Qin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Qin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 871 (17 April 2020)
Division:GENERAL DIVISION

File Number(s): 2018/4608; 2018/4609; 2018/4610; 2018/4611
Re:Xiquan Qin; Qianye Zhan; Niankai Qin; Nianrong Cai
APPLICANTS

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:17 April 2020
Place:Sydney

The Tribunal affirms the decisions under review in relation to the applicants Xiquan Qin, Nianrong Cai, Niankai Qin and Qianye Zhan.
...............................[sgd]...............................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – refusal of Australian citizenship by conferral – general eligibility – good character requirement – eligibility of persons aged under 18 – exercise of discretion to refuse citizenship approval – Citizenship Policy – children under the age of 16 – assessment of applicants in their own right – responsible parent – Convention on the Rights of the Child – best interests of the child – significant hardship or disadvantage – reviewable decisions affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 40
Australian Citizenship Act 2007 (Cth) ss 6, 21, 24
Family Law Act 1975 (Cth) ss 61B, 61C
Migration Act 1958 (Cth) ss 499, 501
Migration Regulations 1994 (Cth) cl 676.22
CASES
Abebe v Commonwealth (1999) 197 CLR 510
AFY18 v Minister for Home Affairs [2018] FCA 1566
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883
G v Minister for Immigration and Border Protection [2018] FCA 1229
Han and Minister for Home Affairs (Citizenship) [2019] AATA 3325
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022
Kumar and Minister for Immigration and Border Protection [2014] AATA 944
Minister for Home Affairs v G [2019] FCAFC 79
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Mohamad and Minister for Immigration and Border Protection [2018] AATA 687
Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Secretary, Department of Social Security v Jordan (1998) 49 ALD 496
Shi v Migration Agents Registration Authority [2008] HCA 31
Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255
Wijewardhanage and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 746
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Convention on the Rights of the Child (opened for signature 20 November 1989) 1577 UNTS 3 (entered into force 2 September 1990) art 3
Department of Immigration and Border Protection, Australian Citizenship Instructions, 1 July 2014
Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016
Rubenstein, Kim, Australian Citizenship Law (Lawbook Co., 2^nd ed, 2017)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
17 April 2020

This matter involves an application by Mr Xiquan Qin (Applicant) who is the father of three children, a male child Nianrong Cai (born in June 2003) and two female children Niankai Qin (born in January 2006) and Qianye Zhan (born in January 2011), for a grant of citizenship by conferral for himself and his three minor children.
On 14 June 2016 the Applicant lodged the application for citizenship which was refused by the Minister’s delegate on 2 August 2018.
The basis for the refusal was the delegate’s determination that the Applicant was not a person of good character as required by section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (Act). The delegate then considered the children’s applications under section 21(5) in relation to citizenship applications by persons under 18 and also gave due consideration to the position of the children under Australian Citizenship Policy of June 2016 (Policy), treating their cases as independent applications for citizenship by conferral by applicants under the age of 16 years. The delegate’s considerations resulted in the refusal of all three applications.
On 15 August 2018 the Applicant lodged his application for review of his citizenship refusal decision and the associated applications of the children by the Tribunal which heard the matter on 6 and 7 February 2020.
LEGISLATIVE FRAMEWORK I: THE APPLICANT
An applicant is free to apply for a grant of citizenship by conferral under section 21(1) of the Act. In order for an application for citizenship to be approved, the applicant must satisfy all of the criteria which are listed in subsection 21(2) enumerated from (a) to (h).
Section 21(2)(h) provides that, in order for a grant of citizenship by conferral to be approved, the Minister (or his delegate) must be satisfied that the applicant:
is of good character at the time of the Minister’s decision on the application.
It is important to note that the way in which the Act is cast differs from the way in which the Migration Act 1958 (Cth) (Migration Act) is cast when it comes to the matter of “good character”. In the latter, with reference to section 501, there is a character test which an applicant may fail if, for example, they have a criminal record, they are suspected of certain activities or they constitute a threat to the Australian community. An applicant must satisfy the decision-maker that they pass the character test. The underlying assumption is that a person is of good character unless they “fail” the character test. By contrast, the Act requires that good character be established. An applicant must be found, positively, to be of good character.
In determining what constitutes “good character”, the Tribunal is bound by the decisions of the Courts and assisted by the statement of government policy which is contained in the Citizenship Policy.
Unhelpfully, the Act itself contains no definition of what constitutes “good character”, nor indeed does the Policy.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs, the Full Federal Court stated:
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.[1]
[1] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431.
The Tribunal has further found that evidence of what a person says, does or what they are heard to say or seen to do should be taken as indication of their acceptance of the values and norms to which they are expected to adhere and be loyal.[2]
[2] Zheng and Minister for Immigration and Citizenship [2011] AATA 304, [120].
The Policy itself then goes on to outline what the characteristics of good character might amount to. These are set out, at some length, as expecting that applicants would (inter alia):
orespect and abide by the law in Australia and other countries.
obe truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications.
onot be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance).
onot be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia.[3]
[3] Department of Immigration and Border Protection, Citizenship Policy, 1 June 2016 (Policy) at 147.
The Policy elaborates, by attaching to the phrase “enduring moral qualities”, further qualifications, namely:
ocharacteristics which have been demonstrated over a very long period of time.
odistinguishing right from wrong.
obehaving in an ethical manner, conforming to the rules and values of Australian society.[4]
[4] Ibid at 145.
However, it is equally important to note that, in reference to the phrase in question, the Policy also states that “[i]n this context, ‘moral’ does not have any religious connotations”.[5]
[5] Policy at 145.
The Tribunal notes that the role of the Policy is defined as being:
… to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.[6]
[6] Ibid at 1.
The Tribunal also notes that prior to the introduction of the Policy as from 1 June 2016, decision-makers were required to have regard to what were then the Australian Citizenship Instructions (ACIs). That document had a similar opening paragraph as the Policy but included an additional penultimate sentence which read “[d]ecision makers should be mindful that policy must not be applied inflexibly”.
In Minister for Home Affairs v G the Full Federal Court, in reference to a case initiated before the Citizenship Policy had superseded the ACIs, stated:
There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.[7]
[7] Minister for Home Affairs v G [2019] FCAFC 79, [18].
The same caveat applies to the Policy.
This contrasts, for example, with the power of the Minister under section 499 of the Migration Act in which legislative authority is given to the Minister to issue “directions” to decision-makers about the exercise of their functions or powers which are binding upon such decision-makers.
The Respondent urges the Tribunal to take note of the various criteria laid out in the Policy and does so on the basis that the authority in Drake (No.2)[8] is to the effect that any decision-maker (including this Tribunal) is obliged to give due regard and significant weight to policy instructions such as these.
[8] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 640.
