Wang and Minister for Home Affairs (Citizenship) - [2019] AATA 665

Wang and Minister for Home Affairs (Citizenship) [2019] AATA 665 (5 April 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1687
Re:Dongsheng Wang
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:5 April 2019
Place:Sydney

The Applicant meets the “good character” test as set out in section 21(4)(f) of the Act. The decision under review is set aside.
.............................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP - application for Australian citizenship – citizenship by conferral – character requirement – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975
Australian Citizenship Act 2007
Freedom of Information Act 1982
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 68 FCR 422
Lim v Minister for Home Affairs (Migration) [2018] AATA 2111
Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326
Shin v Minister for Home Affairs (Migration) [2018] AATA 2108
Zhang v Minister for Immigration and Border Protection [2015] AATA 176
Zhao & Anor v Minister for Immigration & Anor [2018] FCCA 998
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Bethany Allen-Ebrahimian: “Interpol is helping enforce Chain’s Political Purges”, Foreign Affairs 21 April 2017
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
Helen Davidson: “Hakeem Al-Araibi: Interpol red notice against refugee contravened its own regulations” The Guardian
Interpol, Red Notices (29 March 2019) Rudd: Understanding China’s Rise Under Xi Jinping, Address to Cadets, United States Military Academy, West Point, Monday 5 March 2018
Meng Hongwei: China to prosecute former Interpol chief”, BBC News 27 March 2019
Michael Smith: “Four of China’s most wanted’ fugitives fled to Australia”, Australian Financial Review, 7 June 2018
Zach Dorfman: “China steps up hunt for fugitives”, Sydney Morning Herald 31 March 2018
REASONS FOR DECISION
Chris Puplick AM, Senior Member
5 April 2019

