Velychko and Minister for Home Affairs (Citizenship) - [2019] AATA 2000

Velychko and Minister for Home Affairs (Citizenship) [2019] AATA 2000 (16 July 2019)

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2018/4862

GENERAL DIVISION )

Re: Viktor Velychko
Applicant

And: Minister for Home Affairs
Respondent
DIRECTION

TRIBUNAL: Senior Member K Raif

DATE OF CORRIGENDUM: 19 July 2019

PLACE: Sydney
IT IS DIRECTED that, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the text of the decision in this application is to be altered such that:

the wording of the decision is changed to:
The Tribunal affirms the decision to revoke the Applicant’s citizenship.
2.the wording in paragraph [60] of the reasons for the decision is changed to:
The Tribunal affirms the decision to revoke the Applicant’s citizenship.

…………[sgd]…………………..
Senior Member K Raif
Division: GENERAL DIVISION
File Number(s): 2018/4862
Re:Viktor Velychko
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member K Raif
Date:16 July 2019
Place:Sydney

The Tribunal affirms the decision to revoke the cancellation of the Applicant’s citizenship.
........................[sgd]...................................
Senior Member K Raif
CATCHWORDS
CITIZENSHIP – revocation of Australian citizenship – Applicant guilty of furnishing document that contained a false or misleading statement or information under Migration Act – guilty of making false or misleading statement under Citizenship Act – whether revocation of citizenship is in the public interest – consideration of the “public interest” – whether discretion to revoke citizenship should be exercised – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)
CASES
Director of Public Prosecutions v Smith (2005) 145 FCR 70
Eidson v Minister for Immigration and Border Protection [2017] AATA 1354
Ghumaan and Minister for Home Affairs (Citizenship) [2019] AATA 200
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663
Kleeman and Minister for Immigration and Border Protection [2017] AATA 875
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70
Osorio and Minister for Immigration and Citizenship [2007] AATA 59
O’Sullivan v Farrer and Another (1989) 168 CLR 210
Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255
Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs [1993] 30 ALD 292
REASONS FOR DECISION
Senior Member K Raif
16 July 2019
Background