However, a Policy is just that – policy. It is not law, although it rightly commends great respect from decision-makers. In Gbojueh, the Federal Court stated:[9]
At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly. In Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at 506-7 Hely J summarised the position as follows:
“The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will ‘normally’ be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case.”
[9] Gbojueh v Minister for Immigration and Border Protection [2014] FCA 883, [39].
In 1994 the Full Federal Court opined that:
It is right to say that the Tribunal, which operates as part of a continuum of administrative decision-making, is not bound by governmental policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review[10]
[10] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, 205.
More recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded:
… policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.[11]
[11] G v Minister for Immigration and Border Protection [2018] FCA 1229, [210].
In relation to both the Policy and the ACIs, the Tribunal notes that Senior Member McCabe (as he then was) observed in Kumar that:
… I do not accept the Australian Citizenship Instructions[12] are useful aids to the interpretation of the statute. At best, they represent the respondent’s opinion as to the correct interpretation of the legislation.
My task is to focus on the words of the statute in their context. The Act says what it says, and the words mean what they say.[13]
[12] These “Instructions” (last published on 26 February 2015) have since been replaced by the Citizenship Policy (1 June 2016) in the same terms. See Policy at 1. The current set of ACIs are a different form of advice to decision-makers.
[13] Kumar and Minister for Immigration and Border Protection [2014] AATA 944, [7].
The Policy itself states clearly that “[p]olicy cannot constrain the exercise of delegated powers under the Act or the Regulations”[14] and this indicates that a tribunal should be prepared to be flexible in its interpretation of the Policy to ensure that it reflects properly the legislation and facts pertinent to each individual case.
[14] Policy at 1.
THE DELEGATE’S DECISION ON “GOOD CHARACTER”
It is necessary to set out a detailed history of the Applicant’s interactions with the immigration authorities with particular reference to his holding of various visas. These details are reproduced (footnotes omitted) from the Respondent’s statement of facts, issues and contentions dated 9 October 2019 (Respondent’s SFIC) with due acknowledgement.
6. The applicant first arrived in Australia in 2012 as an unauthorised maritime arrival (UMA). He is currently the holder of a Protection (Class XA) (Subclass 866) visa (protection visa).
7. On 27 April 2009, the applicant applied for a Tourist visa (Subclass 676) under the birth name “Wuming Qin”.
8. On 6 May 2009, a delegate of the Minister refused the Tourist visa on the basis that the applicant did not satisfy the expressed intention to visit Australia genuinely. The delegate found this on the basis that the “information provided in [the] application [was] contrary or inconsistent with independent information obtained”. In a case note prepared by a delegate of the Minister, it was recorded that the applicant had provided “fraudulent employment claims”.
9. The applicant first intended to seek asylum in New Zealand. On [7] April 2012, the applicant arrived in Australia as an UMA on a yacht with a group of nine other UMAs, as a result of insufficient fuel and water for transit to New Zealand. Upon arrival, the applicant was granted a Border (Subclass 773) visa.
10. On 11 April 2012, the applicant requested assistance from the Department to safely relocate the yacht he used to migrate to Australia. On the same day, the applicant confirmed his intention to seek asylum in Australia and to cancel his border visa. The border visa was subsequently cancelled.
11. On 8 May 2012, the applicant applied for the protection visa. In his application, the applicant declared he had not made any other type of application to the Department. Furthermore, the applicant did not disclose his child, Ms Zhan.
12. On 21 March 2013, the applicant was granted the protection visa.
13. On 7 August 2013, the applicant applied for sponsorship for Xihong Cai in a partner visa application. In the application form, the applicant did not disclose his child, Ms Zhan.
14. On 31 October 2016, the applicant lodged a sponsorship application for a Child (Subclass 101) visa on behalf of Ms Zhan. On 4 May 2017, the visa was granted.
15. On 14 June 2016, the applicant lodged his citizenship application including his children [Nianrong] and [Niankai] but did not disclose his child, Ms Zhan. Further, the applicant did not disclose that he had been refused a tourist visa.
16. On 22 May 2017, the applicant’s then representative requested that Ms Zhan be included as a dependent child on [the] citizenship application.
17. On 2 August 2018, a delegate of the Minister refused the application on the basis that the delegate was not satisfied that the applicant met the good character requirement in s 21(2)(h) of the Act.
The grounds upon which the delegate determined that the Applicant was not a person of good character are, in essence, that:
(a)he failed to disclose that his previous application for a Tourist visa had been made and had been refused when applying for his Protection visa or in his citizenship application;
(b)he failed to disclose that he had been refused other visas;
(c)he failed to disclose the existence of his youngest child (Qianye “Isabella” Zhan) in either his Protection or Partner visa applications and in his citizenship application; and
(d)he showed a disregard for Australia’s laws by his initial illegal entry into Australia.[15]
[15] Section 37 documents – Xiquan Qin (T documents – Xiquan Qin) at 8-22.
Qualification of assessments
In the delegate’s formal statement of reasons for the initial visa refusal, the delegate also held against the Applicant a finding that he had provided “fraudulent employment claims” in his Tourist visa application. In the Respondent’s SFIC at paragraph 41 it was stated that the “the applicant did not disclose that he was the General Manager of Guilin Tianwang Communication Technology Co Ltd”. This matter was explored between the Tribunal and the representative of the Respondent, and after certain documentary evidence was pointed out, the Respondent conceded that the foregoing information had in fact been disclosed.
Similarly, the Tribunal drew the attention of the Respondent to the fact that the details of the Applicant’s Partner visa application were not before the Tribunal and asked that these be provided. The Respondent noted that these were in all likelihood generated at an Australian overseas post and would have been in the file of the nominated partner rather than that of the Applicant. The Respondent was given time by the Tribunal to produce copies of such documents, but failed to do so within the stipulated time. The Tribunal warned that should such documents not be forthcoming it would not give any credence to accusations or claims made in relation to them and would exclude them from its considerations of the Respondent’s case, a matter understood and accepted by the Respondent.[16] The Tribunal now proceeds on that exclusionary basis.
[16] Transcript of hearing on 6 and 7 February 2020 (Transcript) at 21 [lines 25-40], 51 [lines 38-41] and 169 [lines 30-35].
ROLE OF THE TRIBUNAL
As the Tribunal is required to place itself in the shoes of the original decision-maker and make its decisions de novo and on the basis of the evidence before it on the date of that decision-making, it is necessary to examine each of the factors which were considered in making the original refusal decision, together with any others which have subsequently become relevant. After these have been explored, the Tribunal must decide for itself if, on the basis of that evidence, the Applicant is a person of good character.
The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.[17]
The review undertaken by the Tribunal was in the nature of a de novo review on the merits. For that purpose, the Tribunal stood in the shoes of the original decision-maker (here the maker of the non-revocation decision) and so was obliged to apply the criteria governing the exercise of the power … at the time of its own decision.[18]
Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”… But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.[19]
[17] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419.
[18] AFY18 v Minister for Home Affairs [2018] FCA 1566, [9] per Charlesworth J.
[19] Shi v Migration Agents Registration Authority [2008] HCA 31, [37] per Kirby J.

