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

[2020] AATA 549

Valle and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 549 (3 February 2020)

Division:GENERAL DIVISION

File Number(s):      2019/4095

Re:Shallom Corpus Valle

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member 

Date:3 February 2020

Date of written reasons:        16 March 2020

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter on 3 February 2020, the Tribunal decides that the Reviewable Decision dated 11 June 2019 to refuse the Applicant’s Application for Australian Citizenship by conferral is affirmed.

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

Mr S Evans, Member 

Catchwords

CITIZENSHIP – application for Australian citizenship by conferral – whether applicant is of good character – where applicant provided false and misleading information over a long period of time – where applicant mislead by omission – Citizenship Policy – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21

Migration Act 1958 (Cth) s 101

CASES

Irving v Minister for Immigration, Local Government & Ethic Affairs (1996) 139 ALR 84

Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082

Zheng and Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Mr S Evans, Member

16 March 2020  

1. Shallom Corpuz Valle (“the Applicant”) is a citizen of the Philippines. She applied to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent” or “the Department”) for Australian citizenship by conferral in accordance with the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”) in March 2015.

2. A delegate of the Minister refused Ms Valle’s application and set out the reasons for that decision in a Decision Record dated 11 June 2019 which was provided to the Applicant. On 10 July 2019 Ms Valle applied to the Tribunal for a review of that decision.

3. On 3 February 2020 I affirmed the decision and refused Ms Valle’s application for Australian citizenship by conferral. At the time I gave reasons for my decision orally. I now provide my reasons in writing.

   BACKGROUND

4. The Applicant holds a permanent visa with return rights to Australia. Ms Valle was married but is now separated. The couple have an Australian citizen daughter who is a minor and lives with the Applicant.

   LEGISLATION AND POLICY FRAMEWORK

5. Under section 21(2)(h) of the Citizenship 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”

   Determining questions of character

6. The expression "good character" is not defined or qualified by the Act. The expression was considered by the Full Court in Irving v Minister for Immigration, Local Government & Ethic Affairs[1] in the context of the power of the Minister to refuse to issue a visa. Justice Davies said:

   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: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person's inherent qualities. 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.[2]

   [1] (1996) 139 ALR 84.

   [2] (1996) 139 ALR 84 at 88-89.

7. To similar effect, 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.[3]

   [3] Ibid at 94.

8. The Department’s official guide in these matters, the Citizenship Policy (“the Policy”), provides guidance for decision makers including the Tribunal in considering the good character provisions under the Act.

9. Informed by the discussion in Irving the Policy suggests 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.[4]

   [4] Section 37 documents, p. 159.

10. The phrase “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time, the distinguishing of right from wrong, behaving in an ethical manner, and conforming to the rules and values of Australian society.

11. The Policy specifically identifies some of the characteristics which would define an applicant of good character. Relevantly these include:

    Characteristics of good character

    … an applicant of good character would:

    ·respect and abide by the law in Australia and other countries

    …

    ·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:

    oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications

12. The Tribunal was guided by these considerations in determining whether Ms Valle meets the good character requirement for Australian citizenship.

    ISSUE FOR THE TRIBUNAL

13. The sole issue for determination in this application is whether the Tribunal can be satisfied that the Applicant is of good character.

    EVIDENCE AND SUBMISSIONS

    Ms Valle’s migration record

14. Ms Valle first arrived in Australia as the holder of a tourist visa on 18 October 2006. She was travelling under the identity of a relative, Rhadilarla Dela Cruz. When her tourist visa expired on 18 January 2007, the Applicant, travelling under an assumed identity, became an unlawful non-citizen. The Applicant left Australia on 8 June 2007 and was subject to an exclusion period of three years.

15. In October 2007 the Applicant, using her real identity, applied for a prospective marriage visa which was granted in April 2008. She returned to Australia on 12 May 2008.

16. Before the Tribunal are a number of documents relating to the Applicant’s migration history. These include an application for a Combined Spouse Subclass (UK 820/BS 801) visa from December 2008 (“the spousal visa application”) and the Applicant’s 3 March 2015 Application for Australian Citizenship by Conferral (“the citizenship application”).

17. On 30 June 2017 the Respondent notified the Applicant that it may cancel her BB-155 Resident Return visa on the basis of non-compliance with section 101(b) of the Migration Act 1958 (Cth) (“the Migration Act”). Section 101(b) provides that a visa application must be correct, and a non-citizen must complete their application form so that “no incorrect” answers are given or provided.

18. Having received the notification, Ms Valle wrote to the Respondent on 5 July 2017. In the letter Ms Valle conceded that she had travelled to Australia using a different identity.

