Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs

[2005] AATA 1255

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1255

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2005/239

GENERAL ADMINISTRATIVE DIVISION		)
Re		HARRY TARADEL

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member McCabe

Date19 December 2005

PlaceBrisbane

Decision The decision under review is affirmed.

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

BJ McCabe

SENIOR MEMBER

CATCHWORDS

IMMIGRATION & CITIZENSHIP – Citizenship – discretion to deprive citizenship exercised - applicant convicted of migration offences for false and misleading statements on visa application – consideration of the “public interest” – deprivation of citizenship was not contrary to the public interest.

Crimes Act 1914 s 28B

Migration Act 1958 ss 35, 234

Australian Citizenship Act 1948 s 21

Director of Public Prosecutions v Smith [1991] 1 VR 63; (1989) 100 FLR 6

McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70; (2005) 200 ALR 587

Re Prasad and Minister Assisting the Minister for Immigration Local Government and Ethnic Affairs (1993) 30 ALD 292; (1993) 17 AAR 520

REASONS FOR DECISION

19 December 2005 Senior Member B J McCabe

1.      Mr Harry Taradel is the applicant in these proceedings. He came to Australia in 1998 after being granted a subclass 104 (preferential family) visa. He was eligible to apply for a visa under this subclass because his mother was already living in Australia. Mr Taradel applied for Australian citizenship in 2000. He was granted citizenship on 29 March 2001 after the decision-maker was satisfied the applicant satisfied the character test and had lived in this country for the requisite period. The respondent revoked Mr Taradel’s citizenship on 8 February 2005 after discovering he made false statements on his initial visa application. The Minister’s delegate wrote to the applicant informing him of the decision on 18 February 2005. The applicant has asked the Tribunal to review the Minister’s decision.

2.      I am satisfied the Minister’s decision should be affirmed. For reasons I will explain, Mr Taradel should be deprived of his citizenship.

The material before the Tribunal

3. The Tribunal was provided with the documents required pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). Two pages were tendered at the hearing to supplement the incomplete Department of Immigration, Multicultural and Indigenous Affairs (the department) record of interview of the applicant (T15).  The following documents were also tendered in evidence:

·Statement of Harry Francis Taradel dated 13 July 2005 (exhibit 2);

·Supplementary statement of Harry Francis Taradel dated 2 September 2005 (exhibit 3);

·Statement of Ray Dorrstein dated 11 July 2005 (exhibit 4);

·Statement of Presentacion Anunciacion Varela dated 13 July 2005 (exhibit 5);

·Statement of Clarita Dorrstein dated 11 July 2005 (exhibit 6); and

·Statement of Eric Andrew Capelli dated 12 July 2005 (exhibit 7).

4.      Mr Taradel gave evidence at the hearing. The applicant’s mother – Ms Presentacion Anunciacion Varela - also gave evidence at the hearing.

5.      The applicant was represented by Mr O’Brien. The respondent was represented by Mr McLeod.

The factual background

6.      Mr Taradel was born in the Philippines on 26 September 1963. In January of 1997 he completed an application for a subclass 104 (preferential family) visa. The application was sponsored by Mrs Presentacion Varela, an Australian citizen. The applicant indicated that sections of the visa application referring to spouses and children were not applicable to him. He claimed he was a single man. The applicant signed a declaration at the end of the visa application form stating all information supplied on or attached to the form was complete, true and current in every detail.

7.      The applicant was granted a subclass 104 visa in August of 1998. He entered Australia on 9 October 1998. He became eligible to apply for citizenship in 2000. He was granted Australian citizenship on 29 March 2001.

8.      To the surprise of the department Ms Estrella Nora Taradel lodged an application for a subclass 309 spouse (provisional) visa in December of 2001. Ms Taradel was sponsored by the applicant. The visa application form indicated the applicant was the partner of Ms Taradel and the couple had three children born between 1992 to 1998. Statutory declarations made by Mr and Ms Taradel in support of the visa application disclosed the couple were involved in a steady relationship in 1988 and in 1992 the couple decided to live together. The couple married in the Philippines on 28 April 2001.

9. The department subsequently investigated the applicant for submitting a visa application containing false or misleading information about his relationship status. The applicant pleaded guilty to a charge under s 28B of the Crimes Act 1914 and a charge under s 234(1)(b) of the Migration Act 1958 in the Brisbane Magistrates Court on 14 April 2003. The applicant was convicted and fined $3300 for each offence and was ordered to pay Court costs.

10.     In his statements (exhibits 2 and 3), the applicant discussed his background in the Philippines, his life since moving to Australia, his relationships with people in both Australia and the Philippines, and the possible detriment losing his citizenship would cause.

11.     The applicant says since being in Australia he has been self sufficient and has never received social security benefits. The applicant says he enjoys his work as a steel fixer and welder and has recently commenced further studies in the field at the Yeronga Institute of Tafe. He has bought a house which he is still paying off. He provides financial and emotional support to his mother here in Australia and financially supports his wife and children in the Philippines. The applicant also assists his mother and her partner with household maintenance and other manual labour when required.

12.     When the applicant was a child his mother went to England to train as a nurse for 20 years. She returned to visit the applicant when she could. The applicant now describes being in Australia with his mother as a ‘dream come true’ (exhibit 2 at paragraph 18). He has a close relationship with his aunt and uncle whom reside between Brisbane and the Gold Coast (see exhibits 4 and 6). The applicant also gives them regular assistance with maintenance and repair work. The applicant’s aunt suffers from Lupus.  