It is up to the Tribunal to assess the material before it and to assign it the weight and value it thinks appropriate. This view is clearly stated in the authorities:
The weighing of various pieces of evidence is a matter for the Tribunal.[20]
In the end the criticisms made by the applicant of the Tribunal’s reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.[21]
[20] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, [33]: unanimous decision of the High Court.
[21] Abebe v Commonwealth (1999) 197 CLR 510, 580 per Gummow and Hayne JJ.
As such, the Tribunal will consider the Respondent’s refusal of the Applicant’s citizenship application against the four issues identified above, namely:
1the failure to declare an application for, and the refusal of, a Tourist visa;
2the failure to declare refusal of other visas;
3the failure to declare the status of the third child; and
4the nature of the Applicant’s entry into Australia.
ISSUE 1: THE TOURIST VISA APPLICATION
The Application and decision
On 27 April 2009 the Applicant, using his original (birth) name, Wuming Qin, applied for a Tourist visa (Subclass 676).[22] On the same date his then-wife (Xihong Cai) lodged a similar application.[23] It should be noted that on each application form, where details of family membership is sought, both omitted to include details of their daughter Niankai Qin who had been born in January 2006 and thus was three years of age at the time.[24]
[22] Respondent’s Tender Bundle (Tender Bundle) at 1-15.
[23] Applicant’s Evidence – Table 2 documents inspected by the Applicant (Applicant’s table 2 evidence) at 112-125.
[24] Tender Bundle at 14; Applicant’s table 2 evidence at 125.
There is also a significant difference in the two applications. Both claim to have had assistance with the preparation of their forms. The Applicant declared assistance from Li Jian Luo (resident at Heng Cheng Building, Guangzhou) and his wife from Huifang Deng (resident at Heng Cheng Mansion, Guangzhou).[25]
[25] Tender Bundle at 11 and Applicant’s table 2 evidence at 121, respectively.
On the other hand, there is a document, purporting to be signed by both the Applicant and Xihong Cai, in which a certain ShangFu Tang is appointed as an authorised agent for both the Applicant and his wife in handling their application.[26] This resulted in correspondence from the Australian Consulate-General in Guangzhou being directed to Mr Tang on behalf of both parties.[27]
[26] Applicant’s table 2 evidence at 135-138.
[27] Tender Bundle at 16-21.
That correspondence, dated 6 May 2009, was to the effect that both the Applicant and his then-wife had been denied Tourist visas. The reasons stated by the delegate making the decision included:
You did not satisfy Subclause 676.221(2)(a), which reads that:
The applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine.[28]
[28] Ibid at 17 and 20. Reference is to the Migration Regulations 1994 (Cth).
The delegate continues:
Information provided in your application is contrary or inconsistent with independent information obtained, and based on that information I am not satisfied that your expressed intention to visit Australia is genuine.
As a result of the above, I can not be satisfied that a genuine visit is intended and therefore must refuse your application.
The Applicant had stated that the purpose of his visit was “I want to travel Australia with my wife”.[29] He also stated that his son (Nianrong Cai) would not be travelling with him.[30]
[29] Ibid at 6.
[30] Ibid at 5.
The rationale for the delegate’s negative decision is set out in the material before the Tribunal and is based, in large part, around concerns regarding the nature of the Applicant’s employment, concerns about the bona fides of his travel plans involving just the Applicant and his wife who “do not know English”, inconsistencies in evidence obtained from third parties about the application and the fact that the Applicant’s passport apparently showed that he “was refused by France before”.[31]
[31] Tender Bundle at 22-26.
Before the Tribunal there is also a letter or statement by the Applicant’s employer, on some form of letterhead,[32] titled “Certification” and states:
This is to certify that our company’s General Manager named Mr. Qin wuming and Office director named Ms. Cai xihong.
Mr. Qin and Ms. Cai xihong will go to Australia for a short tour from 12, May, 2009 to 31, May, 2009. We guarantee that they will obey the laws and regulations and return to China on time. We (sic) will resume their positions and all the expenses included health insurance will be borne by themselves.[33]
[32] Transcript at 39 [lines 6-14].
[33] Applicant’s table 2 evidence at 71.
There then follows details of the couple’s names, dates of birth and passport numbers, and the document carries some form of (presumably) official company stamp.
It should be noted, however, that the exact reasons for refusal of the Applicant’s Tourist visa application are not in themselves important. What is important is simply that the Applicant submitted a Tourist visa application and that it was refused.
The Applicant’s version of events[34]
[34] Drawn from evidence provided by the Applicant under cross-examination; Transcript at 35-43.
The gravamen of the Applicant’s position on this issue is that the original Tourist visa application was made without his active knowledge or involvement, he claims, as part of an organised travel group being sponsored or arranged by his employer. He denies any knowledge of the person who is recorded in the documents as having been authorised by him to received related correspondence on his behalf. He has spoken to his ex-wife and she has no recollection of having made such an application herself. The Applicant’s extensive family data, which is included in his Tourist visa application form, was well known to his employees and those entries on the form were not filled out by him. (As already noted, the application is not complete in that while his eldest child is listed as a family member, his second child (Niankai Qin) is not, despite her being born some 3 years before the form was competed.)
Rather than this application being something related to a trip to be undertaken by the Applicant and his then-wife it is now asserted, by the Applicant and also on his behalf, that the trip was part of a “group” exercise. It was asserted that approximately five people “who contributed a lot to the company” were to be included in the group visit to Australia and that it was all being organised by an employee of the company without the direct involvement of the Applicant.[35]
[35] Transcript at 115-120.
In the words of his Counsel:
But basically, the situation emerges like this. A group of people at the office have had a good year, say, let’s all go for a holiday together; often the case.
And it was the word, “group” that gave me the clue to being able to make this submission and that is, a group of people who don’t speak English who want to go out for a bit of fun will do it, whether they go to Thailand, or New Zealand, or America, or Australia. Okay, Australia. Someone gets the job, again, to use the colloquial term, it sounds as though [Su Liu Jiao] there, was the bossy boots in the firm, a fairly senior lady working there, who was the instigator and the organiser, so to speak, of everything. Now, she’s one of 10 to 18 staff, she works in the business and basically, seems as though she thought it was a good idea that they all go together.
Now, she has got someone to fill out the forms, his signature’s clearly not his signature and he denies it and the fact that he turns around and says I forgot about that, is something that I thought would be almost insurmountable, if you look at it as a genuine attempt to come to Australia to check out the joint, so to speak, on a holiday, unless it’s done as a peripheral thing, which it was. That is, it was a group application. They might have made three or four, you know, if we can’t go to Australia, we’ll go to Thailand. As it turned out, they didn’t need a visa to go Guilin, but they did, the company did have bits of bonuses and they did have - turned out that group of people did have a bit of fun.[36]
[36] Ibid at 142 [lines 16-39].
Finally he says that the signature appearing on the documents is not his.[37] It appears that the first occasion on which the Applicant sought to deny that the signature on the Tourist visa application was his was when he gave evidence to the Tribunal.[38] There is no other or previous record of him having denied the veracity of the signature and that claim is not made in his submission to the Tribunal dated 10 September 2019 where the only reference to this visa application is to the effect that the Applicant “simply forgot” about it.[39]
[37] Tender Bundle at 13-15.
[38] Transcript at 40 [lines 43-47] et seq.
[39] Applicant’s statement of facts, issues and contentions dated 10 September 2019 (Applicant’s SFIC) at 8.
When pressed by the Respondent’s representative, the Applicant’s position was that he was unaware of the application (and hence its refusal) at the time of making his other visa or citizenship applications. He now has a vague recollection of something happening in this regard, but whatever it was, it was done without his consent. When he became aware that the alleged failure to disclose details of the Tourist visa application was a material factor in the refusal of his citizenship application, he took no steps to instruct his legal representatives to challenge that assessment on the basis that this was not a deliberate omission but rather a matter about which he had no knowledge, or at least did not recall the knowledge at the relevant times.
On the other hand, the Applicant admitted to a vague recollection of having received a telephone call from the Australian authorities to seek further clarification of matters in his visa application. The Department’s record of that conversation (which also included a conversation with his then-wife) shows that the Applicant was vague and confused about the details of his purported Tourist visa application or his purported trip to Australia. Differing accounts and responses were given by the Applicant and his then-wife, giving rise to understandable and legitimate concern on the part of the Australian immigration authorities.[40]