This is an application for review of a decision made by the Minister for Home Affairs on 1 August 2018 to revoke the applicant’s Australian citizenship under s. 35 of the Australian Citizenship Act 2007 (Cth) (‘the Act’).
Prior to becoming an Australian citizen, the Applicant was a national of Ukraine, born in October 1970. He first entered Australia in 2000 and left the country in July 2004. The applicant then returned to Australia holding a Prospective Marriage visa and he was subsequently granted a temporary Partner and then a permanent Partner visa in December 2008. The applicant was granted Australian citizenship by conferral on 22 July 2011.
In June 2017 an officer of the Department wrote to the Applicant informing him of the possible revocation of his citizenship. The Applicant provided his comments and on 1 August 2018 the Minister made the decision to revoke the Applicant’s Australian citizenship. The Applicant seeks review of that decision.
The issues that arise on this review are:
(a)Was the Applicant an Australian citizen?
(b)Has the Applicant been convicted of a relevant offence or did the Applicant obtain the Minister’s approval to become an Australian citizen as a result of fraud?
(c)Would it be contrary to the public interest for the Applicant to remain an Australian citizen?
(d)How should the discretion be exercised?
LEGISLATIVE FRAMEWORK
Section 34 of the Australian Citizenship Act provides, in part:
Citizenship by conferral
(2) The Minister may, by writing, revoke a person’s Australian citizenship if:
(a) the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b) any of the following apply:
(i) the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;
(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);
(iii) the person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud within the meaning of subsection (6);
(iv) the person obtained the Minister’s approval to become an Australian citizen as a result of third‑party fraud within the meaning of subsection (8); and
(c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
…
Migration-related fraud
(6) For the purposes of this section, a person obtained the Minister’s approval to become an Australian citizen as a result of migration-related fraud if and only if:
(a) at any time, the person was convicted of an offence against:
(i) section 234, 236 or 243, or former section 244 (as in force before its repeal by the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008), of the Migration Act 1958; or
(ii) section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code;
that the person committed at any time before the Minister gave the approval; and
(b) the act or omission that constituted the offence was connected with the person’s entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia.
(7) Subsection (6) does not apply to a person in respect of an offence if the Minister is satisfied that the act or omission that constituted that offence was not in any way (whether directly or indirectly) material to the person becoming a permanent resident.
WAS THE APPLICANT AN AUSTRALIAN CITIZEN?
Information before the Tribunal indicates that the Applicant applied for Australian citizenship in April 2011 and he was granted Australian citizenship by conferral on 22 July 2011. It is not in dispute that the Applicant was an Australian citizen prior to the revocation of his citizenship. The Tribunal finds that the requirements of s. 34(2)(a) are met.
HAS THE APPLICANT BEEN CONVICTED OF A RELEVANT OFFENCE OR DID THE APPLICANT OBTAIN THE MINISTER’S APPROVAL TO BECOME AN AUSTRALIAN CITIZEN AS A RESULT OF FRAUD?
Information in the primary decision record, which the Applicant confirmed in his written submissions to the Tribunal, is that on 12 July 2016 the applicant pleaded guilty and was sentenced at the Downing Centre Local Court in relation to the following offences:
(a)One offence, namely to furnish or cause to be furnished for official purpose a document containing a statement or information that is false or misleading in a material particular – s. 234(1)(b) of the Migration Act 1958 (Cth); and
(b)Two offences, namely making a statement in relation to an application for Australian citizenship, knowing the statement to be false or misleading in a material particular – s. 50(1) of the Citizenship Act 2007.
The Tribunal finds that the Applicant is a person who has been convicted of an offence under section 50 of the Citizenship Act and the requirements of s. 34(2)(b)(i) are met.
The Tribunal further finds that the Applicant was convicted of an offence against s. 234 of the Migration Act 1958. The circumstances that led to the conviction are set out in the Respondent’s Statement of Facts, Issues and Contentions (SFIC). Essentially, the Applicant previously travelled to Australia and stayed in Australia between May 2000 and July 2004. He used a different name and made an application for a substantive visa, which was unsuccessful. When the Applicant made the application for the Class TO Prospective Marriage visa in 2005 and the application for the Class UK / BS Partner visas, the Applicant failed to disclose that he had previously been in Australia and that he was known by another name. He also failed to disclose that information in his citizenship application.
