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Sui and Minister for Immigration and Citizenship

Sui and Minister for Immigration and Citizenship

Case [2008] AATA 1062 27 November 2008

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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.
…
RELEVANT ACTS
Australian Citizenship Act 2007 (Cth) (the Act): ss 21
Migration Act 1958 (Cth): ss 200
…
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
…
AUTHORITIES
Australian Citizenship Instructions (2000 edition) (the ACI)
…
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sui and Minister for Immigration and Citizenship

Details

AGLC: Sui and Minister for Immigration and Citizenship [2008] AATA 1062
Case: [2008] AATA 1062
Decision Date: 27 November 2008

CaseChat Overview and Summary

In the case of Sui and Minister for Immigration and Citizenship, the applicant sought judicial review of the Minister's decision to refuse to grant him Australian citizenship. The applicant, Mr Sui, had a significant criminal history and was found to be of bad character, in accordance with section 21(2)(h) of the Australian Citizenship Act 2007. The Federal Court was tasked with determining whether the Minister's decision was lawful and if the applicant's rights had been adversely affected by the refusal.

The court was required to assess whether the Minister correctly applied the criteria for determining good character as stipulated by the Act and whether the decision was based on relevant considerations. Additionally, the court had to consider if the refusal to grant citizenship deprived the applicant of any rights he currently held. The central issue was the interpretation and application of the statutory criteria for good character and the effect of the refusal on the applicant's existing rights.

The court examined the legislative framework and the relevant authority, including the Australian Citizenship Instructions, and referenced previous cases such as Re Fenn and Minister for Immigration and Multicultural Affairs and Irving v Minister for Immigration, Local Government and Ethnic Affairs. The court found that the Minister's decision was grounded in the statutory criteria and was not arbitrary or unreasonable. Furthermore, the court determined that the refusal did not deprive the applicant of any rights he currently held, as he remained a permanent resident with existing rights unaffected by the citizenship refusal. Therefore, the court affirmed the decision under review.

The final orders of the court were to affirm the Minister's decision, finding that the Minister correctly applied the statutory criteria in determining that Mr Sui was not of good character, and that the refusal did not adversely affect any rights the applicant held at the time.

Orders