Oscar Tacalan and Minister for Immigration and Border Protection
[2014] AATA 767
•23 October 2014
[2014] AATA 767
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2507
Re
Oscar Tacalan
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 23 October 2014 Place Brisbane (heard in Townsville) The decision under review is affirmed.
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Deputy President P E Hack SC
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – application for citizenship – whether applicant of good character – applicant provided false date of birth to Department over five years – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21(2)
CASES
Irving v Minister for Immigration, Local Government & Ethic Affairs (1996) 68 FCR 422; [1996] FCA 663
Re Al Temimi and Minister for Immigration and Border Protection [2014] AATA 97
Re Nejat and Minister for Immigration and Border Protection [2014] AATA 453
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Deputy President P E Hack SC
23 October 2014
Mr Oscar Tacalan is a citizen of the Philippines. In 2006 he sought employment in Australia, and the visa necessary for that employment. In the belief that it would improve his chances of obtaining employment, Mr Tacalan told his prospective employer that he had been born in 1964 and was thus aged 42 years at the time of his application. In reality he was 10 years older having been born in 1954. Because his application for employment and for a visa were interconnected it was necessary, having lied to his prospective employer, for Mr Tacalan to maintain that lie in connection with his visa application with the result that his application for a visa gave his birth year as 1964. Not only did Mr Tacalan lie in his application, he provided documents that had been cleverly altered to show his birth year to be 1964 – a birth certificate, passport and a certificate from the National Bureau of Investigation – or which were otherwise consistent with the birth year of 1964 – a resume and a certificate of marriage
In subsequent dealings with the Department of Immigration in 2006, in a further visa application in 2009 and in an application for citizenship in 2011, Mr Tacalan maintained the lie that he had been born in 1964 and provided further forged documents in support of later applications.
His deception came to light in July 2011 when the Department, in connection with his application for citizenship, discovered his true birth year. Having discovered the truth, the Department refused his application for citizenship in January 2012. Additionally, consideration was given to cancelling his visa on the basis that he had provided incorrect answers in his applications and provided bogus documents to the Department. Ultimately, his visa was not cancelled, in no small measure because the official concerned with the original grant advised that the original visa would have been granted even if the true birth year had been disclosed.
In March 2013 Mr Tacalan made a further application for citizenship. It was refused by a decision made on 23 April 2014. A delegate of the respondent, the Minister for Immigration and Border Protection, was not satisfied that Mr Tacalan satisfied the requirements of the Australian Citizenship Act 2007 (Cth) (the Act). That Act, by
s 21(2), sets out the criteria for eligibility for citizenship. The effect of the subsection is that a person is eligible to become an Australian citizen if the Minister is satisfied that the person meets the criteria set out in paragraphs (a) to (h) of the subsection. There is no issue that Mr Tacalan satisfies most of those criteria. That which is in issue is in paragraph (h) which requires the Minister, or the Tribunal in place of the Minister, to be satisfied that the person,
… is of good character at the time of the Minister's decision on the application.
The expression "good character" is not defined or qualified by the statute. The expression was considered by the Full Court in Irving v Minister for Immigration, Local Government & Ethic Affairs[1] in the context of the power of the Minister to refuse to issue a visa. Justice Davies said,
It should also 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: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. 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.[2]
To similar effect, Lee J said:
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 whilst the latter is a review subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.[3]
[1](1996) 68 FCR 422; [1996] FCA 663.
[2]68 FCR at 425.
[3]68 FCR at 431.
The Department has promulgated a policy document, the Australian Citizenship Instructions (the Instructions), to guide its decision-makers. There is no apparent reason not to have regard to those Instructions in determining whether Mr Tacalan is now of good character.
Informed by the discussion in Irving the Instructions suggest that,
a decision maker can be satisfied that an applicant is a 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 processes.[4]
The Instructions urge the decision-maker to "look holistically at an applicant's behaviour over a lasting or enduring period of time".[5] The Instructions, at paragraph 10.3.4, list various characteristics that an applicant of good character would have. Although there is no contest that Mr Tacalan satisfies the majority of them, one is of particular relevance,
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
·providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
[4]At paragraph 10.3.1.
[5]At paragraph 10.5.4.
