Sui and Minister for Immigration and Citizenship

[2008] AATA 1062

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2008] AATA 1062

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3855

GENERAL ADMINISTRATIVE DIVISION        )

Re             Wing Yuen (Steven) SUI

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date27 November 2008

PlaceSydney

DecisionThe decision under review is affirmed.

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

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – Citizenship – whether applicant is of good character within the meaning of section 21(2)(h) of the Citizenship Act – applicant has serious criminal record – refusal to grant citizenship does not deprive the applicant in this case of any rights he currently holds – decision under review is affirmed.

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RELEVANT ACTS

Australian Citizenship Act 2007 (Cth) (the Act): ss 21

Migration Act 1958 (Cth): ss 200

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CITATIONS

Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84

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AUTHORITIES

Australian Citizenship Instructions (2000 edition) (the ACI)

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REASONS FOR DECISION

27 November 2008	Professor GD Walker, Deputy President
Basic facts

1.      The applicant Wing Yuen (Steven) Sui was born in Kwang Tong, People’s Republic of China in 1950 and is a Chinese citizen (T p198).

2.      He arrived on 26 June 1977 at Perth, Western Australia, as a temporary resident for 12 months on a T37 visa.  He entered as a karate instructor and was at that time aged 27.  He was granted permanent residence on 14 February 1979.

3.      He was formerly married to Kia Ing Ling, born March 1957, with whom he had two children born in 1985 and 1986.  He has four other children from a de facto relationship from 1970 to 1977 with Fie Ling Tan.  He married his present wife Nhu Nga (Jenny) Ngo in 2006.

4.      The applicant’s mother took him from China to Malaysia as a child, where he became a permanent resident.  When he came to Australia in 1977, his re-entry permit to Malaysia was for only six months.  Before it expired, he received a letter from the Malaysian authorities saying that if he wished to renew it, he would have to return to Malaysia within 14 days.  He gave the letter to departmental officials in Perth who endeavoured to help him in dealing with the Malaysian authorities, but the Malaysia authorities nevertheless cancelled his permit and revoked his permanent residency.

5.      As he was therefore unable to return to Malaysia, he was granted Australian permanent residence.

6.      The applicant has a considerable criminal history, commencing in Perth in 1978.  His criminal history in Perth included false pretences convictions for passing bad cheques in 1978 and 1980 and minor drug charges in 1981.

7.      In 1980, the applicant moved to New South Wales, where his most serious offending occurred.

8.      In 1984, he was convicted on charges of possession, supply and conspiracy to supply prohibited drug (heroin), and was sentenced to three years, six months in prison, with a non-parole period of two years.

9.      After a succession of other drug and drug-related offences, the applicant committed further supply prohibited drug offences (three counts) in 1989, which resulted in a 9-year sentence.  He was released from prison on 1 July 1996, remaining on parole for a further two years.

10.     In 2002, the applicant was charged with three other supply prohibited drug offences.  The applicant was indicted on one of those charges, but the Director of Public Prosecutions (DPP) ultimately decided not to proceed. 

11.     In 2002, the applicant was also convicted of possess prohibited drug and of false statement to obtain/renew/endorse an Australian passport.

12. In view of the applicant's criminal history, he was the subject of a deportation order under s 200 of the Migration Act 1958 (Cth) made on 28 February 1994 (T pp198-214). Consideration was also given to deporting the applicant in 1987, but it was decided not to make such an order. The applicant was not deported following the 1994 order (T pp182-189).

13.     The applicant applied for Australian citizenship on 9 January 2007.  The application was refused by a delegate of the respondent on 17 July 2007.  The applicant then applied to this tribunal for review of that decision.

14. At the hearing, Mr John Annan of counsel appeared for the applicant while Ms Thérèse Quinn, solicitor with DLA Phillips Fox appeared for the respondent. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents and supplementary T documents), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person while Mr Andy Wang and Bobby Sanz gave evidence in support by telephone, along with Mr Frank Kim Wa Choi who gave his evidence in support by telephone through a Cantonese interpreter.

15.     The respondent elected not to rely on pages 108 to 117 of the T documents or pages 1 to 86 of the supplementary T documents and I have not had regard to them.

Relevant law and policy

16.     The Australian Citizenship Act 2007 (Cth) (the Act) relevantly provides at s 21:

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Application and eligibility for citizenship

(1)…

General eligibility

(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:

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(h)is of good character at the time of the Minister's decision on the application.

