship Test and frustration (leading to depression) at this matter continuing to be unresolved.[2] Her fellow employee, Timotius Sanusi (Access Print Solutions), wrote of her honesty and her hard-work over many years.[3]
[2] Tribunal Documents at p. 88.
[3] Tribunal Documents at p. 90.
I have no doubt that Mrs Nguyen is indeed a hard-working and reliable member of the Australian community who is dedicated to both her family and her wider community.
BACKGROUND
Visa status
The Applicant is a citizen of Vietnam who first arrived in Australia on 10 August 2003 on a Subclass 676 (Tourist) visa. At that time, the Applicant signed an undertaking that this visa was granted with a “No Further Stay” condition.
On 7 November 2003, the Applicant applied for a Protection Visa which was denied, and after unsuccessfully pursuing merits review and ministerial intervention, she left Australia on 2 February 2005.
On 23 December 2006, the Applicant applied for a Subclass 300 (Prospective Marriage) visa, which she was granted on 5 April 2007. She was married to her sponsor (an Australian citizen) on 6 May 2007. She then lodged an application for a Subclass 820 (Partner (Temporary)) visa and a Subclass 801 (Partner) visa on 7 June 2007.
While this matter was still under consideration, the Applicant lodged an application for Australian citizenship on 14 January 2015. This application was refused on 28 August 2017 and this led to an appeal to this Tribunal which was made on 3 September 2017.
Criminal Conviction
On 12 January 2005, Mrs Nguyen was convicted of the criminal offence of shoplifting. She was subjected to a fine of $400.00 with court costs of $63.00.[4] The event took place at some time in September/October 2004 at a large department store in Campbelltown.[5] The Applicant states that she was convicted in absentia on 12 December 2004, and, as a result, she was unaware of her conviction at the time. She then departed Australia on 2 February 2005.[6] Mrs Nguyen states that only after being made aware (by correspondence from the Department) that this conviction had been recorded did she take steps to ascertain details of the fine and ensure that the fine was paid to the State Debt Recovery Office.[7]
[4] Tribunal Documents at p. 73.
[5] The Applicant’s Statutory Declaration of 18 August 2015 at page 83 of the Tribunal Documents states this occurred in September/October 2014 which is clearly an error. There is no other information about the actual date or location of the event.
[6] Applicant’s Statutory Declaration dated 12 December 2017 at p. 2.
[7] Tribunal Documents at pp. 84, 91-2.
Marital Status
Mrs Nguyen married her Australian husband (To So Hua) on 6 May 2007.
There is evidence that the Applicant was previously married in Vietnam. In a Statutory Declaration of 14 January 2014 she admitted that she “married my ex-husband before I came to Australia in 2003”, that “I had lived with him for 20 years and had two beautiful kids with him” but that “when I arrived in Australia, my ex-husband arranged a divorce and therefore my marriage certificate is no longer valid.”[8]
[8] Tribunal Document at p. 120.
There is a further document, dated 17 November 2000, from a provincial authority in Vietnam which declares that:
Till 1980 Ms. Nguyen Thi Hong Hanh, born in 1959, had never registered for marriage to anybody. In 1980, she was truly married and then lived in Vinh Long Province as stated in this application. They apply for de facto marriage registration for the first time.[9]
[9] Tribunal Documents at pp. 50-1.
These are the matters which I accept as statements of facts. There are a whole series of issues surrounding these facts which will need further examination and explanation.
THE DEPARTMENT’S FINDINGS
The Department has made four specific findings which have formed the basis for their rejection of the application in question. They assert that:
(i)Mrs Nguyen has falsely stated both her name and her date of birth on a variety of formal documents including visa applications;
(ii)She has concealed issues of her former marital status in the same set of documents;
(iii)She has falsified details of her son’s date of birth so that any checking of documents would not reveal her previous non-compliant migration history and criminal offence; and
(iv)She has deliberately concealed details of her criminal history in completing various visa and other applications.[10]
[10] Tribunal Documents at pp. 6-21.
FALSE NAME AND DATE OF BIRTH
There is no doubt that the Applicant has used two names throughout her history of applications for visas or statements made to the Australian Government. Those names are Thi Hong Hanh Nguyen and Hong Hanh Nguyen.
The name Thi is a generic Vietnamese name – that is to say, it does not have any specific “meaning”. It is generally given as a middle name to children to denote that they are female. It is akin to the Arabic ibnat/bint which indicates “daughter of” or “girl.” Dropping the name Thi would thus be like an Arabic woman deciding to refer to herself as “Fatima Abdullah” rather than “Fatima bint Abdullah.”