[40] Tender Bundle at 25.
The “pub test”
The Applicant’s Counsel made the following point in his closing submission:
I’m going to start the submission in a rather unusual way and that is, while the law is well set out in the written submissions, there’s a colloquial way would (sic) could describe, which is a term used in the political world and that is, does he pass the pub test? [41]
[41] Transcript at 141 [lines 26-30].
For the Applicant’s submission regarding the Tourist visa application to be accepted by the Tribunal, the following has to be accepted:
(a)the Applicant had forgotten that an application was made for him and his then-wife to travel to Australia, knowing no English and without further details of an itinerary, as part of a company group tour;
(b)that he accepted that there was no need to personally make an application for any sort of permission to travel because this was all going to be arranged by his company;
(c)that the Applicant expressed or recorded no concerns or difficulties about undertaking this travel with his wife but without two of his children who would remain in the People’s Republic of China (China);
(d)that he never completed any application for a Tourist visa and neither did his then-wife;
(e)his application for a Tourist visa which was submitted and which contained accurate (although not complete) details of his family, together with an authorisation for an agent to act on his behalf, was completed without his consent and signed with his birth name, although by some person other than himself;
(f)the Applicant took no subsequent action to bring to attention the forgery of his signature until the day of the Tribunal hearing “[b]ecause I d[id]n’t remember it, I wasn’t aware of it”[42] and “I didn’t remember [the Tourist visa application] but now I have some recollection” as a result of the matter being pointed out at the hearing;[43]
(g)any failure to declare details of this Tourist visa application on any other form was a result of not “hav[ing] any recollection of this incident” in the past,[44] “[b]ecause I forgot about it”[45] or “I have no recollection at all”[46] of this whole episode and it only came to his attention at the hearing.[47]
[42] Transcript at 36 [line 45].
[43] Ibid at 37 [line 17].
[44] Ibid at page 40 [lines 46-47].
[45] Transcript at 41 [line 33].
[46] Ibid at 37 [line 47].
[47] Ibid at 41 [lines 1-8].
In the pubs frequented by the Tribunal, that story simply does not pass the test.
On the Applicant’s Tourist visa application completed as part of a so-called “group application”, the extensive family details, correct in all material respects (although incomplete in total) were not likely to have been within the knowledge of, and inserted by some company representative. The idea of a company group heading off to parts unknown with vague itineraries does not seem plausible, and unless the “Certification” from his company is also a bogus document there is no reason that it should refer to the Applicant and his wife alone with no mention of other members of the “group”.
The conclusion of the Tribunal is that the Applicant in fact made an application for a Tourist visa to visit Australia, which was refused and which was not disclosed on subsequent forms completed by the Applicant.
ISSUE 2: OTHER VISA APPLICATIONS
There is, in the file notes of the Guangzhou Office of the (then) Department of Immigration and Citizenship, a statement to the effect that an examination of the Applicant’s passport revealed that he had previously been refused entry to France.[48] In reply to questions from the Respondent’s representative the Applicant admitted that he had been refused a visa to enter France and that he also had three refusals/ rejections for tourist visas to enter the United States of America,[49] one made from Thailand and two from China.[50]
[48] Tender Bundle at 25.
[49] Although a tourist visa was applied for, the Applicant stated that the purpose of this trip to the United States was that “I was intending to go to a display there”: Transcript at 44 [line 23].
[50] Transcript at 43 and 44.
On 8 May 2012 the Applicant applied for a Protection (Class XA) visa. On the application form there is a question in the following terms:
(3) Has [the Applicant] previously made any other type of application to the department (including a Parent visa)?
To this, the Applicant ticked the box marked ‘No’.[51]
[51] Supplementary section 37 documents – Xiquan Qin (Supplementary T documents – Xiquan Qin) at 354.
The Applicant’s Personal particulars for assessment including character assessment statement (Form 80) which was submitted with the Protection visa application contains a question in the following form:
(57) Have you…ever: been refused a visa for Australia or any other country?
In response to this the Applicant ticked the box marked ‘No’.[52]
[52] Ibid at 397.
On 14 June 2016 the Applicant lodged his citizenship application and subsequently filed a Personal particulars for assessment including character assessment statement (Form 80). In that form there is a question in the following terms, under the heading “Part N – Visa refusals”:
(39) Have you ever been refused a visa to any country?
Again the Applicant ticked the box marked ‘No’.[53]
[53] T documents – Xiquan Qin at 119.
Even if the Tribunal were inclined to accept the Applicant’s evidence to the effect that he had no recollection of any Tourist visa application (and hence refusal) by the Australian government, his own evidence is to the effect that he has been refused visas on at least four other occasions (one for France and three for the United States). The citizenship application question clearly refers to visa refusals by “any country”.
This clearly establishes that the Applicant failed to disclose relevant information and/ or gave misleading answers to questions on both his Protection visa and citizenship application forms.
ISSUE 3: FAILURE TO DECLARE MATTERS RELATED TO THE THIRD CHILD
The elder two children are the children of the Applicant’s former wife (Xihong Cai). The youngest child is the Applicant’s child from an extra-marital affair with Ms Diru Yang.
It is necessary to say something further of this child’s parentage.
The Applicant made a Statutory Declaration on 14 November 2017 in which he stated:
(8) I have been friends with Diru Yang (Ms Yang) since 2008.
(9) Before I left China in 2010, I did have an (sic) one-off sexual intercourse with Ms Yang. It was a one night stand. Both Ms Yang and I were married at the time.
(10) Ms Yang and I continued to be friends. We did not live together, we had no joint assets or liabilities, and we had no shared social life. I did not consider I had a de-facto relationship with Ms Yang.
(11) After I left China, I have never seen Ms Yang in person. However I kept in contract with Ms Yang.
(12) I knew that Ms Yang gave birth to a child in 2011. I knew that the child was not named following my surname.
(13) In 2012, after I arrived in Australia, Ms Yang told me via QQ voice that the Child looked like me, not her husband, and that the Child might be mine.
(14) When I made the protection visa application, I knew the Child looked like me, and that it is theoretically possible that the Child might be mine, because I had a one night stand with Ms Yang. However, I do not know for sure that the Child was mine, and I did not include the Child into the application.
(15) I saw the Child once through video talk. The Child did look like me. I started financially supporting the Child and Ms Yang, because Ms Yang’s life was hard, and I wanted to support her because:
a. The Child might be mine; and
b. I have been friends with Ms Yang, and I did have sexual intercourse with Ms Yang. I consider that although there was no long term relationship between us, we did share a past.
(16) I made the citizenship application in June 2016. At the time, I suspected the Child was mine, but I did not know for sure. Therefore, I did not include the Child.
(17) I continued to financially support the Child until 2016.
(18) As the Child grows up, she became more and more like me.
(19) To know for sure whether the Child is my biological child or not, I gave consent to conducting a DNA test for the Child in August 2016.
(20) I contacted the DNA test agency, and expressed my intention to receive a DNA test and also intention to apply for child migration in the future pending the outcome.
(21) However, I was told by the DNA agency that I would need to supply them with the DIBP letter before sample collection could be arranged.
(22) I then applied for Child migration in October 2016, so that the DNA process could proceed.
(23) At that time, I believed since I made the child migration application, the Department would know, from then on the existence of the Child.
(24) In March 2017, I received the DNA test result, and I knew for cetain (sic) that the Child was my child.
(25) I instructed my previous representative Mr Lu to include the Child into the form 80 dated 8 August 2017, which was sent to the Department.
(26) I did not conceal any information from the Department.
(27) Before I made the child migration application, I did not know whether the Child was mine or not.
(28) I consider that by making the child migration application, I was telling the Department existence of the Child and the Child’s relationship with me. Plus, after I became aware of the DNA test result, I instructed my agent to submit a Form 80 including the Child. If I want to conceal the information, I would not have disclosed the information as I did.
(29) To my knowledge, I have nevered (sic) involved myself in any illegal movement of people, I did not know what the Department was referring to in its letter dated 27 October 2017.[54]
[54] T documents – Xiquan Qin at 150-151.