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17.     The Australian Citizenship Instructions (2008 edition) (the ACI) may also be relevant in determining whether the applicant meets the requirement of good character as required by s 21(2)(h).  The relevant parts of chapter 10 of the ACI are:

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The term “good character” is not defined in the Act.  Decision makers must therefore be guided by the ordinary use of the words in making assessments.

It is the responsibility of the applicant to show that they are of good character. If a decision maker is not satisfied that an applicant is of good character at the time the application is to be decided, the application must be refused. There is no legislative provision to defer an application made under the Act.

If an application for citizenship by conferral must be refused because of the provisions of subsection 24(6) Offences, no assessment of good character is necessary.

An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record. However, general conduct and associations may also be relevant. If there is evidence to suggest that an applicant may not be of good character, the applicant should be given the opportunity to respond to this evidence. An applicant's behaviour does not have to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour.

The assessment of character for the purposes of the Australian Citizenship Act 2007 is a different and separate exercise to the assessment of whether a person meets the character requirements under the Migration Act 1958.

An assessment that a person meets the character requirements under the Migration Act 1958 does not mean that the person is necessarily of good character for the purposes of the Australian Citizenship Act 2007.

A decision not to cancel a visa under the Migration Act 1958 is not a relevant consideration in the assessment of good character for the purposes of the Australian Citizenship Act 2007.

A decision under the Migration Act 1958 to cancel a visa is relevant only insofar as it affects the visa status of an applicant for citizenship. A person whose permanent visa has been cancelled would no longer meet the eligibility requirement for conferral under paragraph 21(2)(b).

The possible outcome of an application to the Administrative Appeals Tribunal (AAT) for review of a decision to refuse an application for citizenship is not a relevant consideration in deciding whether or not an applicant meets the requirements of the Australian Citizenship Act 2007. In other words, decision makers must not make decisions based on what the AAT may or may not decide if the application were to be refused and application made to the AAT for merits review.

Assessing good character involves:

§establishing whether or not an applicant has a criminal record, and the nature of that record, if any;

§establishing whether or not there is other information relevant to the issue of character;

§according procedural fairness to the applicant where there is credible, relevant, and adverse information which the decision maker intends to take into account; and

§• considering the full circumstances relating to the relevant matters, including any comments by the applicant, character references, and other evidence of the applicant's behaviour.

A list of factors to which consideration should be given is at Attachment A. They include:

§the seriousness of any offences against ordinary community standards:

§crimes of violence, sexual abuse, drug trafficking, major fraud, harassment, stalking, armed robbery, crimes against children and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment;

§alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge. Decision makers may wish to obtain the comments made by the Judge in sentencing the applicant;

§offences committed prior to the grant of a permanent visa that were concealed from the visa decision maker should not normally be given less weight. The fact of deliberate concealment may be an indicator of a continuing lack of good character.

§whether or not an offence(s) committed overseas would be regarded as an offence in Australia. For example, a person charged with political offences in one country may not be considered guilty of a crime in Australia.

§whether there are any on-going obligations in relation to the sentence received, such as a good behaviour bond. Subsection 24(6) provides that an application for citizenship by conferral must not be approved during such periods.

§whether an offence was a one-off occurrence that can now be considered "out of character", or part of an ongoing pattern of behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see below).

§whether there were any extenuating circumstances relating to the offence. For example, an offence committed under periods of temporary psychological disturbance (including involuntary effects of medication, post-natal depression, battered wife syndrome) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.

§the applicants age at the time the offence(s) were committed. If the applicant committed the offence(s) at a young age, they may be given less weight depending on the nature of the crime and the applicant's subsequent record. It may be possible that the person has matured and become more law-abiding than as a youth, and that offences from that period in their life are less indicative of their current character than their actions as an adult.

A person's behaviour as evidenced by a criminal record is relevant to the assessment of character. Appropriate weight must be given to a person’s behaviour immediately prior to the making of a decision.

A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.

The applicant's behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not the applicant has stable employment, his or her status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights.

The onus is on the applicant to demonstrate that there has been a change in his or her character since last offending.

The applicant’s present reputation in the community should also be considered. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship.

Decision makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person's criminal background, and attest to a change in character since, should be given considerable weight.

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Issue

18.     The issue in these proceedings is whether the applicant is “of good character” within the meaning of s 21(2)(h) of the Act.