I make this comment simply to indicate that I do not place any sinister motive on the fact of the name change per se. The Applicant indicated in both written and oral testimony that her change of name was a result of attempting to regularise “paperwork” held by the Vietnamese authorities, which showed a different name in a variety of documents such as birth registers, national identity documents, her marriage certificate, and business registrations.[11] This explanation is rejected by the Respondent on the basis that Mrs Nguyen had been living in Viet Nam for 44 years and that her claim that she had only recently become aware of documentary inconsistencies is implausible.[12]
[11] Referred to by Mrs Nguyen in oral evidence and in the Applicant’s Statutory Declaration dated 12 December 2017 at [2.1].
[12] Tribunal Documents at p. 15.
The Applicant states that the Vietnamese authorities permitted this change of name and reissued identity papers with the new name. This statement was not contradicted by the Respondent. Furthermore, there is no suggestion that the new papers were not genuine or that they were forged.[13]
[13] This distinguishes the situation otherwise relied upon by the Respondent in Tacalan v Minister for Immigration and Border Protection [2014] AATA 767 where the applicant deliberately forged documents in order to conceal changes in identity and birth dates. See also the Applicant’s Statutory Declaration dated 12 December 2017 at [2.1].
However, it is not the change of name itself which is the critical issue before the Tribunal. Rather, the issue is whether the Applicant knew that (a) she had changed her name, (b) that she had used one name at one time and another at another time in formal documents submitted to the Australian authorities, and (c) she was asked to state whether she had ever used more than one name and clearly failed to do so.
On her original Citizenship Application Form (lodged electronically), the Applicant was required to answer the following question: “Are you currently, or have you ever been, known by any other names?” The electronic lodgement form does not provide a yes/no or similar check-box to answer such a question. What happens is that if that field is left blank it is automatically populated with the response: “No details of other names were provided.” This automatically generated response then becomes part of the document which is returned to the applicant. The applicant must then print out the document, personally sign and date it and upload it back to the Department.
In doing so, the applicant must sign a declaration which contains both a warning against the supply of false or misleading information and which contains a statement that the information supplied is “complete, truthful and correct in every detail.”
In reply to questions from the Respondent, Mrs Nguyen agreed that she had signed the document which was supplied to her on 14 January 2015 and that her signature was dated 17 March 2015.[14]
[14] Tribunal Documents at pp. 59-67.
Only after being notified by the Department on 31 July 2015[15] that information adverse to consideration of her application had come to their attention did the Applicant provide the Department with information in response to that correspondence. This is to be found in her Statutory Declaration dated 18 August 2015.[16]
[15] Tribunal Documents at pp. 74-79.
[16] Tribunal Documents at pp. 80-87.
The change of her date of birth is another matter entirely. Here, the Applicant’s explanation is one replete with issues of cultural norms and values. She told the Department that in the first instance she was not entirely sure of her date of birth, which may or may not be the case.
In a departmental document there is reference to a Statutory Declaration made by the Applicant on 24 August 2012, quoting the Applicant as stating: “My birth date was also not consistent as I do not know my real date of birth. I only know that I was born in 1959 as this was during the Vietnam War period.”[17]
[17] Tribunal Documents at pp. 114. 116.
In any event, she went on to say that at the time she was involved in establishing a joint venture activity (in clothing manufacture and managing a hotel), it was decided whilst completing paperwork that a date other than her genuine date of birth (19 September 1959 as Hong Hanh Nguyen) would be more felicitous. Thus, another date (14 July 1959 as Thi Hong Hanh Nguyen) was picked (in the same year) in the belief that that date would be a harbinger of better “luck.”
Again, the issue is not one of how sinister or otherwise this change of date may be, but rather the fact that the change was well known to the Applicant because it was her responsibility to reveal the fact to the authorities and she failed to do so.
CONCEALMENT OF FORMER MARITAL STATUS
There is no doubt that Mrs Nguyen failed to give accurate details of her marital status on a number of occasions. In a tourist visa application Mrs Nguyen states that she was married in Viet Nam in 1980.[18] In other places she confirms that she was divorced by her husband while she was visiting Australia in 2003. However, in her Partner Visa applications she states that she was never married but was in a de facto relationship. When the Department asked for copies of previous marriage and divorce certificates, the Applicant indicated that these could not be provided – on one occasion claiming that this was because the relationship was de facto and on another that the papers were not available from her ex-husband.[19] In a Statutory Declaration, Mrs Nguyen concedes that she was married before arriving in Australia and divorced (by her husband) during her sojourn here.[20] In that document she states:
When applying for the partner visa, I couldn’t obtain the divorce certificate and had trouble finding my ex-husband.