It is worth repeating that, in assessing questions arising from this matter of the status of the youngest daughter in terms of information provided by the Applicant, there is no consideration or judgement allowed of the “moral” qualities of any sexual relationships of the parties.
In evidence, the Applicant stated that “last January” he had actually married Ms Yang in New Zealand.[55] He told the Tribunal that she had travelled there from Thailand via China and that she had then returned to China and was now living there.[56] He is now anxious to sponsor her to come to Australia and for her to reunite with their daughter.
[55] Transcript at 28 [lines 1-2]. The Tribunal asked the Applicant to provide a copy of his New Zealand marriage certificate and although he has failed to do so, the Tribunal accepts his testimony to the effect that the marriage took place with Ms Diru Yang. Divorce certificates between the Applicant and Ms Xihong Cai are before the Tribunal.
[56] Transcript at 30 [lines 24-29].
It is the Respondent’s contention that the Applicant failed to disclose the existence of this third child when he lodged his Protection visa application (8 May 2012) and his citizenship application (14 June 2016).
On behalf of the Applicant, his Counsel submitted:
Now, again, to suggest that he failed to disclose his child in the earlier applications, in the protection visa, the partner visa and so forth, is explicable in the circumstances. In the early days, one does not go around boasting about one’s ex-nuptial child. Sometimes it causes great disharmony in the relationship with the existing wife. There are many things, many reasons for not saying that. Certainty was created by the DNA test and there’s been little doubt of my client’s response to that since. He’s got her out here and he’s caring for her 100 per cent.[57]
[57] Transcript at 145 [line 45] - 146 [line 5].
It is not necessary to recount in detail the process by which the youngest child was granted entry to Australia. Suffice to say that the Applicant sponsored the child’s application,[58] that the child’s biological parentage was recorded in the documentation,[59] that steps were taken to clarify the consent of the child’s mother[60] and that the child was granted a Child AH (Subclass 101) visa on 7 May 2014.[61]
[58] T documents – Qianye Zhan at 46-80.
[59] Ibid at 50. The child’s birth certificate shows the name of her mother’s then-husband who was subsequently revealed not to be the child’s biological father by the DNA tests described supra.
[60] Supplementary T documents – Xiquan Qin at 521.
[61] T documents – Qianye Zhan at 135-136.
There is no doubt of the attachment of the Applicant to his third daughter, nor is there any dispute that he has managed to bring her to Australia and to care for her. Furthermore, there is no doubt that he is anxious to bring her mother, to whom he is now married, to Australia to reunite the family.
This, however, is not what is at issue. What is at issue is the failure to declare the existence of the child in either the Protection visa or citizenship applications. Here, there can be no claim of forgetfulness and mere embarrassment is not an acceptable explanation or excuse.
ISSUE 4: THE NATURE OF ENTRY INTO AUSTRALIA
Consideration of this question requires some lengthy discussion of the Applicant’s journey from China, which he left in 2010, to Australia where he arrived in 2012.
In the first instance the Applicant claims that he left China in 2010 because he was afraid for his physical security. He claims that he was a member of an anti-government political organisation, the Democratic Party of China, which is opposed to the hegemony of the Chinese Communist Party and that he suspected he was under some form of surveillance.[62] This prompted him to leave China for Thailand where he continued to be active in anti-Chinese government activities and where he sought a protection visa.
[62] Applicant’s table 2 evidence at 195.
It is not required that the Tribunal make any findings on such claims, nor is it in a position to do so. Suffice to say that his protection visa application lodged in Thailand was rejected, although when he came to Australia and made a subsequent Australian Protection visa application that was granted.[63]
[63] Supplementary T documents – Xiquan Qin at 504-505.
The Applicant had left Thailand and travelled to Malaysia for the purpose of purchasing a yacht to sail to New Zealand in circumstances which are described below.
The delegate’s record shows that the Applicant entered Australia on 7 April 2012. It appears that the Applicant together with 9 other persons (details unspecified) were on board a yacht which the Applicant claims was heading to New Zealand. This vessel was allegedly in international waters when it was intercepted or “rescued” by Australian authorities and directed to land at Darwin.
The Applicant’s position was that he:
… had no intention to enter Australia unlawfully or indeed at all as he was heading to New Zealand and was in international waters when he was rescued and persuaded by the Australian authorities to come to Darwin for transit purposes. Later, it was the Australian authorities who persuaded Mr Qin to seek protection in Australia and ultimately granted that protection.[64]
[64] Applicant’s SFIC at 7.
There is considerable confusion and a lack of clarity about the actual circumstances of the Applicant’s boat journey to Australia and the extent to which he was a principal in the organisation of that journey.
It appears that the vessel in which the Applicant and others were sailing left Malaysian waters in March 2012 and that it “did not have sufficient fuel and water and they were rescued by the Australian government”.[65] It further appears that some members of the party were members of the Falun Gong sect,[66] a group known to suffer persecution at the hands of the government authorities in China.
[65] Applicant’s table 2 evidence at 209, being part of the Delegate’s consideration of the Applicant’s application for a Protection visa.
[66] Applicant’s Statutory Declaration dated 7 May 2019 in Applicant’s Evidence – Table 1 documents produced by the Applicant (Applicant’s table 1 evidence) at 1.
Some reports state that the Applicant was the “captain” of the vessel[67] – a claim which he denies[68] as do other passengers on the yacht. There is photographic evidence showing him at the wheel of the yacht in question,[69] and evidence that he shared primary sailing duties with two other people.
[67] Report in Sing Tao Daily newspaper dated 2 May 2012 in Applicant’s table 2 evidence at 190.
[68] Applicant’s SFIC at 7-8.
[69] Applicant’s table 2 evidence at 189.
However, at the Tribunal hearing the Applicant made it clear that he was only one of a number of people who had responsibility for steering the boat, with navigation done by GPS signalling, and that the members of the party did not regard him as being in any way the “captain” of the vessel.[70] The Tribunal accepts this evidence.
[70] Applicant’s table 1 evidence at 28.
Some press reports of the time indicate that the yacht was en route to New Zealand at the time it was intercepted and reference to this is also made in an email of an officer of the (then) Department of Immigration and Citizenship on 10 May 2012.[71]
[71] Applicant’s table 2 evidence at 233.
Attention should also be drawn to the concessions on this point, namely the purported destination of the vessel, made by the Respondent in its SFIC at paragraphs 9 and 10 as quoted above.
In evidence to the Tribunal the Applicant outlined his journey thus:
(a)he left China in 2010 and travelled, on a tourist visa, to Thailand where he remained for 18 to 24 months.
(b)while in Thailand he made plans to go to Malaysia and there purchase a yacht in order to sail to New Zealand.
(c)he planned to find other people to sail with him on this voyage and made contact with some people online while in Thailand although he did not physically meet anyone until he arrived in Malaysia, and he did not recruit and meet his eventual fellow passengers until then.
(d)the yacht was purchased in his name as he was the only person holding a valid passport at the time, although the money for the purchase of the yacht was contributed by the Falun Gong members. He had no equity in the purchase of the vessel although all documentation showed him as the owner.
(e)in preparation for the voyage, he and two others bought necessary food and water and loaded the vessel while he (exclusively) purchased a water purifier and a GPS navigation instrument.
(f)some of the passengers (including the Applicant) “took it in turns” to steer the yacht – none of them had navigation experience and they intended to make their way to New Zealand guided by a GPS system accessed through their mobile phones.
It is unclear whether or not the vessel was in international waters or Australian territorial waters when intercepted. According to the Applicant the vessel was running short of drinking water and fuel when it approached a fishing boat to seek assistance and this boat alerted the Australian authorities who then intercepted their vessel. A naval vessel then directed the boat to Darwin and for at least a two-day period the vessel was under tow by the naval vessel.
In relation to the Applicant’s claim that he had no equity in the vessel (the Rahmani[72]) there are four documents which touch on this issue. In an email which includes a record of an interview with the Applicant in support of his claim for a Bridging visa the Applicant told the interviewer that “[h]e also claims to own equal shares in the yacht which is currently being stored in Darwin”.[73] The Applicant explained, during the hearing, that what he meant by this was simply that he was the legal owner of the vessel and that he owned some goods (the water purifier and GPS instrument) on board the vessel which were his personal possessions.
[72] Applicant’s table 2 evidence at 231.
[73] Ibid at 233-234.