19. The Applicant told the Tribunal that she travelled to Australia under an assumed identity in 2006 and 2007. She had, she said, used the identity of her relative when applying for her passport in the Philippines because her cousin was older. She wanted to be “older” at the time because it would make it easier to secure work in Israel. This is a variation on the Applicant’s original claim that the legal working age in Israel was 25 at the time. Whilst there is no evidence before the Tribunal to support this contention, the Tribunal accepts that the initial motivation for assuming her cousin’s identity was to assist the Applicant’s efforts to secure employment in Israel.

20. The Minister’s determination that the Applicant fails the character test rests on her migration record and dealings with the Department. The Minister submits a number of examples where the Applicant has provided false or misleading information.

21. In the 2015 citizenship application, for example, Ms Valle is asked to provide the date she first arrived in Australia which she incorrectly lists as “12 May 2008”. Asked in the same application if she has ever been removed or deported from Australia, Ms Valle answers “no”.

22. In the spousal visa application the Applicant is asked if she has ever held a Bridging visa E. She incorrectly answers “no”. In the same application she does not provide a response to the question ‘other names you are, or have been, known by’. Required to provide details of previous visits to Australia she answers “N/A”. Where the application asks for details of the applicant’s employment history for ‘the entire period since leaving school until now, including periods of unemployment’, Ms Valle goes only as far back as October 2007, when she states she was working in the Philippines.

23. I find that Ms Valle engaged in a deliberate attempt to mislead the Department by provision of false information and the omission of information. She failed to be honest about her previous travel to Australia under a false identity.

    Other issues

24. The Applicant submits that she separated from her ex-husband in February 2015. She contends that domestic violence was a factor in their separation. She also shares care of her daughter with her ex-husband. The Tribunal accepts that these factors placed additional pressure on the Applicant to secure her immigration status in Australia.

25. The Applicant also contends that she relied on the advice of others, notably “her ex-husband’s mother’s friend” to complete the prospective marriage visa. The evidence of the Applicant in regards to this was unconvincing. Even if others did advise her on completing government documents, beginning as she contends with her application for a bridging visa in 2007, it does not absolve her of responsibility for submitting the documents. Further, the Tribunal notes that the provision of misleading information occurred on multiple occasions over an extended period and included the citizenship application itself.

26. The Applicant contends that her character references demonstrate that she is highly regarded as a mother, friend, employee and colleague and has provided statements or letters of support from her employer, a friend and a colleague. Whilst all speak highly of her, they do not indicate they were aware of the reasons why her application for Australian citizenship was refused.

    CONSIDERATION

27. Ms Valle was a young woman when she first entered Australia in 2006. Her initial mistake, to assume someone else’s identity, was made when she was just 22 years old as she was preparing to travel to Israel.

28. At that time she was living in a “poor family” in a small village. She had only known different legal and social norms. What she chose to do was not right, but it is mitigated somewhat by the context of her situation at the time, her youth and her naivety.

29. Ms Valle came to Australia in 2006 and overstayed her visa. When she left in 2007 she was prohibited from re-entering the country for 3 years as a consequence of overstaying. She returned to the Philippines. Having travelled the world the contextual mitigations referred to above no longer applied.

30. In 2008 Ms Valle chose to continue the deception when she applied for a prospective marriage and then a spousal visa under her real name. She was successful in both applications.

31. In 2015 when Ms Valle applied for Australian citizenship, she chose again to provide false information and to mislead by omission. Provided an opportunity to make good the mistakes of the past, Ms Valle chose to attempt to deceive. On that occasion she was seeking Australian citizenship.

32. Australian citizenship is a privilege and the community places high expectations on those upon whom citizenship is conferred. In Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082 Senior Member Puplick observed:

    Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.[5]

    Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.

    Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.

    [5] See Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [120].

33. It is in the context of this assessment that I must consider the Tribunal’s findings and the Applicant’s character.

34. Ms Valle has sought to mitigate her responsibility for providing false and misleading evidence to the Department. As detailed above some of the mitigating factors are accepted by the Tribunal. Whilst in many aspects she is the ideal candidate for citizenship, factors such as Ms Valle’s commitment to her daughter and work ethic do not outweigh the gravity of repeatedly making false and misleading statements or representations to the Commonwealth over an extended period of time. This is particularly so when false and misleading information was provided in the process of applying for Australian citizenship itself.

35. In light of these findings I conclude that Ms Valle is not of good character for the purposes of section 21(2)(h) of the Citizenship Act.

    DECISION

36. For the reasons stated above, the decision to refuse the Applicant’s application for Australia citizenship by conferral is affirmed.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated: 16 March 2020

Date of hearing:	3 February 2020
Applicant:	In person
Solicitors for the Respondent:	Mr C O'Sullivan, Australian Government Solicitor