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

[2020] AATA 6071

Rong and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 6071 (18 December 2020)

Division:GENERAL DIVISION

File Number:          2020/0251

Re:Xue Rong

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member                

Date:18 December 2020

Place:Sydney

The Tribunal affirms the decision under review.

....[sgd]..................................................................

Mr S Evans, Member

CATCHWORDS

CITIZENSHIP – cancellation of citizenship approval – whether applicant is of good character – where applicant provided fraudulent documents for her visa application – where applicant claims fraudulent documents were provided by someone else – inadequate explanation – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Migration Act 1958 (Cth)

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Jill Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27

SECONDARY MATERIALS

Australian Citizenship [Policy Statement] (27 November 2020)

Australian Citizenship Procedural Instructions – CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Mr S Evans, Member

18 December 2020

INTRODUCTION

1. The applicant, Xue Rong, applied for Australian citizenship by conferral on 8 May 2018.  Her application was granted on 30 July 2019 and subsequently cancelled on 2 January 2020 by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”). The Minister found that Ms Rong was not of ‘good character’ – one of the statutory criteria for Australian citizenship – owing to having provided fraudulent documents in support of a previous visa application.  Ms Rong is appealing the decision to cancel the approval of her application on the basis of the fraudulent documents being submitted without her knowledge. 

2. For reasons I will explain, the decision under review will be affirmed. 

   HEARING

3. The matter was heard on 9 October 2020. Ms Rong, her migration agent and the representative for the Respondent appeared via videoconference in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth). Ms Rong and Ms RuiJin Yu both provided evidence under affirmation at the hearing.

   BACKGROUND TO THE APPLICATION

   2014 Visa Application

4. Ms Rong applied for a Skilled – Independent (Subclass 189) visa on 10 October 2014 (“the 2014 application”) in which she included Mr Jin Zhang (“Mr Zhang”) as a dependent on the basis that they were in a de-facto relationship.

5. In the 2014 visa application, Ms Rong stated that she and Mr Zhang had been in a relationship since 2 April 2013 and that she resided in an apartment in Eight Mile Plains in Queensland (“the Eight Mile Plains address”). 

6. On 1 January 2015, following lodgement of the 2014 visa application, Ms Rong emailed additional supporting documents which included copies of flight itineraries, details of her and Mr Zhang’s relationship and evidence of their common address. 

7. Included in the additional documents was a tenancy agreement in the name of Jin Zhang and Xue Rong for the Eight Mile Plains address which began on 24 October 2013 and finished the same date in 2014.  Also included were bank statements for Ms Rong’s Commonwealth Bank of Australia account.  One, dated 31 October 2013, showed her address as being Sunnybank, Queensland (“the Sunnybank address”).  Further statements for Ms Rong’s bank account were also forwarded to the Department. Beginning 1 November 2013 and 1 May 2014, they show her address as being the Eight Mile Plains address. 

8. Following receipt of the documentation, Ms Rong was granted a Skilled – Independent (Subclass 189) visa. 

   Citizenship application

9. Ms Rong applied for Australian citizenship by conferral on 8 May 2018 (“the citizenship application”) and her application was granted on 30 July 2019. 

10. On 25 September 2019, Ms Rong was sent notice that the Department of Home Affairs (“the Department”) was considering cancelling the approval of her citizenship because information provided in the course of the 2014 visa application may have been fraudulently altered.  The delegate wrote in part: 

    This gives rise to the issue of whether you have previously provided false and misleading information to the Department in order to engineer a migration outcome for another person that they may not have been otherwise entitled to, in a manner that would lead to a finding that you are not of good character. 

11. Ms Rong was asked to comment and to provide any information that she had which may demonstrate that she still met the eligibility criteria.  She provided a statutory declaration dated 27 November 2019 in which she wrote in part: 

    In about August 2014, I got to know an agent consultant by the name Andrew Liu through my friend Jacky who lives in Sydney.  Andrews’s company office was located at [redacted] in Sydney NSW. 

    …

    I met the agent in his office and told him that I would like to apply for the application as the main applicant and my de facto husband Jin Zhang as the family dependent. 

    After I engaged him with the service, Andrew asked me to bring him as much relationship evidence as I had and then he will lodge the application as soon as possible. 

    I was glad to hear that and told him I would get back home to do a search and would given him as much evidence as I could collect. 