The Applicant concedes in his own SFIC, as well as his statement which was provided in support of his application, that he failed to disclose information in his visa applications.
The Tribunal is satisfied that the failure to disclose the Applicant’s previous visit to Australia and the use of a different identity was connected with the grant of the visas to the Applicant because there are several criteria relevant to visa grant that would require that information, including the Special Return criteria in Schedule 4 of the Migration Act, consideration of any debt to the Commonwealth in Item 4004 and assessment of the applicant’s character for the purpose of Item 4001 and s. 501 of the Act. The Tribunal is satisfied that the omission that constituted the offence was material to the Applicant becoming a permanent resident. The Tribunal finds that the Applicant had committed migration-related fraud as defined in s. 34(6) of the Act.
The Tribunal finds that the Applicant obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud. The Tribunal finds that the requirements of s. 34(2)(b)(iii) are met.
THE PUBLIC INTEREST TEST
The term ‘public interest’ is not defined in the Act. The onus of establishing what is in the public interest lies upon the Minister. There must be clear proof and “mere suspicion … on which no finding of fact could properly be made must be put out of the decision maker’s mind.”[1]
[1] Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs [1993] 30 ALD 292 at [292].
The dual considerations – maintaining the integrity of the citizenship process and the considerations of adverse consequences where citizenship is revoked, were discussed by the Tribunal in Prasad at [39]-[40]:[2]
... Together the two Acts[3] are designed to ensure, so far as is possible, that only persons of good character with an adequate knowledge of the responsibilities and privileges of Australian citizenship are granted citizenship. It is of paramount importance, therefore, that information relevant to the character of a person applying for citizenship which is provided to the respondent is true and given in a manner which is not likely to impede the proper assessment of that person's character.
Not every representation or statement made for a purpose or in relation to the Act is of such paramount importance as information relevant to character. A person may, therefore, have been convicted of an offence against s 50 and so meet the criterion set by subpara (i) of s 21(1)(a) without that fact being of great significance in relation to the criterion set by subpara (b). However, where a person applying for citizenship deliberately sets out to deceive the respondent so as to impede his assessment of that person's character, that person is subverting, or at least attempting to subvert, the legislation. When account is taken of that, together with the applicant's lack of candour and honesty in the evidence which he was given in these proceedings, I am satisfied that it would be contrary to the public interest for him to continue to be an Australian citizen.
[2] Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs [1993] 30 ALD 292 at [301]-[302].
[3] At that time, the Citizenship Act 1948 and the Migration Act 1958.
In Kleeman[4] at [43]-[45] this Tribunal considered the content of the term “public interest” as disclosed by the authorities:
[4] Kleeman and Minister for Immigration and Border Protection [2017] AATA 875.
In O’Sullivan v Farrer and Another[5] the High Court considered the meaning of the words “in the public interest” in legislation other than that before us in this application.
[5] O’Sullivan v Farrer and Another (1989) 168 CLR 210.
Mason CJ, Brennan, Dawson and Gaudron JJ said, in part:
...... the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgement to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”.[6]
In McKinnon v Secretary, Department of Treasury[7] Tamberlin J cited the above passage from the High Court’s judgement. His Honour referred to “public interest” as follows:
The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where ‘the public interest’ resides. The ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that ‘the public interest’ can be ascertained and served. In some circumstances, one of more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some context, interest such as public health, national safety, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations.
[6] O’Sullivan v Farrer and Another (1989) 168 CLR 210 at 216.
[7] McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 at 75-76.
In Director of Public Prosecutions v Smith, the Court said “public interest”
“…is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the well-being of its members.”[8]
[8] Director of Public Prosecutions v Smith [1991] 1 VR 63 at [75].
SM Puplick AM made the following remarks in Ghumaan[9]
The Tribunal therefore starts from the premise that there can be no greater public interest than in securing the territorial integrity of the nation…
Such territorial integrity is of course undermined if a nation is not able to determine who enters the country and passes across its borders.