Secondly, there is a reference in a further departmental interview document (a Compliance Client Interview dated 11 April 2012) wherein it is recorded that in response to a question about his assets in Australia the Applicant replied to the effect: “[b]ought the vessel together but I don’t have a share in the boat “master””.[74] Again, the Applicant insists this is to be taken only as meaning that he was the legal owner of the vessel and had made all the relevant purchase and travel arrangements.
[74] Ibid at 175.
Thirdly, there is a note which is handwritten in Chinese, apparently by the Applicant (translated) as follows:
I ask that the Dept of Immigration help pull the yacht to a safe location and afford free cost of [word ‘maintenance’ deleted, indistinct substitute word] storage. I undertake to reimburse the Immigration Dept for the cost of pulling the boat ashore & parking the boat.
So declare. [scil. Signed] by Qin Xi Quan.[75]
[75] Ibid at 170.
In his evidence at the hearing the Applicant stated that the vessel had subsequently been sold for $10,000 and the proceeds distributed between the 9 other people on the yacht. He had received nothing but queried how the yacht (allegedly within the Department’s care) could have been sold, without his permission, when he was the legal owner and the Australian authorities were aware of this and had documentary proof of his legal ownership.
Finally, there is a statement signed by seven of the other Rahmani passengers in which they state that:
othey alone purchased the vessel and the Applicant had no equity in it;
othe Applicant was not in any sense the “captain” of the vessel;
othe Applicant was only one of three people who piloted the vessel; and
othat New Zealand was always the intended destination of their journey.[76]
[76] Applicant’s table 2 evidence at 28.
What is apparent from the evidence is that:
(a)the Applicant left Thailand and travelled to Malaysia with the express intention of buying a vessel and sailing it (somehow) to either the United States (by landing in the territory of Guam) or subsequently New Zealand;
(b)it was only on arrival in Malaysia that other passengers were recruited to join this venture and that it was their money which financed the trip;
(c)the purchase of the vessel in the Applicant’s name was a result of his being the only holder of a valid passport and he had no equity in the actual purchase;
(d)the voyage was conducted with a number of people taking steering or navigational duties;
(e)the Applicant supplied some equipment for the voyage (GPS; water purifier etc.) at his own expense;
(f)the vessel became unseaworthy, in that fuel and water shortages made it impossible or dangerous to continue, and it was reported by a fishing vessel to the Australian authorities, intercepted by an Australian naval vessel and towed into Darwin.
Although it is clear that the Applicant was active in seeking to recruit other people to join his voyage (to whatever destination), he received no payment for this, he was not the “captain” nor in “full control” of the venture[77] and, as the Respondent rightly concedes, there is no suggestion of his being a people smuggler.[78]
[77] Contra to the findings of the delegate in T documents – Xiquan Qin at 17.
[78] Transcript at 159 [line 15].
It is useful to record the exchange in the Tribunal as to the Applicant’s plans and motivations at the outset of this venture.
SENIOR MEMBER: Thank you. Mr Qin, let me just go back. You got on this boat in Malaysia, is that correct?
INTERPRETER: Yes, in Langkawi, Malaysia.
SENIOR MEMBER: Why did you not remain in Malaysia?
INTERPRETER: The reason I went to Malaysia is to purchase the boat and to leave with them.
SENIOR MEMBER: So you had previously been living in Thailand?
INTERPRETER: Yes.
SENIOR MEMBER: And so you went deliberately to Malaysia to purchase a boat with the object of sailing that boat to New Zealand?
INTERPRETER: Yes.
SENIOR MEMBER: And the people from Falun Gong who contributed to that boat, did you meet them in Thailand or did you meet them in Malaysia?
INTERPRETER: Malaysia.
SENIOR MEMBER: So when you were in Thailand you were intending to go and buy a boat to come to New Zealand but you had not yet met the people who were passengers?
INTERPRETER: No, not yet. I try to go to the United States of America.
SENIOR MEMBER: So when you were planning to buy the boat were you going to look for passengers to join you on that voyage?
INTERPRETER: No.
SENIOR MEMBER: So you were proposing to sail that boat yourself from Malaysia to New Zealand?
INTERPRETER: No, because in Thailand I wanted to go by myself but I haven’t met them yet and I didn’t know them yet.
SENIOR MEMBER: Yes, but when you were in Thailand your plan was to go to Malaysia, buy a boat and sail by yourself to New Zealand, is that correct?
INTERPRETER: No.
SENIOR MEMBER: Okay. Well, what were you planning to do when you had bought the boat?
INTERPRETER: Because one of the passengers named Xiao Hong Wu, we had contacts on line and that’s how we got [to] know each other.
SENIOR MEMBER: That was on line while you were in Thailand?
INTERPRETER: Yes.
SENIOR MEMBER: So you were actively looking for people to join you on the boat for the voyage?
INTERPRETER: Yes, I was in the hope of looking for people to go with me.[79]
[79] Transcript at 28 [line 36] - 30 [line 2].
Although the Applicant elected – the Tribunal does not accept that he was “persuaded” by the Australian authorities – to claim protection status in Australia, it appears that it was not his intention to enter Australia illegally (although he did so) but rather that his aim was to take himself and the people he was travelling with to New Zealand to seek asylum.
The Tribunal accepts that the intention of the Applicant was to seek asylum in New Zealand once it became apparent that the aim of reaching the United States was unrealistic. It accepts that he entered Australia illegally, although he was subsequently granted a Border visa (Subclass 773) that he then had cancelled so he could apply for a Protection visa,[80] which was ultimately granted.[81]
[80] Supplementary T documents – Xiquan Qin at 509-519.
[81] Ibid at 504.
The Tribunal does not regard this sequence of events as constituting what the Respondent characterises as “disregard for Australia’s immigration laws”[82] or otherwise seeking deliberately to flout Australia’s border protection regime.[83]
[82] Respondent’s statement of facts, issues and contentions dated 9 October 2019 at [46].
[83] T documents – Xiquan Qin at 17.
WITNESS STATEMENTS – CHARACTER EVIDENCE
The Applicant called a number of witnesses to attest to his good character.
Qianye (Isabella) Zhan
His nine-year old daughter Qianye (Isabella) Zhan provided a hand-written statement[84] and gave evidence to the effect that she had travelled, on her own, at age 7 from Thailand to Australia to be with her father, that theirs is a loving and close relationship, that she is hopeful that her mother would be allowed to join the family in Australia, that she loves the country and has aspiration to become a dentist in order to help people in the community.[85]
[84] Tribunal Evidence Exhibit A1 – Statement of Qianye Zhan dated 6 February 2020.
[85] As a minor the Tribunal exercised its discretion under section 40(2) of the Administrative Appeals Tribunal Act 1975 (Cth) not to require the witness to take an oath. See Secretary, Department of Social Security v Jordan (1998) 49 ALD 496, 504 per Hill J.
Lingzi Wang
Ms Lingzi Wang is the owner of a number of heavy trucking vehicles and principal officer of a trucking company (BCB Logistics Pty Ltd). She has occasionally employed the Applicant who is an experienced driver of heavy vehicles conveying shipping containers. Ms Wang gave evidence to the effect that the Applicant was a hard worker, a good friend and a supporter of the role of women in an otherwise heavily male-dominated industry. She regarded him as a “calming” influence in her own personal life (as an “uncle”), and was aware of the very close and caring relationship he has with his daughter, arranging to work night shifts in order to spend time with her mornings and afternoons.[86]
[86] Applicant’s table 1 evidence at 49.
Yang Gao
Mr Yang Gao, an Australian citizen, has been in this country since 2005 and first met the Applicant at their place of work (a paint factory) in 2012. For some time in 2017 he, another person, the Applicant and the Applicant’s youngest daughter all lived together at a location near Blacktown. He was able to observe the close relationship of father and daughter and the Applicant’s efforts to spend time with her by arranging to work primarily on night shifts. He found the Applicant to be diligent and hardworking (“not afraid to get his hands a bit dirty”). Although he and the Applicant no longer reside in the same premises, they still socialise, talk regularly and occasionally eat at restaurants together. When questioned, Mr Gao indicated that he had no knowledge of the Applicant’s personal or political history, did not know about his membership in any Chinese political parties or anything about the details of the Applicant’s voyage from Malaysia to Darwin. He stated that both he and the Applicant regarded these as “private” matters and hence did not speak about them.[87]
[87] ibid at 50.
Zhuo Ma
Mr Zhuo Ma told the Tribunal that he had previously worked with the Applicant in the trucking industry and that when he had faced difficulties as a result of an industrial accident he had called upon the Applicant for advice and support. He described the Applicant as good hearted and always willing to help others.[88]
[88] Statement of Zhuo Ma dated 31 January 2020.
James Jinfu Ke
Mr James Jinfu Ke, an Australian citizen, has known the Applicant since 2016 and described him as helpful, conscientious and particularly knowledgeable about the truck industry, giving support and asking for nothing in return. He had met Isabella and wanted to attest to the closeness of the father-daughter relationship and the Applicant’s protectiveness of her.[89]
[89] Statement of James Jinfu Ke dated 4 February 2020.

