Truong and Minister for Immigration and Border Protection (Citizenship)
[2017] AATA 1213
•8 August 2017
Truong and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1213 (8 August 2017)
Division:GENERAL DIVISION
File Number(s): 2016/5748
Re:Lan Ngoc Thi Truong
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment
Date:8 August 2017
Place:Sydney
The decision under review is set aside and the matter remitted to the Minister with a direction that the applicant is of good character, so that her application for citizenship by conferral may proceed.
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Deputy President B W Rayment
Catchwords
CITIZENSHIP – citizenship by conferral – eligibility – whether applicant of good character – ‘good character’, meaning of – significant visa overstay – consideration of applicant’s character, circumstances and conduct – decision set aside and remitted with a direction that the applicant is of good character
Legislation
Australian Citizenship Act 2007, ss 21(2)(h)
Migration Act 1958
Cases
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
Department of Immigration and Border Protection, Australian Citizenship Instructions (1 June 2016)
REASONS FOR DECISION
Deputy President B W Rayment
8 August 2017
BACKGROUND
Lan Ngoc Thi Truong, a permanent resident of Australia, has applied to the Tribunal for review of a decision of the respondent to refuse her application for Australian citizenship by conferral, a decision made on 27 September 2016. The Tribunal heard oral evidence from the applicant, her husband and several character witnesses, each of which were cross-examined by Mr Galvin, solicitor, representing the respondent. The ground of refusal of the application was that the Minister’s delegate was not satisfied that the applicant was of good character, within the meaning of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth). This review is focused on that question.
THE MEANING OF “GOOD CHARACTER”
The “good character” issue arising under the Citizenship Act falls to be considered in the light of the Preamble to the act, which provides as follows:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)by pledging loyalty to Australia and its people; and
(b)by sharing their democratic beliefs; and
(c)by respecting their rights and liberties; and
(d)by upholding and obeying the laws of Australia.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422, consideration was given to the good character test for the purposes of the Migration Act 1958 (Cth) and of regulations under that Act by the Full Court of the Federal Court. In the course of their reasons for judgment, their Honours made remarks capable of application to the good character considerations referred to in s 21 of the Citizenship Act. Davies J, with whose reasons Nicholson J agreed, said at page 424G that the question is primarily an issue of fact, and at page 425B that the term “good character” is not precise in its denotation. He continued: “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” referring to dictionary meanings. His Honour spoke of the objective facts and circumstances which it will be necessary for the decision-maker to take into account in particular cases, and added: “If persons speak well of the applicant, the decision-maker will take that into account.”
Lee J, on the other hand, referred to “the enduring moral qualities of a person” (which must be objectively understood) and suggested that the “good standing, fame or repute of that person” were outside the ordinary meaning of the words. I take that latter remark to be a minority opinion in Irving, because persons who speak well of the applicant may well do so, at least in part, because of the person’s good standing, fame or repute. In the hearing a number of persons spoke well of the applicant and that is a fact that in my view it is appropriate to take into account, in accordance with the majority judgment in Irving, together with what the evidence (whether of the applicant or others) shows about the applicant’s mental and moral qualities. What she has done will necessarily fall for detailed consideration, as will the propensity she has shown now to accept the obligations mentioned in the Preamble to the Citizenship Act.
The Minister has promulgated a Citizenship Policy with effect from 1 June 2016 and I have had regard to it, particularly Chapter 11, and to the non-exhaustive list of factors mentioned on page 147 of that document, which include that the applicant would respect and abide by the law of Australia and other countries, and not have “evaded immigration control”. That Policy appears to me to correctly eschew the idea that character assessment is a mere “check list” procedure.[1] I regard the advice given in the Australian Citizenship Instructions that “decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are satisfied, on a reasoned basis, that an applicant is or is not of good character” as sound advice, consistent with the view adopted in Irving, that the question is one of fact, involving the making of a value judgment by the decision maker.
[1] In agreement with the remarks of P W Taylor SC, Senior Member, in Mana and Minister for Immigration and Border Protection [2016] AATA 639.