    A few days later I returned to the office and gave him my and Jin Zhang’s bank statements at the Commonwealth Bank during the period of 2013 to 2014 as well as some photos taken together since that were all the thing I could locate in relation to de facto relationship evidence for the application. 

    After that I entrusted all my subclass 189 application to Andrew Liu to handle and paid the service fee.

    On 10 October 2014, Andrew Liu lodged the Application to the Department of Immigration and Border Protection.  Only by now have I found out the he lodged the application through an immi-account created by him in my name.  The correspondence after that were all replied on my behalf by Andrew Liu who would notify me for additional information and documents provision such as character reference (National Police Check), required health examinations, provision of my certified passport photocopies, etc. 

    In about January 2015, my subclass 189 was granted.  Andrew Liu informed me about that and he said his assistance was completed.

    I have never seen Andrew Liu again after that. 

    [errors in original] 

12. Ms Rong included with the statutory declaration a letter in which she apologised for the ‘inconvenience’ her application had caused and noting her involvement in the community, and adoption of the ‘Australian way of life’.  She also provided a number of character references. 

13. Having received Ms Rong’s response to the notice of intention to cancel the approval of her citizenship, a delegate of the Minister decided to cancel the approval on 2 January 2020, being satisfied that Ms Rong was not of good character for the purposes of subsection 25(2) of the Australian Citizenship Act 2007 (Cth) (“the Act”).

    CONTENTIONS AND EVIDENCE

14. The Respondent submits that Ms Rong fraudulently submitted altered bank statements in support of the 2014 visa application.  Those bank statements indicate that Ms Rong and Mr Zhang both resided together at the Sunnybank address and the Eight Mile Plains address. 

15. Ms Rong accepts that the bank statements were altered but denies any wrongdoing.  In a written submission on her behalf, it is stated that ‘[she] denies any knowledge or involvement in any fraudulent alteration and believes it was her former migration agent Mr Liu who was responsible’. 

16. As per her statutory declaration, Ms Rong claims that she provided Mr Liu with the information and documentation he requested and that he was responsible for lodgement of the 2014 visa application and supporting material to the Department. 

    Ms Rong’s evidence

17. In her evidence in chief, Ms Rong recalled that her relationship with Mr Zhang began towards the end of 2011 after they met at a singles party.  She said that at the time she lived on the Gold Coast.  She had done so since 2009 and continued residing there until 2013. 

18. When they met, Mr Zhang was studying in Brisbane.  Ms Rong recalled that she was living with friends in a share house and he would come and stay at her place.   

19. Ms Rong moved from the Gold Coast to a serviced apartment in Brisbane, but she could not remember exactly when, nor was she able to recall the address.  In questioning, Ms Rong estimated that it was 2013 or 2014 when she moved to Brisbane. 

20. When asked when she and Mr Zhang first shared an address together, Ms Rong was unable to recall.  She was also unable to recall the address that they shared. 

21. Ms Rong was asked during the hearing about how she came to engage the services of Mr Liu.  She explained that she was introduced to him by her friend Jacky.  As he was introduced through a mutual friend, she said that she trusted him.  She recalled that she and Mr Zhang had gone to meet with Mr Liu and confirmed that she had provided documents including the bank statements in support of her application to Mr Liu, but that the documents she provided were unaltered when she gave them to Mr Liu.  She claims to have paid Mr Liu $12,000 in cash for his services. 

22. Ms Rong testified that she came from a wealthy family in China and as a child she had everything arranged for her by others and had her own driver.  She claimed that her privileged upbringing shielded her from ‘bad people’ such as Mr Liu and she indicated her privilege may have contributed to her being exploited.

23. Ms Rong claimed that her and Mr Zhang separated as she wished to relocate to Sydney.  She maintains that the separation was very distressing for her.  She is now married to an Australian citizen and is concerned that the cancellation of her citizenship approval may impact her ability to remain with him in Australia.

    Character references

24. The Tribunal heard from RuiJin Yu who is a friend of Ms Rong.  She testified to Ms Rong’s generosity and trustworthiness. 

25. The Tribunal also has before it statutory declarations and character references which outline Ms Rong’s positive character traits.  Many refer to Ms Rong as the victim of her immigration agent and their belief that she will make a good Australian citizen. 

26. Ms Rong’s husband, Ziliang Zhong, writes that Ms Rong is a very caring person and he cannot survive in Australia without her.  