This in turn requires that those, who are not citizens and who are seeking to become so, must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passport applications, passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement – applicable indeed, equally to citizens and non-citizens alike.
[9] Ghumaan and Minister for Home Affairs (Citizenship) [2019] AATA 200 at [134] – [137]. .
In Taradel, [10] the Tribunal noted:
I agree that dishonesty in dealings with the department is a very serious matter. The integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history. The department is not in a position to know what applicants know, after all. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly. But I must also look to any prejudice to the applicant and others arising from the cancellation of his citizenship.
[10] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [23].
WOULD IT BE CONTRARY TO THE PUBLIC INTEREST FOR THE APPLICANT TO REMAIN AN AUSTRALIAN CITIZEN?
The Applicant’s evidence to the delegate is set out in his written submission dated 29 November 2017. The Applicant concedes that he failed to disclose his previous visit to Australia and a different identity in his Prospective Marriage and Partner visa applications and in his applications for the Australian citizenship and passport, stating that this was a result of an improper immigration advice. The Applicant refers to his employment as a painter and states that he supports his partner, who has been diagnosed with leukaemia, and his son, who has been diagnosed with autism. His step-child is also dependent on him financially. The Applicant states that he provides financial and emotional support to all members of his family and care for his partner and son and is the sole breadwinner for the family.
The Applicant submits that it is not contrary to the public interest to allow him to remain in Australia and that it would be contrary to the public interest to revoke his citizenship and endanger his capacity to remain in Australia. The Applicant expressed regret for his offences and acknowledges the negative impact of his wrongdoing on the integrity of the Australian immigration law regime but he submits that what could be gained from the strict application of law in his case would be insignificant compared to the potential harm to the family. The Applicant submits that the revocation of citizenship is unlikely to result in specific deterrence due to the unlikelihood of him reoffending. He has not committed any other offences and has been an upstanding citizen. He completed the community service and his fraudulent behaviour was based on improper advice from a migration agent. The Applicant submits that his particular circumstances outweigh the benefit to be gained from the strict application of the law. The Applicant outlined the effect of revocation of the citizenship on his family, the financial and economic implications, the best interests of his children, the proportionality of punishment and his otherwise good character.
In oral evidence and submissions to the Tribunal, the Applicant outlined the hardship that would be caused to him and his family if he cannot travel overseas. The Applicant refers to the ongoing care he provides to his sister and his partner’s mother in Ukraine, stating that he relies on friends to provide such assistance if he cannot travel. The Applicant refers to his poor mental state and the effect it has had on his daily life and his interactions with his family and his business. The applicant states that his son’s well-being has also been affected because he is concerned about the Applicant having to leave the country.
In the SFIC the Respondent submits that the applicant’s dishonesty arose in his dealings with the Respondent’s department in the course of him applying for visas to return to Australia and the Australian citizenship and such conduct is not in the public interest as it undermines the integrity of the Australian immigration systems and frustrates the objects of the Migration and Citizenship Acts.
With respect to the Applicant’s claims that, given his circumstances, it is not in the public interest for the citizenship to be revoked, the respondent argues that these submissions are based on a false premise that the revocation of citizenship endangers his ability to remain in Australia, which is not the case. The respondent refers to the comments in Eidson[11] at [62]:
…I consider that the lengthy and serious nature of the Applicant’s migration fraud, as well as the potentially grave implications of identity fraud to the Australian community mean there is a great interest in deterring others from committing similar offences, and in maintaining the integrity of the immigration system more generally. Conversely, while there will be some impact on the Applicant, I do not consider its detrimental impact to be of any particularly great magnitude. Yes, she would lose her citizenship and her right to return to Australia should she leave. However, that is all she would lose. As far as is reasonable for me to determine, the Applicant will be allowed to maintain her residency, and continue running her business and participating in the Australian community.
[11] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354.

