Re Chen and Minister for Immigration and Citizenship

[2007] AATA 1815

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1815

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/0490

GENERAL ADMINISTRATIVE DIVISION		)
Re		ERICA CHEN

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date28 September 2007

PlaceBrisbane

Decision The decision under review is set aside and remitted to the respondent for reconsideration on the basis that the Tribunal is satisfied the applicant meets the character test in s 13(1)(f) of the Australian Citizenship Act 1948.

.................[Sgd].....................

SENIOR MEMBER

CATCHWORDS

IMMIGRATION & CITIZENSHIP – Citizenship – character test – charges and warrant for arrest in Taiwan – allegations previously dealt with by Taiwanese court – evidence of good character – Tribunal satisfied applicant of good character

Australian Citizenship Act 1948 s 13

Migration Act 1958 s 501

Chiu-Yun Tseng and Department of Immigration and Multicultural Affairs [2001] AATA 519

REASONS FOR DECISION

28 September 2007 Senior Member B J McCabe         

1. Ms Erica Chen is a permanent resident of Australia. She applied for citizenship in 2001 but her application was rejected. The Minister says the applicant is not eligible for Australian citizenship because the Minister is not satisfied Ms Chen is a person of good character within the meaning of s 13(1)(f) of the Australian Citizenship Act 1948.

2.      The Minister’s doubts about Ms Chen’s character arose out of Ms Chen’s disclosure that criminal charges have been brought against her in Taiwan. She learned (and disclosed to the respondent) that a warrant has been issued for her arrest in connection with those proceedings. She has not returned to Taiwan to face court.

3.      Ms Chen says the Minister has seen ample evidence attesting to her good character. She says the charges which have been brought against her in Taiwan are an abuse of process as they have already been dealt with in another court. She adds she has good reasons for not returning to Taiwan to clear her name. The Minister, for his part, says the charges raise a question over her character and her failure to respond to the charges (most obviously by returning to Taiwan) mean he cannot be satisfied she meets the character test.

4. I am satisfied the applicant meets the character test in s 13(1)(f). I have therefore decided to set aside the respondent’s decision and remit the matter for reconsideration in accordance with these reasons.

the facts

5.      Ms Chen is from Taiwan. She has two children. Her former partner, and the father of her children, is Mr H. Ms Chen told the Tribunal she had a stormy relationship with Mr H in Taiwan. She claimed he was violent. She also said he was involved in criminal enterprises and has extensive contacts in the Taiwanese underworld and the police. She says she came to Australia with her daughter (her son was already studying in this country) in 1996 to escape Mr H after resolving to end the relationship. Mr H remains in Taiwan.

6.      The applicant entered this country on a business migrants’ visa. She became an Australian permanent resident on 10 August 1999. She applied for citizenship on 27 September 2001. Her application form appears in the T documents. The form includes a series of questions designed to assist the decision-maker to form an opinion about the applicant’s character. One of the questions asks about criminal proceedings that may be pending in any other country. Ms Chen truthfully responded that she was aware charges had been brought against her in Taiwan. She has been accused of forging documents.  

7.      The background to the charges is as follows. The applicant told the hearing the title to three properties had been transferred into her name by Mr H. Ms Chen says Mr H then took the title deeds and used them in a separate transaction as security for an advance. She says she knew nothing of this transaction. When she looked for the title documents at some later point, she could not find them. She assumed they were lost. She asked the equivalent of our land tiles office to issue fresh certificates so she could use the property as security for a loan from her sister. When Mr H’s business partner became aware fresh certificates of title had been issued, it complained that Ms Chen had lied to the authorities about the whereabouts of the original certificates of title in order to obtain some kind of advantage for herself. A criminal investigation was commenced and charges were preferred in 1998.

8.      Ms Chen returned to Taiwan to deal with the charges. She represented herself in the preliminary proceedings, although it appears she was also assisted by her sister’s lawyer. Her sister was also charged. 

9.      The public prosecutor decided not to proceed with the prosecution. The reasons for its decision were set out in a memorandum of advice that was translated for the Tribunal: exhibit 4. The memorandum says, in essence, that there was insufficient evidence to warrant prosecution of the applicant. The memorandum noted the evidence suggested Mr H had been dealing with the certificates of title.

10.     The Taiwan High Court ordered the prosecutor to reconsider the decision not to proceed against Ms Chen and her sister: exhibit 5. On reconsideration, the decision was affirmed: exhibit 6. Ms Chen returned to Australia. She assumed that was the end of the matter.

11.     Fresh charges were brought against Ms Chen in December 1999 in a different court. A copy of the indictment was translated and tendered in evidence before the Tribunal: exhibit 3. The charges appear to arise out of the same incident considered in the earlier proceedings. Ms Chen did not learn of the new charges until early 2001 when she applied for a new Taiwanese passport from the Taiwan Economic and Cultural Office. The Office informed her of the charges and told her an arrest warrant had been issued after she failed to respond to a summons. The Office retained her old passport. A copy of the warrant is found at document T5.

12.     Ms Chen’s Taiwanese lawyer says she should return to Taiwan in order to deal with the charges. He cautioned that the process could take at least six months. His opinion is contained in exhibit 2. She says she was told by Taiwanese officials that she would be arrested as soon as she arrived in Taiwan. She says she has also become aware of a letter from Mr H addressed to the prosecuting authorities suggesting Ms Chen was a flight risk. It recommended she be restricted from leaving the country and perhaps be kept in detention while the charges were dealt with. The letter was translated and read out during the course of the hearing. The applicant says she understood the recommendation was accepted and orders had been made by the prosecuting authorities to that effect.