To avoid headache, I just fill in living in de facto relationship prior to this relationship. The local court refused to reissue the divorce order without my ex-husband’s information, such as a hearing date, which I did not know.[21]
[18] Tribunal Documents at p. 16.
[19] Tribunal Documents at p. 120.
[20] Ibid.
[21] Ibid.
FALSIFICATION OF DETAILS RE SON’S BIRTH DATE
Mrs Nguyen has supplied two different sets of documents relating to the date of the birth of her son, Nguyen Viet Tuan Anh. One shows his birth date as 15 September 1987 and another as 13 June 1987. The former date was registered on 19 June 1987 (almost contemporaneously with the birth of the child) while the latter is shown to be registered on 15 June 2006 (that is after the Applicant returned to Viet Nam on 2 February 2005). On her first trip to Australia on 10 August 2003 she was accompanied by her son.
The Department interprets this as a deliberate attempt on the part of the Applicant to avoid details of her travel to Australia being matched in a way which would have resulted in her exclusion for a second visit.[22]
[22] Tribunal Documents at p. 15.
It finds support for the Department’s interpretation in a statement made by the Applicant herself, when she states:
At the end, to make sure that my application would go through, I decided to exclude him out of the application, and thinking of sponsoring him at a later stage, but I was never successful because he was no longer dependent to me and because the Department refused to grant him any kind of visa he applied after (one student and one tourist visa application) because his information was linked with our past records. I did not declare my daughter because I fear that this would link to my past protection visa, tourist visa and therefore I will be banned for 5 years.[23]
[23] Tribunal Documents at p. 123.
CONCEALMENT OF MATTERS RELATING TO HER CRIMINAL CONVICTION
The Tribunal has already outlined the basic facts in relation to this matter, although, as I have noted, the Applicant appears to have given a different and somewhat sanitised version of this to her friend, Ms Amy Nguyen (the Witness). I do not make too much of this, nor of the Applicant’s attempts to conceal details of this incident from her family members. The understandable sense of shame and the loss of face, particularly in communities such as the Applicant’s, is a matter of cultural significance which the Tribunal should not ignore.
The Applicant states that because she did not understand the Australian legal process, after she was released from the Campbelltown police station she thought that the matter was concluded because the police had “warned” her about future offending. She provided evidence that in or about October/November 2004 she and her daughter (who confirmed this) moved from Campbelltown to Canley Vale and that as a result she did not receive the notice of court attendance and hence was convicted in absentia in December 2004.[24] She then departed Australia in February 2005. Her evidence (supported by documentation) was that once this matter was drawn to her attention by the Department in its correspondence, she and her daughter contacted the Office of State Revenue (State Debt Recovery Office) and ensured that the outstanding fines were paid.[25]
[24] Tribunal Documents at p. 81.
[25] Tribunal Documents at pp. 91-2.
In cross-examination, the Respondent established that a Vietnamese interpreter had been present at the police station and suggested that, as a result, Mrs Nguyen was fully aware of her requirement to attend court at some further date and deliberately failed to do so.
From my observations of the Applicant, and from the material before the Tribunal, I would prefer to accept the Applicant’s version: namely that given her state of distress and her difficulties with English she was unaware of the fact that she would be required to attend court at some stage. I also accept that her change of address may well have resulted in her not receiving the necessary documentation.
I regard the shoplifting incident as being one of very minor proportions and I note that it took place some 11 years ago and that the Applicant has had no adverse interactions with the law or criminal justice system since that time.
In this respect I note the comment by the Tribunal in Jafferi to the effect that:
The lapse of time between an application and the applicant’s past criminal conduct is a relevant, but not necessarily decisive, consideration in an assessment of their character. […] Past criminal conduct or conviction is not, and in the absence of any specific statutory provision, cannot be regarded as, an automatic barrier to the establishment of a person’s contemporary “good character”.[26]
[26] Areez Jafferi v Minister for immigration and Border Protection [2015] AATA 347 at [44].
Similarly in Baker, Deputy President B J McMahon of this Tribunal stated:
To prescribe that bad character will be forever assumed in the event of one conviction carrying a sentence of 12 months or more, no matter when that conviction took place is quite unreasonable. It is necessary in assessing character to look at all relevant circumstances including the age of the convictions.[27]
[27] Wendy Susan Baker v Department of Immigration and Ethnic Affairs [1995] AATA 13 at [43].