With respect to the Applicant’s claim that he is ‘otherwise of good character’, the Respondent submits that the Applicant’s character cannot be viewed separately from the offending conduct. Character is defined by reference to ‘the enduring moral qualities of a person’[12] and the respondent submits that the Applicant’s fraud is an important factor in understanding the Applicant’s moral qualities. The Respondent submits that the Applicant cannot be regarded as being of good character, particularly as his offences were extremely serious and continued over a long period of time between 2005 and 2016.
[12] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663 at [95]
The Respondent rejects the Applicant’s argument that he has already been punished and that the revocation of the citizenship would be a disproportionate response, noting that the revocation of citizenship is not a form of punishment but an administrative arrangement and a proportionate response designed to deter similar offending.
The Tribunal has considered the Applicant’s and the Respondent’s submissions and the totality of evidence.
The Tribunal considers the nature of the fraud to be significant. The fraud related to the Applicant’s identity and the Tribunal agrees with the comments in Ghumaan that Applicants are expected to be absolutely truthful in matters relating to their identity. It is imperative to the safety and protection of the Australian community and the orderly implementation of the migration legislation. The seriousness with which the issue of identity is considered in the Migration legislation is evident from the more recent introduction of Public Interest Criterion 4020(2A), which provides for a ten year exclusion period, with no waiver provision available, where a decision-maker cannot be satisfied of the visa applicant’s identity. While this provision did not apply at the time when the Applicant made his Prospective Marriage and Partner applications, the subsequent introduction of this provision emphasises how significant the matters of identity are considered in the migration regime.
The Tribunal also places weight on the fact that the fraud was perpetrated over a very lengthy period of time. The Applicant first entered Australia using a different identity in 2000. He engaged with the Department and the courts using that identity. The Applicant claims that on advice of his then agent, he returned to Ukraine and legally changed his name because he was concerned he could not get the visa otherwise. When he made the Prospective Marriage and Partner visa applications, the Applicant failed to disclose the earlier identity, his previous visa refusals and his stay in Australia. The Applicant was granted the permanent visa in 2008 and the obligation to be truthful in his dealings with the Department continued to exist, under s. 104 of the Migration Act, until the visa grant. The Applicant also failed to disclose correct information in his application for citizenship made in 2011. Thus, the fraudulent conduct spanned over five years between 2005 when the applicant applied for the Prospective Marriage visa and 2011 when he made the application for the citizenship. It was not until he was faced with criminal proceedings and the revocation of his citizenship that the Applicant expressed any remorse for his actions.
Contrary to the Applicant’s submission, the Tribunal does not accept that the fraud should be attributed to the incorrect advice of the migration agent. Even assuming that the Applicant was entirely unfamiliar with the Australian laws (and the Tribunal notes that by the time the Applicant applied for the Prospective Marriage visa, he had lived in Australia for some years and many more years by the time of his citizenship application, so some knowledge of the laws may reasonably be expected), the Tribunal is of the view that the Applicant would have been well aware of the expectation to provide truthful information in his visa applications and the citizenship application. Such knowledge does not require expert understanding of the Australian immigration laws. The Applicant’s oral evidence to the Tribunal is that the agent advised him he would have a better chance of obtaining the visa if his previous visit was not known. That is, the Applicant’s decision to change his identity and not to disclose it in his visa applications was not based on the Applicant’s lack of knowledge but, rather, his desire to obtain a favourable migration outcome. The Tribunal is of the view that the applicant would have been well aware that his actions were wrong. He may have relied on the advice of the agent about the benefits of not disclosing his previous visit or his identity, but the Tribunal is of the view that the Applicant made a conscious and informed decision to do so in order to ensure his return to Australia and subsequently the grant of the Australian citizenship. The Tribunal has formed the view that the Applicant had acted with deliberate intention to mislead and that reflects poorly on his character.
It is also of significance, in the Tribunal’s view, that when asked if he would have disclosed the use of an incorrect name if he did not come to the attention of the authorities, the Applicant stated in oral evidence to the Tribunal that he would have disclosed the information “if asked”. The Applicant appears to believe that it was not his responsibility to have been forthright with that evidence and the Applicant does not appear to believe that he has any obligation to inform of the incorrect answers. In his view, it is the authorities that are under an obligation to investigate or ‘ask’ but he has no obligation to inform. The Applicant’s evidence is that he would have only disclosed the information in response to being asked.
The Tribunal acknowledges the Applicant’s evidence about the hardship that would be caused by the revocation of his citizenship. However, the Tribunal notes that much of the Applicant’s earlier evidence is based on the premise that he would be required to leave Australia, which is not the case. Thus, the Applicant refers to his care responsibilities towards his partner and his son, the financial dependence of the family members upon him, the emotional, physical and financial support that he provides to his family, as well as the care arrangements for relatives overseas. These claims are addressed more fully below. As also noted below, the revocation of the citizenship will not deprive the Applicant of the ability to remain in Australia and to continue with his employment and care arrangements. Section 35 of the Migration Act 1958 provides that a person who ceased to be an Australian citizen after 1 September 1994 while in the migration zone is taken to have been granted an ex-citizen visa when that citizenship ceases. The Applicant has been granted a Subclass 150 (Former Citizen) visa. He is able to remain in Australia indefinitely and maintain his responsibilities towards his family as he claims to have done in the past.