13.     The applicant said that if he were deported he would:

·lose his job;

·lose his home;

·face uncertainty when returning to the Philippines;

·be forced to find new employment; and

·be separated from his mother, extended family and friends in Australia.

14.     He also noted his:

·mother, wife and children would lose financial support;

·his mother, aunt and uncle would lose the non-financial support he provides; and

·his employer would lose a valued employee. (Mr Eric Andrew Capelli confirmed Mr Taradel was a valued and highly skilled employee whom would be difficult to replace (exhibit 7)).

15.     The applicant emphasised that apart from his migration offences he has otherwise been of good behaviour. He has lodged annual tax returns for each year he has been resident in Australia and voted in every local, state and federal election since obtaining citizenship.

16.     Ms Varela, the applicant’s mother, also gave evidence at the hearing. She told the Tribunal she did not receive any Centrelink benefits and as such relied on Mr Taradel for financial support. She said she had some investments which provided her with interest income. She also said her partner had some money but explained she does not live extravagantly.

The law

17.     The power to cancel Australian citizenship is contained within the Australian Citizenship Act 1948 (the Act). The respondent revoked the applicant’s citizenship on the grounds that the applicant was a person to whom s 21(1)(a)(iii) of the Act applied. Section 21 of the Act relevantly states:

Deprivation of citizenship

(1) Where:

(a) a person who is an Australian citizen by virtue of a certificate of Australian citizenship:

…

(iii) in respect of a person who was granted the certificate of Australian citizenship as a result of an application for the certificate made after the commencement of this subparagraph—obtained the certificate as a result of migration-related fraud; and

(b) the Minister is satisfied that it would be contrary to the public interest for the person to continue to be an Australian citizen;

the Minister may, in the Minister's discretion, by order, deprive the person of his or her Australian citizenship, and the person shall, upon the making of the order, cease to be an Australian citizen.

18.     The Tribunal exercises the Minister’s powers upon review. The discretion to deprive the applicant of his citizenship is not enlivened unless the applicant satisfies 21(1)(a). The parties accept that subparagraph (a) is satisfied in that the applicant obtained his certificate of Australian citizenship as a result of migration-related fraud. My task is to determine whether it would be contrary to the public interest for the applicant to continue to be an Australian citizen.

Consideration and application of the law

19.     The term “public interest” is not defined in the Act. The Supreme Court of Victoria in Director of Public Prosecutions v Smith [1991] 1 VR 63 at 75 described the “public interest” as follows:

It is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the well being of its members.

20.     This description of the public interest was recently endorsed by Tamberlin J in McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 at paragraph 13. His Honour said (at paragraph 12):

The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where the public interest resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that “the public interest” can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable.

21. The approach I must take in exercising the discretion within s 21(1) is to weigh up the advantages to the Australian society of depriving the applicant of his citizenship against the disadvantages to the Australian society, the applicant and other persons in doing so: see Re Prasad and Minister Assisting the Minister for Immigration Local Government and Ethnic Affairs (1993) 30 ALD 292 at 302.

22.     The respondent submitted that telling lies to the immigration department in connection with a visa application was always a serious matter that might override other considerations. But one must examine each case on its facts. It would be a mistake to elevate concerns over migration fraud to the status of an inflexible rule of law stating that anyone ever convicted of a migration-related fraud must necessarily be stripped of his or her citizenship. If parliament had intended to do that, it would have said so in the legislation.

23.     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 applicants know, after all. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly. But I must also look to any prejudice to the applicant and others arising from the cancellation of his citizenship.

24.     Mr O’Brien argued that the applicant had already been convicted and punished for his migration offence and that any further punishment by way of depriving the applicant’s citizenship would amount to something akin to double jeopardy. But it is unclear how much the applicant will suffer if that decision is made.

25. If the applicant is deprived of his citizenship he is able to remain in Australia on an ex-citizen visa: see s 35 of the Migration act 1958. As a holder of an ex-citizen visa the applicant is unable to leave Australia to visit his wife and family in the Philippines. He is still able to support his family in Australia, provide financial support to his family in the Philippines, remain employed here and keep his house. Cancellation of the applicant’s citizenship does not greatly change the applicant’s circumstances save removing his ability to travel in and out of Australia at his leisure.

26.     The applicant noted his case would be referred to the Border Control and Compliance Division of the department which considers whether to deport non-citizens who reside in Australia on the basis of bad character (T32, p235). The respondent agreed that referral would happen as a matter of course but suggested it would be pointless to speculate about the outcome of those deliberations. I agree that if the applicant were removed from Australia through that process, all of the bad consequences he foreshadowed would come to pass.

27.     While I would not seek to pre-empt the outcome of the department’s deliberations, it would be surprising if a decision were made to remove the applicant in the absence of further evidence. But for his initial dealings with the department, the applicant appears to be a desirable immigrant. He is hardworking, skilled and family-oriented. He has shown a commitment to exercising his rights and duties as a citizen.

28.     Assuming the applicant is not removed from Australia, it is difficult to identify real detriment should his citizenship be revoked. His life would not change a great deal, and he would presumably be entitled to apply for citizenship again in due course. It is true he may not be able to travel overseas and he will experience stress as the department considers whether or not he should be removed on character grounds.

29.     When balancing the interest in deterring others from committing migration offences and maintaining the integrity of the system on one hand with the interests of the applicant and his supporters on the other, I accept the public interest requires that the applicant’s citizenship be revoked.

Conclusion

30.     The decision under review is affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:
  Associate:     Sam J Appleton

Date of Hearing  12 September 2005
Date of Decision  19 December 2005
The applicant was represented by Mr O’Brien of counsel.
The respondent was represented by Mr McLeod of counsel.