On appeal, this extract of DP McMahon’s decision was quoted by the Full Federal Court and approved, with their Honours stating, after reproducing the paragraph in full: “We think the learned Deputy President’s comment is plainly justified.”[28]
[28] Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at [192] (Burchett, Branson and Tamberlin JJ).
I note of course that Mrs Nguyen’s conviction is of an infinitely lesser character or gravity than that referred to in Baker. It is, as I have said, a minor offence.
The problem, however, is not the offence itself, but the failure to reveal it when there was a clear statutory obligation to do so.
There are a series of other matters raised by the Respondent which it claims point against the grant of citizenship to the Applicant. I now turn to these issues
THE CLAIM FOR A PROTECTION VISA AND EXTENSION OF TIME IN AUSTRALIA
When the Applicant was granted a Tourist Visa by the Australian Consulate General in Ho Chi Minh City on 5 August 2003 the Applicant was presented with a document detailing conditions attached to this visa. Prominent among these was a section headed:
The 8503 (or no further stay) condition means:
That the holder of the visa on which the condition has been imposed will not, after entering Australia, be entitled to be granted any other visa, while the holder remains in Australia.
The effect of this visa condition is that it will not be possible for you to apply to remain in Australia beyond the authorised period of stay shown on your visa label.[29]
[29] Tribunal Documents at p. 57.
In evidence it was apparent that Mrs Nguyen had signed the form to indicate that she was aware that her Tourist Visa was being granted with this “No Further Stay” condition attached.
However, just a few days before the expiry of the three month visa, the Applicant lodged an application for a Protection Visa both for herself and for her son on 7 November 2003.
The Applicant has provided an explanation for this on the basis that her Australian-resident daughter, who she was visiting, was engaged in a dispute with the University of Western Sydney involving matters of fraud and academic misconduct. These proceedings apparently took some 8 months to resolve. The Applicant states that she was “desperate in remaining in Australia to assist my daughter”[30] and, to that extent, paid a sum of $5000 to a person alleging to be a migration agent who offered (for a fee) to assist with the visa application.[31]
[30] Tribunal Documents at p. 82.
[31] The Applicant produced documentary evidence in support of this claim during the hearing. Tribunal Exhibit R2.
The Application for a Protection Visa was rejected by the Department on 14 November 2003. The Applicant appeal to the (then) Refugee Review Tribunal (RRT) on 13 December 2003. The Tribunal proceeded to hear the matter on 23 March 2004 but did so in the absence of the Applicant. It affirmed the decision to reject the application for a Protection Visa.[32]
[32] Thi Hong Hanh Nguyen and Viet Tuan Anh Nguyen N03/47995 (23 March 2004). Tribunal Exhibit R5.
The Tribunal records that it attempted to contact the Applicant to offer her the opportunity to appear at the RRT hearing but that:
On 2 March 2004 the Tribunal received a response to the hearing invitation form signed by the applicant on behalf of, and with the consent of, all family members included in the application stating that she did not wish to come to a hearing and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it.[33]
[33] Ibid at pp. 6-7.
The claims for protection set out in the application were entirely false and fanciful. They were untrue in every respect.
In relation to this matter the Applicant informed the Tribunal that the application was written by the so-called Migration Agent on the family’s behalf and they never read nor understood what it was all about.
The “response” referred to in the RRT decision was “forged” by the Migration Agent and was never seen or signed by the Applicant.[34]
[34] Oral statement to the Tribunal by Ms Anna Nguyen in closing submissions.
The Applicant left Australia on 2 February 2005, which is some 1.5 years after first arriving on a three month Tourist Visa.
I find this matter of the application for a Protection Visa and the ignoring of the no further stay conditions seriously disturbing. While I appreciate that the Applicant was concerned to try and remain in Australia to support her daughter, there is ample evidence that she knew that what she was doing was wrong. Moreover, this wrongdoing was compounded by the fact that the material put to the Department and the RRT in support of this application was so manifestly false. There cannot be any excuse that the Applicant had no knowledge of this – documents were signed by her and she was living with her daughter, who is exceptionally fluent in English and who could not have been unaware of what was going on.
This was a deliberate attempt to mislead and deceive the Australian Government and was done in clear, knowing breach of existing visa conditions.
THE REASONS FOR REPEATED NON-DISCLOSURE
The Applicant is forthright in acknowledging that she withheld required information from the Department as stated in [42] above.
After recounting the problems being faced by her daughter in 2003, she writes: “This also lead to my decision of trying to extend my stay in Australia as my tourist visa was valid for only 3 months.”[35]
[35] Tribunal Documents at p. 81.