While having regard to the matters put forward by the Applicant, in particular the hardship that he claims he would suffer as a result of his citizenship being revoked, the Tribunal prefers the respondent’s submission that the nature and the seriousness of the fraud are considerations that should be given greater weight. The Tribunal notes the sentencing remarks of Magistrate Atkinson who stated, in relation to the applicant’s offending:
…these are serious matters. We are lucky to live in Australia where we have freedoms and clearly you want to be part of our community but the laws that you broke to get into Australia are part of the safeguards that we have in place. When we are sentencing an important part of our sentencing process, particularly with these types of matters, is letting you and everyone out there know that the Courts will treat these types of offences very seriously… This is all wrong and you have got to understand, everyone has to understand that it is serious and people can expect to be treated in a serious manner with passport matters…
The Applicant’s claim is that he has already been punished sufficiently and there is no prospect of reoffending. He submits that the issue of deterrence has already been addressed through the criminal process and should not be the ground of an unfavourable public interest finding. However, the Tribunal considers such claims to be misguided. The provisions relating to the revocation of citizenship are not concerned with punishment or the risk of reoffending. In the Tribunal’s view, the fact that the Applicant was found guilty, and had completed his sentence, does not deny the possibility that public interest may exist in revoking his citizenship for the same conduct that gave rise to the convictions.
In this case, the Tribunal has formed the view that the preservation of the integrity of Australia’s immigration process and the deterrent factor are to be given greater weight. Having regard to all the circumstances, the Tribunal is satisfied that it would be contrary to the public interest for the Applicant to remain an Australian citizen.
HOW SHOULD THE DISCRETION BE EXERCISED?
The Applicant put forward several considerations in his written evidence to the Department and additional evidence is before the Tribunal.
The Applicant states that the revocation of his citizenship endangers his capacity to remain lawfully in Australia as the ex-citizen visa would not allow him to depart and re-enter Australia. The applicant outlined various causes that require his travel overseas and which would not be possible if his citizenship is revoked. In his evidence to the Tribunal the Applicant refers to accompanying his partner for treatment overseas but he did not provide details of any such treatment being arranged or planned. Ms Russell told the Tribunal that they had explored the opportunities for treatment overseas but because the Applicant cannot travel, it would be difficult for her travel on her own, so they had not explored this further. The Applicant refers to other matters, such as accompanying his son for overseas travel, visiting his sister and mother in law in Ukraine. The Tribunal accepts that there are reasons why the Applicant may wish to travel overseas.
The Tribunal is prepared to accept that a certain degree of hardship may be caused to the Applicant and his family if the Applicant is unable to travel and re-enter Australia as a holder of an ex-citizen visa. However, the existence of such hardship is not a determinative factor. The Tribunal is mindful of the remarks in Eidson cited above.
In Taradel the Tribunal recognised explicitly the need “to look at any prejudice to the applicant and others arising from the cancellation of his citizenship”[13] when the matter was under review. It concluded, in that instance that:
Assuming the applicant is not removed from Australia, it is difficult to identify real detriment should his citizenship be revoked. His life would not change a great deal, and he would presumably be entitled to apply for citizenship again in due course. It is true he may not be able to travel overseas and he will experience stress as the department considers whether or not he should be removed on character grounds.[14]
[13] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [23].
[14] Ibid at [28].
A similar balance of considerations was discussed in Prasad.[15]
[15] Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 at [39-40].
The Applicant submits that endangering his ability to remain lawfully in Australia will cause devastating family and emotional trauma for the family and would result in “a very devastating and drastic outcome”. The applicant presented medical evidence relating to his partner and son. The Tribunal accepts that evidence, and is prepared to accept that the Applicant provides care and support to his family, however, the Tribunal does not accept the premise that the revocation of his citizenship would endanger the Applicant’s ability to remain lawfully in Australia. The Tribunal finds that the revocation of the citizenship will not have a detrimental effect on the Applicant’s capacity to remain in Australia continue with the existing care arrangements.
The Applicant also claims that he is supporting his sister overseas and for the same reason, the Tribunal finds that at least the financial assistance need not be disturbed as a result of the revocation of the citizenship. The Tribunal is mindful that the Applicant has not travelled overseas since 2013. There is no probative evidence before the Tribunal to indicate that the welfare of the Applicant’s sister or of his mother in law had been adversely affected. Essentially, if the Applicant was able to provide care and support to his family, including his family overseas, while remaining in Australia, the Tribunal is of the view that despite the revocation of the citizenship, the Applicant will be able to provide the same care and support as a holder of a permanent visa.