Further written statements of support were provided by a number of other people, including a Mr Hong Bin Lin, Mr Ming Hai Lee and Ms Haiyan Ma who were fellow passengers on the boat which brought the Applicant to Australia.[90] There is also testimony as to the Applicant’s political activities on behalf of the Chinese Alliance for Democracy and the China Democracy Party.[91]
[90] Applicant’s table 1 evidence at 43-45.
[91] Ibid at 41 (statement of Jin Jiang Zhong) and 47 (statement of Andrew (Hao) Guo).
In relation to the witnesses’ statements and testimony, the Respondent urges that they should be given little weight primarily because they do not refer to nor shed light on the central issue of the Applicant’s alleged failure to be honest with the Department in relation to his various migration applications. The Policy itself is generally dismissive of the value of such witness statements and there is some support for this approach in the authorities.[92]
[92] Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022, [109].
On the other hand, the Applicant’s Counsel urged upon the Tribunal that these statements were evidence of the Applicant’s current good character and that they all spoke positively of the Applicant as a good friend, hard worker and dedicated parent.
The weight to be given to such evidence and testimony is exclusively a matter for the Tribunal to determine bearing in mind, but not being overborne by, whatever might be said in the Policy.
The Tribunal does accord some degree of weight to these testimonials on the basis of both their sincerity and their consistency, and that they indicate what the Applicant is seen to do by those around him. They speak well of the Applicant and they attest to the sort of characteristics which are otherwise taken as hallmarks of good citizenship such as dedication to family, support of “mates”, respect for women especially in the workforce and a willingness to “get one’s hands dirty” in productive employment.
“Dob-in” letter
Some adverse information was put against the Applicant in the form of a “dob-in” letter from Tiejian He who claims that the Applicant offered to arrange a visa for him in exchange for money.[93] Although the letter in evidence before the Tribunal is quite detailed in its accusations, and although its contents were put to the Applicant by the Respondent’s representative,[94] the Applicant denied that the claims were factual and the matter could not be further tested at the hearing.
[93] Supplementary T documents – Xiquan Qin at 459-469.
[94] Transcript at 75 [line 20] – 76 [line 32] and 99 [line 7] – 101 [line 14].
The Applicant has not been in any trouble with the law enforcement authorities and there are no adverse police or other reports to put against him. He is usually gainfully employed and pays his taxes. It is apparent that he takes some active interest in pro-democracy activities aimed at supporting democratic activities in China and Tibet (against the prevailing communist dictatorship) and in Taiwan.
These matters are very much to his credit.
LEGISLATIVE FRAMEWORK II: THE MINOR CHILDREN
Care and custody of the children
The Applicant and the wife of his first two children (Xihong Cai) were divorced in May 2016 (effective 25 June 2016) and no specific parenting orders were made in association with that divorce.[95] None has since been entered into under the provisions of the Family Law Act 1975 (Cth).
[95] Applicant’s table 1 evidence at 36-37.
The evidence before the Tribunal was unequivocal in its effect that the mother has sole custody of the children as a single mother. The Applicant’s ex-wife and his two elder children reside in Burwood and the Applicant sees them “[o]n average twice a week”. He lives not far away in Padstow. The Applicant says that he and his ex-wife consult on arrangements for the children’s schooling and he provides some sort of regular financial support for the children, primarily for what he describes as their “living expense[s]” and occasional one-off purchases. At present, the Applicant is unemployed and his financial support for these family members is not governed by any form of court directed or legally enforceable arrangement.
On the days he sees them, he visits them at their home and they go shopping or out to a restaurant. These children do not in any sense “reside” with him, they do not spend nights at his home, and he has no direct control over any part of their lives.
In relation to their nomination by the Applicant on his application form for citizenship by conferral he told the Tribunal that their mother had given her consent for this nomination to be submitted.[96]
[96] Transcript at 128 [lines 1-5].
Relevant law and policy
In relation to the position of the various children, section 21(5) of the Act states:
Person aged under 18
(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged under 18 at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application.
Section 24(2) provides the Minister with a discretion to refuse to approve a citizenship application despite a person being eligible under, inter alia, section 21(5). Section 24(2) does not state the factors that may be taken into account when exercising the discretion to refuse the approval of citizenship. However, chapter 7 of the Policy states:
Children under 16 applying on the same form and at the same time as a responsible parent
Children under 16 applying on the same form and at the same time as a responsible parent would usually not be approved under s24 unless they are permanent residents at the time of application and decision and also:
obe living in Australia with the relevant responsible parent and
othe relevant responsible parent consented to the inclusion of the child in their application.
…
Note: If a child under 16 applies on the same form and at the same time as a responsible parent, and that parent is refused, the child must be assessed in their own right.
The Policy relevantly provides that children under the age of 16 applying in their own right will usually be refused citizenship unless the child is:
ounder 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application, or
ousually resident in Australia with a permanent resident responsible parent who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country, or
ounder 16 when applying, living with a responsible parent who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage.
The Policy further states that where an applicant under the age of 16 does not meet the Policy guidelines, decision-makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the “unusual” nature of those circumstances.
The term “responsible parent” is defined in section 6 of the Act:
(6) Responsible parent
(1) For the purposes of this Act, a person is a responsible parent in relation to a child if and only if:
(a) the person is a parent of the child except where, because of orders made under the Family Law Act 1975, the person no longer has any parental responsibility for the child; or
(b) under a parenting order the child is to live with the person (whether or not the person is a parent of the child); or
(c) under a parenting order the person has parental responsibility for the child's long-term or day-to-day care, welfare and development (whether or not the person is a parent of the child); or
(d) the person (whether or not a parent of the child) has guardianship or custody of the child, jointly or otherwise, under an Australian law or a foreign law, whether because of adoption, operation of law, an order of a court or otherwise.
(1A) In paragraph (1)(a):
"parental responsibility" has the same meaning as in Part VII of the Family Law Act 1975.
(2) Expressions used in paragraphs (1)(b) and (c) have the same meaning as in the Family Law Act 1975.
Sections 61B and 61C of the Family Law Act1975 (Cth) provide:
61B Meaning of parental responsibility
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
61C Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
It is thus clear that the Applicant is a responsible parent for the purposes of the Act and that he has a right to make an application for citizenship by conferral on behalf of each of his three children.
The Tribunal notes that the eldest child is now 16 years of age, although at the time of the citizenship application he was under that age. Whilst the Tribunal must make its decisions on the facts as before it at the time of its decision-making and not that of the original decision-maker, in this instance the Tribunal must be bound by the fact that the legislation and Policy make it clear that it is “at the time of the application” that the age of the applicant must be ascertained. In this instance, the eldest child was under the age of 16 years and his application must be considered on that basis alone.
THE INTEGRITY OF THE APPLICATION PROCESS
Misleading (acts or omissions), deceptive and fraudulent conduct in the context of immigration processes must be considered a serious matter and an affront to Australian law. Immigration fraud, in whatever form, undermines the integrity of the visa and citizenship programmes, which are premised on the basis that applicants will be truthful and not provide false or misleading documents or information, nor will they deliberately withhold relevant information.
In Taradel, Senior Member McCabe (as he then was) observed:
I agree that dishonesty in dealings with the department is a very serious matter. The integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history. The department is not in a position to know what the applicants know, after all. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly.[97]
[97] Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255, [23].
That need for complete honesty in dealing with the Australian government in relation to applications for citizenship was made clear in Mohamad where the Tribunal stated:
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.[98]
[98] Mohamad and Minister for Immigration and Border Protection [2018] AATA 687, [39].
In Fang, I stated that:
An attack on the fundamental integrity of the immigration system is in effect, an attack on the interests of all Australians.
…
Maintenance of that integrity and value of citizenship cannot be compromised.[99]
[99] Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686, [103] and [134].
I also made clear in Nguyen,[100] affirming a refusal of citizenship, that:
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.[101]
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.
[100] Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082, [82]-[84].
[101] See Zheng and Minister for Immigration and Citizenship [2011] AATA 304, [120].
Deception lies just as much in failure to reveal material facts as it does in their deliberate concealment. Where information is sought and especially where the nature of that information is specific, there can be no excuse for failure to provide full, complete and truthful answers.
Truthfulness is a hallmark of good citizenship and of good character. Its absence bespeaks against the claim for either.
CONSIDERATIONS: THE APPLICANT
As already noted, the Tribunal is required to determine if the Applicant is (positively) a person of “good character” and in doing so have regard to the judicial interpretations of what that description might mean. Any such exercise must necessarily involve a balancing or a “calculus”[102] of various factors as it would be unusual for a matter to come before the Tribunal where all the weight of evidence was on one side. Among these competing and balancing claims, it is the responsibility of the Tribunal to assign weight to each in its final process of determination.
[102] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47, [52].
It is clear, as the Respondent states, that the Applicant has failed to disclose relevant information on at least three important applications made to the Australian government, one for a Tourist visa, one for a Protection visa and the other for a grant of citizenship by conferral. The non-disclosed information related to a decision made in China by Australian consular authorities not to grant the applicant a Tourist visa, decisions made by the governments of France and the United States not to grant visas or entry permits, the existence of the Applicant’s eldest daughter at the time of applying for the Tourist visa, and the active and important presence in the Applicant’s life of a much-loved youngest child.
Knowledge of this information may or may not have swayed a decision-maker one way or the other. It would not likely have led to an inevitable adverse decision being made if all the relevant circumstances had been admitted and exposed. However, the Tribunal accepts that this is mere speculation and it well understands that the Applicant may have thought that to be truthful would have prejudiced the outcome of his application. It also accepts that there might have been elements of forgetfulness or potential embarrassment involved in the Applicant’s own decision-making. Nevertheless, at all times, the relevant information was in the hands of the Applicant and he failed to disclose it as required.
There is no alternative but to weigh this heavily against the Applicant.
As to his “illegal” entry into Australia – that is a matter of fact. The Tribunal is prepared to accept, on the balance of the evidence tendered, that it was not the Applicant’s original intention to enter Australia and the fact that he did was not a direct result of any conscious decision on his part to transgress Australia’s immigration laws. If his party had been able to get to Guam, with the United States as a preferred destination for many in a similar position, or to New Zealand which the party may have thought offered a better prospect of acceptance than Australia, this issue may never have arisen.
The Tribunal does not weigh this factor against the Applicant.
Once ashore and once accepted by the initial grant of a Border visa, however, the Applicant was under a positive obligation to deal honestly with the Australian authorities who had rescued him and taken him ashore. He did not do so.
Above all, it is the failure to declare the results of various visa applications or entry refusals to both France and the United States, as well as the Applicant’s visa request to enter Australia as a tourist, which count most heavily. They were known, there is no suggestion of their being forgotten and they could not have resulted in any embarrassment by their revelation.
The Applicant’s version of the Tourist visa application saga also does not, in the Tribunal’s view, pass the “pub test” which the Applicant’s Counsel asked to be applied to it. It is too full of contradictions and implausibility to be accepted.
The Tribunal accepts that the Applicant, since his settlement in Australia, has behaved well. He has no criminal record, he clearly provides such support as he can for his children and his ex-wife, he works hard and he is highly regarded by his friends and workmates for supporting them in times of need, he cares deeply for his youngest child and is doing all that he can to protect and support her and to seek eventual family reunion with her mother.
All these things count clearly in the Applicant’s favour.
However, the wider issue is, as stated already, the maintenance of the integrity of the immigration system to protect the Australian community, based in large part as it must be on the honest dealing with it by applicants for the earned privileges of Australian citizenship.
Hence, with all the factors considered and balanced, the calculus in this instance must be against the Applicant.
CONSIDERATIONS: THE APPLICATIONS OF THE MINOR CHILDREN
The relevant parts of the Act and Policy are set out above.
In his original application for citizenship the Applicant has included applications on behalf of each of his three children. Although their applications are contained within the father’s primary application, nevertheless their applications stand alone in the event of refusal of the father’s application and each need to be considered.[103] Neither the Act nor the Policy proceed upon the basis of visiting the “sins of the father” upon his children and any decision about his application does not automatically have similar consequences for them.
[103] Policy at 76.
The children in question are, at this date, aged 16, 14 and 9 years of age. The elder two reside with their mother as primary carer and the youngest lives with the Applicant. As noted above, the eldest child is now over the age of 16 but his application must be assessed at the date of its lodgement when he was still under that age, rather than under the separate Policy provisions dealing with applicants aged 16 or 17 years.[104]
[104] Ibid at 77.
Apart from the Act and Policy, the Tribunal needs to consider that Article 3(1) of the Convention on the Rights of the Child (CROC), to which Australia is a signatory, requires that:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
In his submission to the Tribunal, the Applicant sought to draw attention to his concerns that failure to grant citizenship rights to his children could expose them to harm resulting from the actions of the Chinese government as a result of his political activities. He also expressed concern that because “the children cannot return to China anymore, if they cannot be granted Australian citizenship” this itself would result in them “hav[ing] no sense of belonging and to some extent live as stateless people”. Finally they would be denied the benefits of participating in the processes of Australia’s democracy and be prejudiced in their access to educational resources and support.[105]
[105] Applicant’s SFIC at 10.