13.     Ms Chen has decided not to return to Taiwan. She says she understands that is the only way to deal with the charges. But she worries she will not be able to care for her daughter if she is in Taiwan for an extended period, especially if she is in detention. She is also worried about what Mr H might do if she were to return. She appears to believe he has the ability to affect the outcome of the proceedings.

14.     I accept Ms Chen is a truthful witness. She has not attempted to conceal her legal troubles in Taiwan from the respondent, and she offered explanations for what has occurred. I was not referred to any evidence that would call her account into question. I am not in a position to judge whether her concerns about returning to Taiwan are justified, but I accept those concerns are genuinely held.

15.     The respondent also asked Ms Chen to provide a clearance from the Taiwanese authorities confirming she did not have a criminal record. Surprisingly, Ms Chen asked Mr H to obtain the certificate on her behalf. He furnished a document but it appears the document was forged. Ms Chen does not have a current Taiwanese identity card so she is unable to obtain the certificate herself without travelling to Taiwan. (There was some question over whether it was really necessary for Ms Chen to collect the document in person but I am satisfied after reading the material on the National Police Agency’s website (exhibit 7) that it is practically impossible for Ms Chen to obtain the clearance without travelling to Taiwan.) As it happens, the respondent has obtained confirmation that the applicant does not have a criminal record: exhibit 10.

the character test

16.     The parties agree my decision should be made having regard to the provisions of the Australian Citizenship Act 1948. I note a new Act has come into force but the parties agreed the old Act was applicable in this case.

17. The character test is contained in s 13(1)(f) of the Act. The section provides the Minister may approve the grant of a certificate of Australian citizenship:

“to a person who satisfies the Minister that:

…

(f) the person is of good character…”

18.     The wording of the test is important. It does not require that the Minister form an adverse view of the applicant’s character. The Minister must be positively persuaded that the applicant is of good character. Ms Linacre, for the respondent, said the Minister cannot be satisfied about the applicant’s character if there is evidence which calls that character into question.

19. Mr Steele, for the applicant, referred to me several cases that considered the character test in s 501 of the Migration Act 1958. Section 501 permits the Minister to cancel a visa if the Minister is satisfied the visa-holder is not of good character. Mr Steele noted that Deputy President Wright in Chiu-Yun Tseng and Department of Immigration and Multicultural Affairs [2001] AATA 519 said (at [17]) that a decision-maker should be cautious about using allegations of criminal conduct which have not resulted in a successful prosecution as the basis for a finding that the visa-holder is a person of bad character (or, to be more precise, to make a finding that the person is not a person of good character).

20. The wording of the character test in s 501 of the Migration Act 1958 is subtly different to the wording of the character test in s 13(1)(f) of the Australian Citizenship Act 1948. The former requires a positive finding that the visa-holder is not a person of good character. The latter requires a positive finding that the applicant is a person of good character. Cases in relation to s 501 must therefore be treated with caution for present purposes.

21.     Where evidence raises a question in the mind of the decision-maker over the fitness of the applicant, it is incumbent on the applicant to adduce evidence that will enable the Minister (or the Tribunal upon review) to conclude that the person is of good character notwithstanding the questions that were raised. It may not be possible to answer the allegations directly – for example, by comprehensively disproving the allegations – but the decision-maker must be provided with a level of comfort about his or her decision.

22.     In this case, the applicant has received a number of positive endorsements from members of her local community. These are set out at documents T10 and T11. She appears to be a successful business woman with strong community ties. That information on its own suggests she is of good character. Do the allegations against her in Taiwan displace that inference?

23.     I note the evidence before me suggests the allegations were considered in 1998. The more recent indictment does not refer to new evidence, and it was issued without the benefit of the testimony of Ms Chen. The indictment appears to revisit the old allegations. The fact the allegations appear to have been raised and considered at some length before suggests I should not assign a great deal of weight to the renewed allegations. I do not think those allegations on their own are enough to make me doubt Ms Chen’s character in light of the other evidence.

24.     Ms Linacre suggested the Minister’s real concern was Ms Chen’s failure to respond to the allegations in a direct and vigorous way. Ms Chen made it clear she will not return to Taiwan and she has not taken any other steps to challenge the court’s jurisdiction or defend her name. Ms Linacre says that is unusual and calls the applicant’s character into question.

25.     While Ms Chen’s response to the allegations (and her decision to involve Mr H in the quest for a police clearance certificate) has properly raised a question over the applicant’s character, I am satisfied she has provided an adequate response. I accept the reasons she gave for not returning to Taiwan to face the charges. I also accept her explanation that her lawyer has told her that returning to fight the charges is the only course open to her. Having decided not to return, I accept she genuinely believed there was nothing more to be done.

conclusion

26. I am satisfied the applicant is a person of good character. I therefore set aside the decision under review and remit it to the decision-maker for reconsideration pursuant to s 43(c)(ii) of the Administrative Appeals Tribunal Act 1975 on the basis that the Tribunal is satisfied the applicant meets the character test in s 13(1)(f) of the Australian Citizenship Act 1948.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .....................................................................................
  Associate:     Stephen O’Grady

Date of Hearing  24 September 2007
Date of Decision  28 September 2007
For the applicant  Mr Steele, of counsel
For the respondent                   Ms Linacre, solicitor