    LEGISLATIVE AND POLICY FRAMEWORK 

27. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

    Determining questions of character

28. Under paragraph 21(2)(h) of the Act, a person is eligible to become an Australian citizen if, among other things, the Minister is satisfied that the applicant:

    is of good character at the time of the Minister’s decision on the application.

29. The term ‘good character’ is not defined or qualified by the Act.  Its meaning was considered by the Full Court in Irving v Minister for Immigration, Local Government & Ethic Affairs[1] (“Irving”) in the context of the power of the Minister to refuse to issue a visa. Lee J said:

    Unless the terms of the Act and Regulations require some other meaning be applied, the words "good character" should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character…  Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.[2]

    [1] (1996) 68 FCR 422.

    [2] (1996) 68 FCR 422, 431-432.

30. The Department’s official guides to decision makers, includes both the Australian Citizenship [Policy Statement] and the Australian Citizenship Procedural Instructions: CPI 15 Assessing Good Character under the Citizenship Act (“CPI 15”). CPI 15 supplements the Policy Statement and provides guidance for decision makers, including the Tribunal, in determining whether Ms Rong is of good character.

31. Informed by the discussion in Irving, section 4.3 of CPI 15 states that:

    … a decision-maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.

32. CPI 15 specifically calls for the decision maker to ‘look holistically at an applicant's behaviour over a lasting or enduring period of time’.

33. The Tribunal was guided by these considerations in determining if Ms Rong meets the good character requirement for Australian citizenship.

    CONSIDERATION

34. The 2014 visa application received much attention during the course of the hearing.  However, other than Ms Rong’s verbal account of the engagement of Mr Liu, there is no evidence which supports or corroborates her contention that Mr Liu altered and then submitted the fraudulent documents on her behalf. 

35. There is no record of Mr Liu ever being engaged or acting on behalf of Ms Rong in relation to the 2014 visa application. Migration agents are legally required to notify the Department when giving assistance to visa applicants pursuant to section 312A of the Migration Act 1958 (Cth) and no such notification was received. Ms Rong has provided no written record of interactions with Mr Liu or evidence she paid him $12,000.

36. When asked to explain why Mr Liu might seek to fabricate documents to support a legitimate relationship, Ms Rong speculated that Mr Liu may have been seeking to build a reputation for himself by securing a positive outcome for her and Mr Zhang.  This explanation is not compelling, and the submission of fraudulent documents supports the Respondent’s contention that Ms Rong was not in a genuine de facto relationship with Mr Zhang. 

37. Ms Rong’s account of how the fraudulent documents were submitted is undermined by the fact that they were sent by the same email account that was recorded on her rental tenancy agreement with Mr Zhang.  Ms Rong denied that this was her email address, but this is not accepted by the Tribunal as it was the same address that was used in correspondence with the Department. 

38. In light of these considerations, and the absence of witness statements or documentary material which casts doubt on them, the Tribunal is satisfied that Ms Rong was personally involved in providing fraudulent documents to the Department in support of the 2014 visa application. 

39. Section 4.4 of CPI 15 states that an applicant of good character would respect and abide by the law and be truthful and ‘not practise deception or fraud in their dealings with the Australian Government’. It specifically states that the provision of false personal information during visa and citizenship applications is not something that a person of good character would do.

40. In Jill Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27, Deputy President McMahon outlined why providing false or misleading information to the Department in migration and citizenship matters is viewed so seriously:

    Many of the provisions of the section [ie in the Migration Act] are reflected in the regulations, particularly in schedule 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first sub-section to the giving of false information, the use of bogus documents and the making of false or misleading statements. These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the

    many reasons for coming to Australia.

41. It has been over five years since the fraudulent documents were submitted, and normally this would weigh in Ms Rong’s favour.  However, she has maintained her implausible explanation and claimed that the cancellation of her citizenship application is ‘an insult to her character’.  In doing so, she has demonstrated that the passage of time has not made her more inclined to observe the truth when dealing with government officials. 

    CONCLUSION

42. For the reasons stated above, the Tribunal is not satisfied that Ms Rong currently meets the definition of “good character” as this term is understood and has been interpreted by the Respondent, the courts and this Tribunal. 

    DECISION

43. The decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, dated 2 January 2020, is affirmed. 

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

..........[sgd]..............................................................

Associate

Dated: 18 December 2020

Date of hearing:	9 October 2020
Advocate for the Applicant:	Ms A Lee, Amy Migration
Solicitors for the Respondent:	Ms E Cannon, Clayton Utz