Applicant’s evidence

19.     In his affidavit of 27 October 2008 (Exhibit A1), which he adopted in his oral evidence, the applicant stated that he had served three prison sentences for offences of which he was convicted between 1979 and 1989.  The very long time he spent in prison gave him the opportunity to reflect on his actions and their consequences.  Having accepted responsibility for them, he ceased dwelling on the past and became committed to ensuring that he wasted no more time in jail.

20.     While in prison he undertook counselling, completed the HIV Peer Education Training course, obtaining peer educator recognition, and completed a communication counselling skills course.

21.     He was released from jail in 1996 and received very good reports from all those with whom he had dealt while in custody.

22.     In 2002, he was convicted of possessing a prohibited drug (ecstasy), goods in personal custody and making a false statement to obtain an Australian passport.  He was placed on a bond and completed the bond without breach.

23.     He had taken ecstasy because he felt that it helped to keep his asthma under control.  It made him feel more relaxed and his asthma was alleviated as a result.

24.     He applied for a passport using false documents because he wanted to see his mother in Malaysia for her 80^th birthday.  The 80^th birthday is very significant in Chinese culture and as he had not seen his mother since he left Malaysia is 1977, that was his primary motivation for seeking citizenship.

25.     He committed most of his offences when he was much younger, when he found it difficult to live in Australia where he had few friends, no relatives and often found it hard to support himself.  He was easily influenced and eventually mixed with the wrong crowd and was introduced to a life of crime.

26.     At 58 he is now happily married, has two adult children and is steadily employed as a security consultant.

27.     He accepts responsibility for the offences he committed in 2002 but stresses that he did so out of desperation, not having been back to Malaysia for over 30 years.  He has lived a crime-free life since 2002 and intends to continue doing so.

28.     In oral evidence he said he had been sentenced to imprisonment in 1980, serving five months on that occasion, 1984, when he served 18 months and 1989, when he received a sentence of nine years with a non-parole period of seven years for drug offences.

29.     All his false pretences convictions related to cheques he had written without sufficient funds.  He had believed that it was permissible to do so provided that he deposited the necessary funds later and had issued the first one at a time when he had no money.

30.     He married his first wife in 1981.  As she was continually goading him to make more money, he became a drug courier through mixing with the wrong type of people.

31.     When he wanted to visit his mother for her 80^th birthday, he approached the wrong people for help.  He could not obtain an Australian travel document as a non-citizen.  Nor could he obtain a Chinese passport, because he had no Chinese birth certificate and could not obtain one as the records had been destroyed during the Cultural Revolution.

32.     He had been working as a security consultant for three years.  Previously he had taught martial arts, as he had won the world karate championship in 1972 and was a 6^th-dan expert.  For a year or two he also worked two or three hours a night as a card dealer at Maxim’s Restaurant in Chinatown.

33.     He had never committed any breaches of a bond or probation.  Over the past six years he had reformed and was mixing with a different circle of people.

34.     In relation to his 1984 sentence, he said he had expected to receive $5,000 as courier for about 500 grams of heroin, but did not receive that amount because he owed $4,000 to a club for gambling.  He had resorted to gambling because of his wife’s demands for more money.  After his release in January 1986, he moved back with his wife at Vaucluse until they separated in 1988.  He continued to be a karate teacher and examiner, and also ran a private poker game.

35.     He acknowledged the correctness of Kitchington J’s sentencing remarks on 20 December 1991 (T p134-141).  He had initially pleaded not guilty, even though he had admitted his guilt to the police previously, because he wanted to discover who had accused him.  It proved to be the wife of his associate.  He had then pleaded guilty.

36.     Reminded that his counsel had submitted in the Magistrates’ Court hearing that his confession was inadmissible on the ground that it was involuntary, he replied that he did not know about that but had simply wanted to receive a lighter sentence.  He had not changed his plea because it had become apparent that the document would be admitted into evidence.

37.     The false birth certificate, driver’s license and other identifying documents he had used in 2002 had been obtained at a cost of $5,000 through a solicitor introduced by a friend.  He had known that the name was false but the solicitor had told him he could legally change his name and that by doing so he could obtain a passport that would enable him to visit his mother (T p65).

38.     For that reason, and because he used his own photograph, he did not consider the documents to be bogus.  He knew however, that the birth certificate was false.  Since being refused re-entry to Malaysia in 1977, he had not made further enquiries as to whether it would be possible to use an Australian certificate of identity for the purpose of visiting his mother in Malaysia.