The Tribunal has the same concerns with the other arguments put forward by the Applicant. The Applicant claims that the revocation of his citizenship would threaten his capacity to financially provide for his family as he is the sole breadwinner for the family, as well as the primary caregiver and there are no other close family members in Australia. As noted above, the revocation of the citizenship will not preclude the Applicant from being able to remain in Australia indefinitely and work and continue to support his family. The Applicant claims that the revocation of the citizenship and the uncertainty of his status have had an adverse effect on his mental state, which has affected his daily functioning and the ability to work but the Applicant presented no documentary evidence to support these claims. For example, there are no financial records to show that the business has not been as successful as before due to the Applicant’s mental state, that the Applicant’s income has decreased or his capacity to provide financial support to his family has diminished. The Tribunal does not accept the Applicant’s evidence that his claimed poor mental state has affected his business and financial affairs. As such, the Tribunal does not accept that the family would suffer financial hardship, or be denied the support of the Applicant, as a result of the revocation of his citizenship.
The Applicant also states that as a small business owner, he is ‘doing good’ for the Australian community and the economy. The Applicant told the Tribunal that if he cannot work, he cannot pay taxes or employ other people and contribute to the community. As noted above, the revocation of the citizenship does not affect the Applicant’s ability to remain in Australia permanently and to continue his business and the Tribunal is not satisfied that the Applicant’s business has been adversely affected as a result of his citizenship being revoked.
The Applicant presented character and other references and the Tribunal acknowledges that evidence. In the Tribunal’s view, there would be nothing preventing the Applicant from continuing with his business irrespective of his citizenship status. In particular, the Tribunal finds that the revocation of the citizenship will not endanger the Applicant’s capacity to work in Australia and will not threaten the security of his business. It will not affect the Applicant’s capacity to live and work in Australia.
The Applicant refers to the best interests of his children, noting the care he provides to his son and step-son and his son’s medical condition and special needs. For the reasons stated above, the Tribunal finds that the revocation of the visa will not in any way affect the Applicant’s capacity to remain in Australia and to continue to provide the care and support to the children. There will be very little, if any, practical difference in these arrangements, whether the Applicant remains in Australia as an Australian citizen or a holder of a visa allowing him to remain here permanently. The Tribunal finds that the best interests of the children will not be affected by the revocation of the citizenship.
The Applicant refers to the objectives of sentences and the principles of just and proportionate punishment. He submits that the purpose of the sentence has already been met and he has completed his community service as quickly as he could and has been adequately punished. The applicant submits that in accordance with s. 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the objectives of deterrence and punishment have already been taken into consideration when sentencing him. The Applicant notes that the maximum penalty for the two offences was significant and the fact that he was given community service shows that his offending was not at the higher scale. However, the Tribunal accepts the Respondent’s argument that the purpose of the revocation provisions is not punishment but an administrative procedure. The Tribunal is also mindful that the revocation power arises under s. 34 where a person has been convicted of prescribed offences. It is very likely, if not inevitable, that those who have been convicted of offences would have been given some penalty consequent to a finding of guilt. To state that any such punishment is adequate and sufficient so that the revocation of citizenship would be disproportionate to the offence would negate the very purpose of s. 34.
The Applicant refers to his good character and he provided a number of references with his submission. The Tribunal acknowledges these references and accepts that those who provided references believe the Applicant to be of good character. However, the Tribunal is also mindful of the long-standing and significant fraud the Applicant perpetrated since his re-entry into Australia in 2005. Despite his expression of remorse and the guilty plea, it is not apparent that the Applicant himself took steps to rectify the situation by contacting the Immigration authorities to inform them of the fraud. As noted above, his view is that he would have only disclosed the correct information if asked. The Applicant states that he had repaid the debt to the Commonwealth but he admits that he had only done that after the criminal proceedingshad commenced around 2016, more than ten years after the debt arose. The Applicant appears to have been content to rely on these falsities in order to obtain the visa and the citizenship. In the Tribunal’s view, such conduct is not indicative of a person being of good character or of enduring moral qualities. The Tribunal acknowledges the Applicant’s evidence that there are no other known instances of breaches of the law and that the last breach occurred some eight years ago, in 2011 when the citizenship application was made. However, the Tribunal is of the view that the Applicant’s conduct, and his character, cannot be viewed in isolation of these offences.
The Tribunal has had regard to the psychological report prepared by Kris North, dated 31 October 2018. It is of some concern to the Tribunal that the report was prepared at the request of the Applicant’s representative and that the Applicant saw the psychologist for the first (and it appears the only) time in late October 2018 for the purpose of obtaining the report to support this citizenship matter. In the Tribunal’s view, if the Applicant genuinely had any need of support services, his decision to seek professional help would not be linked to his citizenship application. In any case, it is not apparent that the Applicant did seek professional help, other than the provision of the written report, as there is no evidence of any ongoing treatment. In oral evidence the Applicant referred to having three sessions with the psychologist but said that on occasions, he accompanied his son. He said that he has not seen a health professional for his own needs and confirmed that he has seen Ms North once only and has not seen her since the report was written.