The Instructions, as well, suggest reasons why an applicant might not be of good character. Again, it is not in dispute that Mr Tacalan triggers only one of those which, in reality, is the obverse of the earlier criterion. It reads,
How has the applicant interacted with the Australian Government or State/Territory governments? Have they been honest or have committed fraud, including identity fraud, even if there has not been a criminal conviction? Look at a range of interactions and other information that may be contained in departmental records, such as the visa or citizenship applications, any information on file concerning the Australian Tax Office, Centrelink and Medicare etc.[6]
[6] At paragraph 10.5.2.
There is no doubt that Mr Tacalan lied repeatedly in his various applications. That conduct occurred over a period of five years between March 2006 and March 2011. The conduct was aggravated by the repeated production of forged documents and by the fact that Mr Tacalan involved his family members in the deception. It is, though, a curious feature of the case that Mr Tacalan did not obtain from the Department any benefit or advantage that he would not otherwise have obtained. The Minister does not suggest that he obtained improperly any benefit from any other government agency. The Minister did not point to any detriment beyond some additional time and effort required to verify
Mr Tacalan’s documents. In reality, the benefit was that Mr Tacalan obtained employment in circumstances where he feared he would not have been successful had he told his prospective employer the truth. Having committed himself to that lie he was committed to repeat the lie to the Department and, having done so, to perpetuate the lie until eventually it was discovered.
The Minister submits that the repeated and intentional provision of false information and documents was serious conduct when considered against ordinary community standards. He contends that Mr Tacalan has not demonstrated enduring moral qualities and that I could not be satisfied that he is of good character. Reference was made to two recent decisions of the Tribunal in this area. In Re Nejat and Minister for Immigration and Border Protection[7] Senior Member Britton concluded that evidence that the applicant in that case was prepared to sign, and submit to the Department, an official declaration containing information he knew to be false reflected poorly on that applicant's character. Similarly, Deputy President Hotop in Re Al Temimi and Minister for Immigration and Border Protection[8] regarded it as a matter of serious concern that the applicant had made false statements to government agencies, including the Immigration Department. But in each of those cases the false statement was material – what was knowingly false in each case were answers to questions regarding criminal history.
[7][2014] AATA 453 at [35].
[8][2014] AATA 97 at [38].
Mr Tacalan’s conduct is, I consider, less serious although, and likely because the false answer was not material to the Department's enquiries, it was continued over a longer period of time.
In Mr Tacalan’s favour, he has provided evidence from persons within the community to speak of his genuine remorse, his engagement with his church and his good character otherwise. He gave evidence of his engagement in the community and the performance by him of good work within that community. He explained his conduct on the footing that he had been unemployed for two years at the time of the original deception and was desperate to obtain employment in Australia to provide for his family.
Mr Tacalan is presently 60 years of age. So far as is known he has, apart from this conduct led a blameless life and made a positive contribution to the community including to the Australian community over the past nine years. He was driven to engage in in dishonesty by a desire to provide his family and, having commenced on a path of deception, lacked the moral strength to inform the Department of the true position.
His representative, Mr Dobbie, submits that over three years have passed since the last of the dishonest conduct. Given that Mr Tacalan has been of good behaviour over that period he can, so it is said, be regarded as having completely reformed and can now be considered as being of good character.
Despite the matters that are in Mr Tacalan’s favour, I am unable to agree.
Whilst I accept that Mr Tacalan was motivated to lie by his desire to support his family, I am troubled by the fact that he did lie, and that he repeated and maintained the lie over a period of five years. I am, as well, troubled by the degree of sophistication that attended the lie in the provision of documents that had been cleverly altered. Having obtained the original employment and visa, he did not then reveal the true position to the Department thereafter when he applied for his next visa, or even when he first applied for citizenship. Had he done so at an earlier time, or even at all, I might well have concluded that his original conduct was out of character and that he had appreciated his error. I am left in the position that I am not satisfied that Mr Tacalan is presently of good character.
In the result, the decision under review will be affirmed.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC ..............................[Sgd].......................................
Associate
Dated 23 October 2014
Date of hearing 9 October 2014
For the applicant
Solicitors for the Respondent
Visa Immigration Specialists Pty Ltd
Clayton Utz
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