Prapysatok and Minister for Immigration and Border Protection (Citizenship) - [2018] AATA 693

Prapysatok and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 693 (20 March 2018)
Division:GENERAL DIVISION
File Number(s): 2017/2718
Re:Kakanang Prapysatok
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris

Date:20 March 2018
Place:Melbourne

The reviewable decision that the Applicant does not satisfy section 21(2)(h) of the Australian Citizenship Act 2007 is affirmed.
......................[sgd]..................................................
Senior Member D. J. Morris
CITIZENSHIP – citizenship by conferral – whether applicant of good character – series of drink driving offences – misleading answers and false declaration on application form – no recent offences – factors to take into account – decision affirmed.
Legislation
Australian Citizenship Act 2007 (Cth), ss 21, 50
Administrative Appeals Tribunal Act 1975 (Cth), s37
Cases
Albert and Minister for Immigration and Border Protection [2017] AATA 2036
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634
Secondary Materials
Australian Citizenship Instructions, Department of Immigration and Border Protection
Citizenship Policy, Department of Home Affairs, Chapter 2
REASONS FOR DECISION
Senior Member D. J. Morris
20 March 2018

The Applicant, Miss Kakanang Prapysatok, applied for Australian citizenship by conferral under s 21 of the Australian Citizenship Act 2007 (‘the Act’) on 3 April 2016.
On 10 April 2017, a delegate of the Minister for Immigration and Border Protection refused Miss Prapysatok’s application because the delegate was not satisfied that the Applicant was of ‘good character’ under s 21(2)(h) of the Act.
On 16 May 2017, the Applicant lodged an application for review of the delegate’s decision by this Tribunal. The Tribunal had before it documents provided by the Respondent under s 37 of the Administrative Appeals Tribunal Act 1975, relating to the Respondent’s consideration of Miss Prapysatok’s application for Australian citizenship by conferral.
The documents showed that the Applicant was born on 30 May 1982 in Thailand and she is a citizen of that country. Miss Prapysatok first arrived in Australia on 28 February 2009 on a student visa. She later obtained her permanent residence through the Partner Visa Scheme when she was granted a subclass BS-801 visa on 30 October 2013.
The legislative framework for acquisition and conferral of Australian citizenship is the Act and regulations made under that Act. Specifically, Subdivision B, Division 2, Part 2 of the Act deals with Australian citizenship by conferral. It was accepted by the Respondent that Miss Prapysatok satisfied ss 21(2)(a) and (b) of the Act in that she was aged 18 or over at the time of her application and a permanent resident.
It was also accepted by the Respondent that Miss Prapysatok satisfied the other relevant criteria set out in s 21, except for s 21(2)(h) which requires the Minister to be satisfied that the person is of good character at the time of the Minister’s decision on the application.
The…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Prapysatok and Minister for Immigration and Border Protectio...

Details

AGLC: Prapysatok and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 693
Case: [2018] AATA 693
Decision Date: 20 March 2018

CaseChat Overview and Summary

Miss Prapysatok applied for Australian citizenship, but her application was refused by the Minister for Immigration and Border Protection. The dispute concerned whether Miss Prapysatok met the good character requirement for citizenship, as stipulated by section 21(2)(h) of the *Australian Citizenship Act 2007* (Cth). The Administrative Appeals Tribunal (AAT) was tasked with reviewing the Minister's decision.

The primary legal issue before the Tribunal was whether Miss Prapysatok's conduct in completing her citizenship application form demonstrated that she was of good character. Specifically, the Tribunal had to consider her responses to the declarations section of the application, which included a warning about the offence of making false or misleading statements, and her explanation for her actions when questioned. The Tribunal also had to assess whether her ongoing disqualification from driving, following a good behaviour bond, further impacted the assessment of her good character.

The Tribunal reasoned that truthfulness is a fundamental element of the immigration process, extending to citizenship applications. It relied on the principle established in *Lachmaiya and Department of Immigration and Ethnic Affairs* [1994] AATA 27, which emphasised the importance of truthfulness in dealings with immigration officials. The Tribunal found that Miss Prapysatok's failure to read and honestly answer the questions in the declaration, despite being familiar with official forms from her business dealings and her habit of always agreeing to terms and conditions online, weighed against a finding of good character. Furthermore, the Tribunal noted that her disqualification from driving at the time of her application, which continued after the imposition of a good behaviour bond, also raised concerns about her ability to abide by Australian laws.

Consequently, the Tribunal affirmed the reviewable decision that Miss Prapysatok did not satisfy the good character requirement under section 21(2)(h) of the *Australian Citizenship Act 2007*.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal is not clear whether there may be a loophole in terms of reciprocal information passed between State jurisdictions in cases where a person was driving in Australia on an International Driving Permit, because the person has lost the privileges to drive in a State, but did not have a licence issued by that State. On the Applicant’s evidence this did not prevent her obtaining a licence from another State. This is not a matter in this consideration, but the Tribunal feels bound to mention it as a slightly disquieting piece of evidence that emerged in this hearing.DECISION The reviewable decision that the Applicant does not satisfy s 21(2)(h) of the Australian Citizenship Act 2007 is affirmed.

Ratio Decidendi

Legal Principle Established

Miss Prapysatok marked the Declarations section of the citizenship application form with “Agree” and initialled it. The following is written at the head of that part of the form:DeclarationsWarning: it is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application.And, later in the same section:The applicant declares that…the information they have supplied in this form is complete, truthful and correct in every detail. In cross-examination, when asked about these answers, Miss Prapysatok said “I had a quick read – I didn’t read all the questions. I thought Immigration would tell me if I couldn’t apply.” When particularly pressed by the Tribunal about why she signed the Declaration, the Applicant said: “I didn’t read it all, just agreed. When asked about terms and conditions, I always tick ‘agree’.” The Tribunal has consistently taken the approach that truthfulness is an essential element in the immigration process. In Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27 Deputy President McMahon stated, at [35]:The observance of truth in dealing with officials and migration matters (particularly when 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...Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.I consider that, as citizenship is effectively the end-point for a non-citizen in the broader immigration process, this principle also extends to apply when permanent residents are applying for Australian citizenship. There is a reasonable expectation by the Australian people that a non-citizen will obey Australia’s laws and tell the truth to immigration officials. Relevantly, the Policy states, at chapter 11, when discussing how decision-makers should assess ‘good character’:(c) Among other things, an applicant of good character would:(i)Respect and abide by the law in Australia; and(ii) be truthful and not practise deception or fraud in their dealings with the Australian Government, for example concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship. The Tribunal finds that the Applicant’s failure to answer the two relevant questions honestly and to heed the warning clearly set out in the Declaration, weighs against a finding that she was of good character when she made her application. The Tribunal does not conclude these omissions were inadvertent because Miss Prapysatok agreed that she was familiar with official forms from running her businesses and because, on her own evidence, she indicated she ‘always’ agrees to terms and conditions when filling in forms online. I also note that the good behaviour bond imposed by the Court did not end until 4 December 2016, eight months after Miss Prapysatok lodged her citizenship application. At that time, and now, she is still disqualified from driving. Therefore the Tribunal believes that the Respondent’s submissions that the Applicant has yet to show evidence that she can maintain a clean driving record carry some weight.