39.     His traffic offences, mainly in relation to speeding, had led to his license being suspended or cancelled five times.

40.     The applicant admitted that he had re-offended in 1998 and subsequently despite having been warned of possible deportation in 1994.  He realised that he would have been deported if it had been possible to obtain a travel document for him.  He had not refrained from seeking a Chinese passport in order to eliminate the risk that he might be deported.

Applicant’s supporting witnesses

41.     Mr Andy Wang, director of Hong Young Capital Holdings Pty Ltd, stated that he had known the applicant for almost 11 years as a martial arts mentor and as a good friend.  He had met the applicant through martial arts training at the Jin Wu Kwoon Martial Arts Academy and had always known him to be polite, honest and caring.

42.     Mr Wang is aware of the applicant’s criminal past but believes the applicant now bears no resemblance to his previous self.  He has done well in his occupation as a security consultant and his character is much rehabilitated from the criminal figure known from the past.

43.     Mr Wang said he had learned a great deal from the applicant, not only in relation to martial arts techniques, but also about how to be “a right person”.  While his behaviour in relation to the 2002 offences had not been right, Mr Wang said he could see his point of view and how he had missed his family and especially his elderly mother.

44.     Mr Bobby Sanz, managing director of 1to8 Pty Ltd, which operates a chain of fashion stores and a merchandising business, has known the applicant as a valued employee who has worked for him as a security consultant for the past three years.

45.     He met the applicant about eight years ago as a customer in his then men’s wear store at Haymarket.

46.     About three years ago, the applicant began in his role as a security consultant with the company, providing the benefit of his experience and advice in all security matters for the business.  Mr Sanz said he had always found him to be honest, kind, well-mannered and punctual.  He was able to build great rapport with clients and colleagues, and was courteous in his dealings with customers.  He considered the applicant a person of good character who could be trusted and relied upon to perform consistently in his job.  He was hard working and committed to his rehabilitated life style as a family man and respected community member.  He had paid all his dues and deserved the chance to become an Australian citizen.

47.     Mr Sanz was recalled to give further evidence in chief after being fully acquainted with the applicant’s criminal history.  He said that the applicant had previously mentioned his problems with the law but Mr Sanz had not been interested and had not asked him to go into the details.  Now that he knew the specifics, it made no difference to his opinion.  He had come to know him over the years as a normal friend and he had never done anything wrong to him.  He highly recommended the applicant.

48.     Mr Frank Kim Wa Choi in his telephone evidence through a Cantonese interpreter adopted his statement of 20 October 2008, which stated that he had known the applicant for over 25 years as a fellow martial arts practitioner and as a long-time friend.  They had met while training at the famous Jin Wu Koon Shaolin double dragon kung fu academy over 25 years ago.  Their common interest in martial arts was a strong as ever, as was their continued friendship.

49.     Mr Choi is aware of the applicant’s criminal past and believes that he is a rehabilitated character today.  Within the community he is known as an honest and fair person who is always cheerful, polite and smiling.

50.     Mr Choi considers him a man of great integrity, extremely dedicated to his family and work, and entirely peace-loving.  He has a strong mind, high moral standards and the ability to think with great focus.  He is dedicated in his job as a security consultant and has been in continuous employment in that role for several years.

51.     In cross-examination Mr Choi said that he gets together frequently with the applicant, and at their meetings they discuss martial arts and life generally.  He had known the applicant in about 1984 and had always thought of him as honourable and responsible.

Applicant’s submissions

52.     Mr Annan said that while the applicant was not proud of his extensive criminal record, his last offence had been in 2002 and he had not been in jail for 12 years.  He had never breached a bond.

53.     His reports while in jail were very favourable and the sentencing judge had opined that he was well on the way to rehabilitation.  His Honour had recognised the applicant’s co-operation with the authorities, his great remorse and his admission of guilt.

54.     He was a reformed person of good character.  He had explained his 2002 offences, into which he had been led by a lawyer.  When confronted with them he admitted his guilt as soon as possible.

55.     The reports from his referees show that he understands the effects that his actions have had on others.

56.     When he first came to Australia as a karate world champion, he was cheated by his employer and was driven to writing worthless cheques in order to survive.

57.     He is now married, has two grown children and is in steady employment.  There is no risk that he will re-offend.  His strongest wish is to visit his elderly mother, now aged 86, in Malaysia.  He had tried to obtain other passports or travel documents.  An Australian certificate of identity would not necessarily enable him to visit China in order to try to obtain a birth certificate.