CONSIDERATION
I turn to recount the important features of the applicant’s character, circumstances and conduct proved before me which, taken together, inform the value judgment which in my opinion represents the correct or preferable decision as to whether she is of good character.
The applicant is now 56 years of age, having been born in Vietnam on 23 November 1960. She came to Australia on the first occasion in 1992 when she was 31 years of age on a three-month visitor’s visa for the purposes of vising her younger sister, Phuong My Thi Truong, who she “dearly loved” and who had escaped Vietnam and arrived in Australia as a boat refugee in 1983. When the applicant’s sister left Vietnam the applicant vowed to observe a Buddhist vegetarian diet for her lifetime so her sister would be safe, a vow she continues to observe.
Her visa expired in July 1992 but the applicant failed to leave Australia. Nor did she take any steps to regularise her remaining here. Instead she stayed here without a visa until 1999. Whether that amounts to “evading immigration control” may perhaps be doubted, but the applicant fully appreciated that her visa did not permit her to remain here and did so before her visa actually expired.
She explained that on her arrival she found that her sister had fallen pregnant and that her sister’s marriage was in trouble, causing her much sadness. She said in her statutory declaration concerning her sister: “she was sad and lonely and I wanted to care for her because I am her older sister and in our customs (sic), duty-bound to care for her”. The sister and her husband later separated and divorced.
The applicant also met her present husband, Mr Minh Tan Ly, not long after her arrival in 1992, having been introduced by her parents-in-law, who knew her sister. She became friendly with Mr Ly and they began to go out together. He made a marriage proposal to her, but she decided not to marry him at that time. She was reluctant to marry because of a lack of trust in men, born of seeing her sister’s situation and the experience which she had of her own mother’s marital circumstances.
Either before she left Australia in 1999, or after she arrived in Vietnam, she agreed to marry Mr Ly, and wished the marriage to occur in Vietnam so her mother could attend. She did marry in Vietnam in 1999 and on 13 November 2000, their daughter An Ly was born in that country.
In 1999, an application was made for a Partner (Provisional) (Class UF) visa while the applicant was still in Vietnam. That application was refused in late 2000, and an application was forthwith made to the former Migration Review Tribunal (MRT) for review of the decision. The MRT set aside the delegate’s decision and thereafter in November 2001, the applicant obtained permanent residency and returned to Australia with her daughter. She has since lived with her family in Sydney. Her daughter is in year 11 at Hurlstone Agricultural High School.
The applicant has done what she can to support her daughter at school, including by such things as coaching her in mathematics in her early years, driving her to and from school and the like.
The applicant works as a process worker and has done so since her daughter turned nine. She and her husband are members of the Dong Tam Incorporated Association, described as a parent group aimed at promoting the preservation of Vietnamese language and culture amongst Vietnamese youth and their families through activities such as educational, artistic and sports training. She participates in social activities there with her husband, bringing food to such gatherings.
She is described by her husband and several Australians of Vietnamese origin who gave evidence before me as a good wife and good mother, and as a person well-regarded in her social circle who is helpful and kind to others.
Apart from having lived here after the expiry of her visa for almost seven years in the 1990s, she is a person who has been law-abiding in this country and in Vietnam. She is devoted to her family and in good standing in the community. She appreciates the seriousness of the illegality involved in her having lived here after the expiry of her visa, and regrets it. Her citizenship application is supported by all who gave evidence before me, notwithstanding their knowledge that for almost seven years she lived unlawfully in Australia after the expiry of her visitor’s visa in 1992.
I am satisfied that the applicant is of good character.
CONCLUSION
The decision under review is set aside and the matter remitted to the Minister with a direction that the applicant is of good character, so that her application for citizenship by conferral may proceed.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment
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Associate
Dated: 8 August 2017
Date(s) of hearing: 3 August 2017 Solicitors for the Applicant: Tang Duc Dao Solicitor Solicitors for the Respondent: Minter Ellison
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