The Tribunal notes that much of the evidence on which the psychologist relies relates to self-reporting by the Applicant and the various tests to which the report refers are also self-reporting. Given the circumstances in which the report was obtained and the concerns noted above, the Tribunal considers that such reporting may be self-serving and unreliable. In particular, the Tribunal considers it problematic that the Applicant has outlined the hardship that his family would suffer if he cannot retain his citizenship or cannot travel. That information is based entirely on the Applicant’s own evidence with no independent assessment by the health professional.
The Tribunal acknowledges Ms North’s opinion that the Applicant satisfies the criteria for an adjustment disorder and that in her opinion, if the citizenship remains revoked, the applicant’s condition would worsen and it may affect members of his family. The Tribunal has formed the view that in circumstances where the opinion was obtained as a result of a single meeting and where Ms North is not the Applicant’s treating psychologist, where much of the evidence has been reported by the Applicant himself and the applicant sought help for what appears to be the sole purpose of obtaining the psychological report, such report is of limited value. The Tribunal gives it limited weight.
The Applicant states that he may wish to travel overseas to seek medical help for his partner or to spend time with his child. The Applicant presented no documentary evidence concerning any arrangements for treatment overseas that relate to his partner. As noted above, Ms Russell’s evidence to the Tribunal is that she explored treatment options but has not made any arrangements to travel or to pursue these options. There is no evidence that the Applicant’s partner genuinely intends to travel overseas for treatment and that it is the intention of the Applicant to accompany her for such treatment. There is no evidence that any arrangements have been made for treatment overseas. Neither is there any evidence that the Applicant intends to travel overseas with his son, although the Tribunal accepts that he may wish to do so at some point in the future. The Applicant refers to providing support to his sister and family overseas. He told the Tribunal that he rents a property in Ukraine and the rent supports his sister for any needs that are not met by the state. The Applicant provided to the Tribunal a statement from a health facility where the sister presently lives. The Tribunal is mindful that the report refers to the sister receiving ‘full state provision’, which seems to indicate that she is fully supported by the state. Ms Russell also told the Tribunal that the Applicant supports her mother as she cannot travel. The Applicant also presented a medical certificate relating to his mother in law and the Tribunal accepts that evidence.
The Tribunal notes, however, that according to the Applicant’s movement records, the Applicant has made very limited trips overseas since his entry to Australia in 2006. He made one trip in 2009, one in 2010 and one in 2013. The Applicant has not left Australia since 2013, for a period of nearly six years. He told the Tribunal that he did not want to travel because of the risk with his citizenship. The Applicant told the Tribunal that if he could travel, he would support his sister emotionally and also make the financial arrangements and that he was able to provide the financial support while he has not visited Ukraine but his support was not as great as he would have liked. Again, the Applicant presented no documentary evidence to establish that any financial support that has been provided to the Applicant’s sister and mother in law has been diminished, or in any way affected, by the revocation of the Applicant’s citizenship. As for emotional support, the Tribunal is not convinced that it can only be provided by the Applicant being physically present in the same country.
It appears that the Applicant has been able to fulfil his obligations, at least to a significant extent if not fully, towards his family by remaining in Australia for lengthy periods and such obligations did not require his travel overseas. In such circumstances, the Tribunal is not satisfied that any limitation on overseas travel, which may arise as a result of the citizenship revocation, would cause undue hardship to the Applicant or his family.
The Applicant submits that his visa may be subject to cancellation on character grounds. The Tribunal accepts that this is so but considers such a claim to be purely speculative[16] and the Tribunal gives this little weight.
[16] See Eidson at [68] and Osorio and Minister for Immigration and Citizenship [2007] AATA 59 at [45].
The Tribunal accepts that some hardship would be caused if the Applicant is not an Australian citizen. In particular, the Tribunal acknowledges the Applicant’s evidence that there are reasons why he may wish to travel overseas and he would be unable to do so as a holder of an ex-citizen visa (unless he is granted another visa or an Australian citizenship in the future). The Tribunal acknowledges the Applicant’s and his partner’s evidence about the effect of the revocation on the Applicant’s mental state and while the Tribunal has formed the view that Ms North’s report is of limited probative value, the Tribunal accepts that the Applicant may have been adversely affected by the revocation and the uncertainty of his present circumstances and his future in Australia. The Tribunal is prepared to accept that this may have had an effect on the Applicant’s daily activities, including his interaction with others and his employment. The Tribunal accepts that such matters may affect not only the Applicant but also his immediate family. In particular, the Tribunal accepts that unless the Applicant is granted another visa or Australian citizenship, the Applicant may be unable to travel overseas and provide at least some form of support, including physical support, to his family and Ms Russell’s mother. Despite the paucity and the inadequacy of documentary evidence on this issue, the Tribunal is prepared to accept that the revocation of the citizenship may further adversely affect the Applicant’s mental health and that might also impact on his immediate family.
The Tribunal is also mindful, however, that many of the difficulties to which the Applicant and his partner refer would be ameliorated by the fact that the Applicant is able to remain in Australia indefinitely on his present visa. It is also relevant, in the Tribunal’s view that the Applicant is entitled to seek another visa in Australia, such as a Partner visa, and even though there may be a delay during the processing of such an application, if granted, the Applicant will be able to travel outside Australia. The Applicant is also eligible to make an application for the Australian citizenship in the future. Notably, considerations that are relevant to the revocation of the citizenship are different to those that would be relevant if such applications were to be made in the future. Should the Applicant be granted another visa or Australian citizenship in the future, there would be no restrictions on his travel. The Tribunal notes that many of the Applicant’s arguments are based on the hardship that would be caused if he can never travel overseas but in his circumstances, it appears more likely that any restriction on overseas travel would be temporary, even if lengthy.
The Tribunal has considered the totality of the Applicant’s circumstances. The Tribunal accepts that hardship may be caused to the Applicant and his family if the citizenship is revoked. However, given the serious nature of the offences, the lengthy period over which the offending occurred, the interest in protecting the integrity of the immigration system and in protecting the Australian community from fraud and deception, the Tribunal has formed the view that the discretion should be exercised to revoke the citizenship held by the Applicant.
CONCLUSION
The Tribunal affirms the decision to revoke the cancellation of the Applicant’s citizenship.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif

.............................[sgd]...........................................
Associate
Dated: 16 July 2019

Date(s) of hearing: 4 July 2019

Solicitors for the Applicant: Mr R Turner, Turner Coulson Immigration Lawyers

Solicitors for the Respondent: Mr H McLaurin, MinterEllison

TRIBUNAL:	Senior Member K Raif
DATE OF CORRIGENDUM:	19 July 2019
PLACE:	Sydney

Date(s) of hearing:	4 July 2019
Solicitors for the Applicant:	Mr R Turner, Turner Coulson Immigration Lawyers
Solicitors for the Respondent:	Mr H McLaurin, MinterEllison