58.     The focus of the tribunal’s enquiry should be on his enduring moral qualities.  His evidence from the witness box, and that of his supporting witnesses, showed that he is now of good character.  The fact that others speak well of him should be taken into account as tending to show that he is reformed.  In Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, there had only been five years since the applicant’s last conviction. In this case six years have elapsed, and that period is long enough to show that he is completely rehabilitated.

Consideration

59.     The only issue in these proceedings is whether the applicant is “of good character” within the meaning of s 21(2)(h) of the Act.

60.     The term ”good character” is not defined in the Act.  The decision-maker is therefore to have regard to the ordinary meaning of the words in making assessment: see Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 where Davies J noted, at 87:

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It should also be observed that the term ‘good character’ is not precise in its denotation.  In one sense, it refers to the mental and moral qualities which an individual has.  In another sense, it refers to the individual’s reputation or repute  ...  I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such.  It does not.  But criminal convictions or the absence of them and character references are likely to be an important source of primary information.  If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant.  If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed.  If persons speak well of the applicant, the decision-maker will take that into account.

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61.     At p94 in the same case, Lee J further noted that:

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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 while the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25;117 FLR 455 per Miles CJ at FLR 459-60; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliffe at 1128-9, Lord Denning at 1138.

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62.     The applicant committed very serious crimes over a period of 25 years.  The worst aspects of his record were offences related to drug trafficking, a matter specifically declared by the ACI to be serious.  The pattern of offending over a long period negates any possibility that any of them could have been one-off occurrences.

63.     That he committed his earlier offences as a result of pressure from his then wife to make more money does not constitute an extenuating circumstance.

64.     He submits that his 2002 offences arose because he was in a desperate state of mind because of his inability to visit his elderly mother in Malaysia, having not seen her since 1977.  He had been led into law-breaking by a lawyer whose help he sought as a result of mixing with the wrong group of people.

65.     It does not appear, however, that he made any renewed enquiries about the possibility of securing the acceptance by the Malaysian authorities of an Australian certificate of identity rather than an Australian passport for the limited purposes of such a visit.

66.     While he sought to minimise the significance of the 2002 offences by stating that the lawyer had assured him that he could legally change his name, it is apparent he knew he was using and relying on false documents.  He had, after all, paid $5,000 for them.  In particular, he was well aware that he could not obtain a genuine birth certificate because the relevant records in China had been lost during the Cultural Revolution.

67.     The evidence shows that in 2002 the applicant could not have been categorised as a person of good character.  The ACI make it clear that a reasonable amount of time will need to have passed in order to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.

68.     The applicant seeks to rely on his good work reports from his time in jail, but his re-offending in 2002 shows that his rehabilitation at that time was far from complete and may only have been temporary.

69.     The applicant’s present reputation in the community is to be given weight, and his three witnesses, Mr Wang, Mr Sanz and Mr Choi were highly supportive.

70.     He is employed by Mr Sanz as a security consultant, presumably a position of some trust.  He has remarried and states that he is now mixing with a different group of people from those in whose company he slid into serious law-breaking.

71.     In my view the decision of Deputy President Breen in Fenn is very much in point.  In that case the applicant had made a concerted effort to turn his life around after a period of law-breaking, but the tribunal considered that it would take longer than the five years that had elapsed for there to be sufficient evidence that his character had been restored to the level required for a grant of citizenship.

72.     Mr Annan submitted that in the present case six years had elapsed, not five as in Fenn, but the record of the applicant in this case is much worse than that in Fenn and extended over a very long period of time.  His most recent offences included an offence of dishonesty relating specifically to the grant of a passport, one of the incidents of citizenship.

73.     Breen DP noted that a refusal to grant citizenship at that point did not deprive the applicant of any rights he currently held, nor did it prevent him from applying for citizenship again in a few years’ time when he could demonstrate a longer period of positive contribution to the Australian community.  The same is true in the present case.

74.     For the above reasons I determine that the applicant does not pass the character test in s 21(2)(h) of the Act and therefore affirm the decision under review.

I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   .........................[sgd]..................................................
               Renee Wallace, Associate

Date/s of Hearing:  29 and 30 October 2008
Date of Decision:  27 November 2008
Counsel for the Applicant:                 Mr J Annan
Solicitor for the Respondent:             Ms T Quinn, DLA Phillips Fox