Finally, in her Statutory Declaration of 12 December 2017 she states:
I was not able to complete any migration application form by myself and had no clue of what answers I should provide. My partner visa applications were prepared by my ex-son in laws, whom knew about my circumstance and had some experiences with similar cases and perhaps he thought that it would be best not to declare the previous travel so that the visa office would approve a clean new case quicker. In fact he was right. My fiancé visa application was granted only 3 months after lodgement. He also indicated that taking the advantage of the Vietnamese authority to allow me to correct my date of birth, it would be good idea to obtain new passport with my new date of birth for the purpose of the Partner visa application and not disclosing.[36]
[36] Applicant’s Statutory Declaration dated 12 December 2017 at [3.1].
CONCLUSION
This is, in many ways, a sad case.
Mrs Nguyen is undoubtedly a good soul, deeply caring for her family and deeply committed to them. She is hard working and supports not only members of her extended family but others in the community. She is, I believe, fundamentally a truthful person.
She is also a simple soul. She speaks little or no English - she says she passed the citizenship test on her fourth attempt because she has a “photographic memory of remembering the pattern of questions and by practicing a million of time the citizenship practice test.”[37] As a result, all of her formal paperwork has been completed by other people – at all times she has been in other’s hands and I have no reason to doubt that on some occasions (but not all) she was genuinely unaware of what she was doing or signing.
[37] Ibid.
That, however, is no excuse for misleading the Australian Government or its agencies or tribunals.
This Tribunal has set out clearly its view about the provision of false or misleading information to the Department in migration/citizenship matters:
Many of the provisions of the section [i.e. in the Migration Act] are reflected in the regulations, particularly in schedule 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first sub-section to the giving of false information, the use of bogus documents and the making of false or misleading statements. These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr. Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr. Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.[38]
[38] Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35].
More recently, that statement has been quoted again with the Tribunal going further to add:
I believe that this principle also adheres when an eligible non-citizen is applying for Australian citizenship. There is a reasonable expectation of the Australian people that a non-citizen will obey Australia’s laws and tell the truth to immigration officials.[39]
[39] Mohammed v Minister for Immigration and Border Protection [2018] AATA 687 at [39].
The Australian Citizenship Policy[40] provides guidance on what constitutes being of “good character” for citizenship application purposes. Among other things, it states:
Drawing from the definition outlined in Definition of good character, an applicant of good character would:
· be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
o providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
o involvement in bogus marriage
o concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship.”[41]
[40] Department of Immigration and Border Protection, Citizenship Policy (1 June 2016).
[41] Ibid at p. 147.
Manifestly, Mrs Nguyen’s applications for visas have failed to pass this test. In the Applicant’s Further Submission presented to the Tribunal, it is asserted that: “She was at some points silent about her one off incident, however the right to silence is also a basic human rights [sic].”[42]
[42] Applicant’s Further Submission dated 6 April 2018 at p. 2.
There is a fundamental difference between a right to silence and the requirement to be truthful when completing important documentation. There is no right to silence in these matters of completing important documentation that overrides the requirement to tell the truth – the whole truth – and nothing but the truth.
Finally, in this respect I note that the Applicant’s representative (Ms Anna Nguyen) told this Tribunal specifically in her oral submission on behalf of her mother that in relation to the protection visa application: “We know it’s wrongdoing but we have no choice.”
There is always a choice about doing right and doing wrong and sometimes necessary consequences flow from doing the latter.
I, of course, must determine matters as they stand before me on the date of this hearing and with the full knowledge of material which is before me and which may not have been before the original decision-maker.[43] It is for this reason that I have canvassed extensively the material paced in evidence and the most recent arguments advanced on behalf of the Applicant.[44]
[43] Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
[44] Dandan v Minister for Immigration and Citizenship [2010] AATA 539 at [9], [10], [45].
Nevertheless, there is only one conclusion to which I can come. Mrs Nguyen has failed, repeatedly, to provide true and accurate information to the Department in support of her application for citizenship.
Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.[45]
[45] See Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.
In coming to these conclusions, the Tribunal is depriving Mrs Nguyen of no rights.[46] She is able to lodge future citizenship applications and if she follows the maxim that “honesty is the best policy” and completes the application forms accurately, truthfully and fully, she may well find that, considering all her other qualities, a more favourable outcome than this will result.
[46] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
DECISION
The application for review is dismissed and the original decision of the delegate is affirmed.
I certify that the preceding 86 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
................................[sgd]........................................
Associate
Dated: 30 April 2018
Date(s) of hearing: 10 April 2018 Advocate for the Applicant: Ms A Nguyen Solicitors for the Respondent: Ms S Prasad
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