In and of themselves, none of these is a sustainable proposition. There is no evidence before the Tribunal which suggests that the Chinese authorities would seek to harm the children. Their status as permanent residents would be unaffected by any decision on these applications. Their eventual access to citizenship at a later stage, and hence their ability to become part of the Australian polity, remains open as does their potential access to educational support.
The Policy is clear that applicants in the position of these children would normally be refused citizenship where the nominating responsible parent has been refused unless “the child would otherwise suffer significant hardship or disadvantage”.
The definition of “significant hardship or disadvantage” is set out at page 33 of the Policy and uses the definition of each word as it is in the Macquarie Dictionary Fifth Edition, as follows:
osignificant – important; of consequence
ohardship – a condition that bears hard upon one; severe toil, trial, oppression, or need
odisadvantage – absence or deprivation of advantage; any unfavourable circumstance or condition
odetriment – loss, damage, or injury
oeconomic – relating to the production, distribution, and use of income and wealth.
Nothing advanced on behalf of the children suggests that they would suffer any degree of hardship or disadvantage, let alone at a significant level, were their applications to be refused at this stage.
Although the Tribunal has some sympathy with the application of the eldest child (now aged 16), as expressed at the Tribunal’s hearing,[106] there is a larger public policy question brought into play. This was discussed at length by this Tribunal in Han[107] when considering a similar application from a child under the age of 16. In considering issues of the best interests of the child, the Tribunal noted:
As Professor Kim Rubenstein writes in her authoritative analysis of Australian citizenship law:[108]
“… the policy makes it clear that the Convention on the Rights of the Child does not require that the best interests of the child be the only primary consideration. The child’s best interests must be “weighed with or against any other primary considerations in the specific circumstances”, including the objectives of the relevant provision, community protection and community expectations.” (emphasis in original)
[106] Transcript at 163 [line 34] – 164 [line 8].
[107] Han and Minister for Home Affairs (Citizenship) [2019] AATA 3325, [24].
[108] Kim Rubenstein, Australian Citizenship Law (Lawbook Co., 2^nd ed, 2017), 134.
The important public policy consideration here is what has been described as maintaining the “integrated citizenship status” of a family. This was discussed in detail in Wijewardhanage[109] where the Tribunal stated:
Thus the administrative scheme developed to condition the exercise of the discretion arising from subsection 22(4A) of the Citizenship Act is that where a parent is granted citizenship, children of the person would normally be granted it at the same time; but if it is denied the parent, it is only granted to the children under exceptional circumstances. The purpose, presumably, is to maintain an integrated citizenship status for the family and avoid creating circumstances that might encourage families to split up. Provided it is applied with some flexibility, I cannot see that the Policy is inconsistent with the Act, which in this area confers a very broad discretion on the Minister either to approve or refuse the grant of citizenship.
In present circumstances, the only relevant consideration is whether Krishni and Tristan would suffer significant hardship or disadvantage if refused citizenship. Chapter 3 of the Policy elaborates on the meaning of significant hardship or disadvantage. In general, the material there, which relates to matters such as whether a person could secure employment, is not relevant to children. The Minister argued that Krishni and Tristan will continue to receive the main benefits of living in Australia, as these come with permanent residency rather than citizenship. Thus education, social security, family assistance and health care are all available to them.
Australia is a party to the Convention on the Rights of the Child, having ratified that instrument in 1990. The Policy notes that Article 3 of that Convention commits states (sic) parties to take into account the rights of children in all decisions concerning them made by courts and administrative bodies, among others. The enumerated rights in the Convention include the right to a nationality and to be cared for by the child’s parents (Article 7), to medical assistance and health care (Article 24), to social security support (Article 26) and to education (Article 28). The Convention places considerable emphasis on the importance of maintaining the family unit and the bond between parents and children.
In all the circumstances of this matter, it would be difficult to conclude that Krishni and Tristan would suffer significant hardship or disadvantage if refused citizenship. They remain with their parents and will have their care and attention; I have no evidence that they would be at risk of going without the essentials of life. They will have access to the basic services provided in Australia to all residents, including education, health care and social security. It is not contrary to the best interests of the children to refuse them citizenship when their parents’ citizenship has been refused. I conclude that the Policy should be applied to Krishni and Tristan, and the discretion to refuse citizenship to them should be exercised, despite their eligibility under subsection 21(5) of the Citizenship Act.
[109] Wijewardhanage and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 746, [37]-[40].
The Tribunal believes that this exposition of how to deal with the rights of the minor children balanced against Australia’s international obligations under the CRC, the provisions of the Act and the requirements of the Policy is entirely the correct approach to take.
As was made clear in Fenn,[110] the decisions at this stage to refuse the citizenship applications by the minor children do not prevent them from making another application at any stage. In relation to the two elder children, such an application could be made by their mother or by their father (through a separate application) on their behalf. In relation to the eldest child, he is able now to make an application in his own right. In relation to the youngest child, her father can make a renewed application at some later stage.
[110] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, [8].
Thus, on the basis that there is a sound public policy in maintaining the integrated citizenship status of the family and on the basis that denial of their applications presently before the Tribunal imposes no significant hardship upon the minor children, nor compromises their rights under the CRC, the Tribunal believes that the correct and preferable decision in this instance is to affirm the decisions refusing citizenship to the three children.
DECISION
For the reasons stated above, the Tribunal affirms the decisions under review in relation to the applicants Xiquan Qin, Nianrong Cai, Niankai Qin and Qianye Zhan.

I certify that the preceding 158 (one hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...............................[sgd]...............................
Associate
Dated: 17 April 2020

Date(s) of hearing: 6 and 7 February 2020

Date final submissions received: 14 February 2020

Counsel for the Applicant: Mr N Carney

Solicitors for the Applicant: Juris Cor Legal

Solicitors for the Respondent: Ms M Perotti, Sparke Helmore Lawyers

[2020] AATA 871

17 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Standing

Jurisdiction

Date(s) of hearing:	6 and 7 February 2020
Date final submissions received:	14 February 2020
Counsel for the Applicant:	Mr N Carney
Solicitors for the Applicant:	Juris Cor Legal
Solicitors for the Respondent:	Ms M Perotti, Sparke Helmore Lawyers