Mr Dongshen Wang (the Applicant) brings an appeal to this Tribunal against a decision by a delegate of the Minister for Home Affairs (the Respondent) to refuse his application for citizenship by conferral on the basis that the Applicant does not meet the “good character” requirement under the provisions of the Australian Citizenship Act 2007 (the Act).
The Applicant lodged his application for citizenship on 31 January 2017 and the final refusal decision was made by the delegate on 5 March 2018. On 26 March 2018 the Applicant lodged his appeal against that decision with this Tribunal. The matter was heard on 25 March 2019.
AN INITIAL ERROR BY THE DELEGATE
Applications for citizenship by conferral are assessed under criteria set out in section 21 of the Act.
Section 21(2) is headed “General Eligibility” and contains a check-list of 8 items (listed as (a) to (h)) each of which must be satisfied if the application is to be successful. The last of these, s 21(2)(h) requires that an applicant “is of good character at the time of the Minister’s decision on the application.”
Section 21(4) is headed “Person aged 60 or over or has hearing, speech or sight impairment”. It contains a check-list of 6 items (listed (a) to (f)) which must be satisfied for an application to succeed. Items (a) to (e) in 21(4) are different from those listed in 21(2), although 21(4)(f) is in identical terms to 21(2)(h), namely that an applicant “is of good character at the time of the Minister’s decision on the application.”
The Applicant was born in November 1956 in the People’s Republic of China (the PRC).[1] His application was lodged on 31 January 2017 and determined by the delegate on 5 March 2018. Both at the time of the application and the time of the determination the Applicant was 60 years of age.
[1] Section 37 Tribunal Documents at [61], [64]. His birthplace is given in the Statement of Dongsheng Wang (dated 20 November 2018).
As a result, his application should have been determined using the criteria set out in ss 21(4). However, the delegate made his determination on the basis of the criteria in ss 21(2).[2] In the Respondent’s Statement of Facts, Issues and Contentions reference is made to the “good character” test as set out in s 21(4)(f)[3] as being the basis for the delegate’s decision.
[2] Section 37 Tribunal Documents at [6]-[12].
[3] Respondent’s Statement of Facts, Issues and Contentions at [1].
However, it was not. The delegate erred in considering the s 21(2) criteria rather than the s 21(4) criteria.
Regardless of this error there has still been a decision made by the Respondent, a decision to refuse a citizenship application. The fact that it may have been made with regard to the wrong section of the Act does not, in and of itself, invalidate it as a decision.
Nevertheless, since the decision in both sets of circumstances relies upon the issue of the Applicant meeting or not meeting the test of good character, and the wording in each section of the Act is identical, the Tribunal saw no difficulty in proceeding to consider the application for review on its merits.
The delegate, in making their determination did not find any basis to refuse the application on the basis of the other criteria in s 21(2). In other words, the delegate was satisfied that the requirements of sections 21(2)(a) to (g) were satisfied.
In order to ensure that the grounds for refusal were confined to the “good character” issue only, the Tribunal sought and received assurances from the Respondent that it accepted that each of the remaining five criteria in s 21(4) (namely subsections (a) to (e)) were met by the Applicant and that the Respondent did not intend to challenge the original application on any one of them.
TIMETABLE OF VISITS AND VISAS
The Applicant in his statement to the Tribunal over the signature of his Counsel states:
“The applicant first visited Australia as a tourist in 2012 and later remained in Australia as the holder of Contributory Parent (Subclass 143) visa in 2013.”[4]
[4] Applicant’s Statement of Facts and Contentions at [3].
This does not accord with the official record of the delegate which states:
“You (the Applicant) first arrived in Australia on 24/2/2011 as holder of a 676 visa. You are currently the holder of a subclass CA 143 (permanent) visa granted on 27/8/2012”.[5]
[5] Section 37 Tribunal Documents at [6].
The Tribunal will proceed on the basis that the dates given in the delegate’s statement of reasons are to be preferred over those offered by the Applicant’s Counsel.
CONSIDERATION OF THE ORIGINAL APPLICATION
As noted above the Applicant lodged his application on 31 January 2017. As part of the process of consideration of the application the Respondent was asked, on 19 September 2017, to provide a penal clearance certificate from the PRC.[6]
[6] Ibid at [73].
The Respondent was advised the following day (20 September 2017) by the Applicant’s son (Wei Wang) that his father was unable to obtain such a certificate.[7] In his correspondence with the Department, Wei Wang outlined that he and his father had visited the Chinese “embassy”[8] in Sydney and lodged documentation seeking to obtain such a certificate, via a grant of power of attorney and he provided a copy of a receipt for such an application. He further advised that he was later informed by the “embassy” that he should not return to collect any documentation, apparently as a result of “instructions from our superior” to local officials. He indicated that his father and he had “tried everything we can to get this certificate from China”[9] but without success.
[7] Ibid at [74].
[8] The facility is in fact the PRC Consulate and not the Embassy.
[9] Section 37 Tribunal Documents at [74].
The documentation to this effect was not challenged by the Respondent during the course of the hearings and the Tribunal is inclined to accept this statement as being true.
The delegate in their assessment of the application wrote:
“Further, in assessing whether you are a person of good character, I have taken into consideration the information that you have not provided Penal Clearance from China as per departmental requirement. In response, you have submitted a statement on explaining why Penal Record from China is unavailable. You state that in order for you to provide an updated No-Penal record to the Department, you have entrusted a relative in December 2016 to seek advice from local police department in China whether he can get the document from them on your behalf. The response was negative. You confirm that the process requires you to apply for the same in person. Since you have breached the community (sic)[10] party rules and penal records were put on file by the Discipline Inspection Commission, you find the process to apply in person too risky to undertake as this will result to (sic) confiscation of your passport in China. I give this information some weight in my assessment of whether you are of good character.”[11]
[10] Presumably the delegate means the Communist Party.
[11] Section 37 Tribunal Documents at [9].
Similarly the Respondent’s Statement of Facts, Issues and Contentions records that:
“The delegate also took into consideration that the applicant had not provided a Penal Clearance from China in accordance with the Department’s requirement, and the reasons given by the applicant as to why such information had not been provided. The delegate gave this information ‘some weight’.”[12]
[12] Respondent’s Statement of Facts, Issues and Contentions at [16].
Although it is not clear on the face of it, the Tribunal reads these statements as indicating that the delegate (and the Respondent) weigh the failure to produce such a certificate against the Applicant and reject, or at the very least discount, his reasons for failing to comply with this departmental requirement. This is a matter which the Tribunal will address at a later stage.
MR WANG’S PERSONAL HISTORY[13]
[13] This narrative is taken from the Applicant’s letter to the Department of Immigration and Border Protection (dated 22 December 2017) at Section 37 Tribunal Documents at [42-44]; the Applicant’s Statement regarding the non-production of his Penal Certificate (dated 7 February 2017) at Section 37 Tribunal Documents at [45-53] and the Applicant’s Statement to the Tribunal dated 20 November 2018.
It is important to set out the key dates/elements of the Applicant’s personal history in order to better understand the issues arising in relation to determination of matters of good character. The details below were supplied in various forms by the Applicant and remained unchallenged as to their factual basis by the Respondent at any stage.
As noted, the Applicant was born in 1956 and in his statement to the Tribunal says that in 1958 his father was sent to a forced labour camp for his criticisms of the Communist Party of China (CPC). Apparently after release from the camp his father did not return to the family and the Applicant was raised by his mother.
From 1972 to 1980 he worked as a truck mechanic, gradually earning promotion within his organisation and in 1980 was permitted to join the CPC although he never held any senior or leadership positions within the Party. Membership of the CPC appears to have been a requirement for a person in his position at the Yantai Highway Management Bureau.
From January 1980 to September 2012 he worked at the Yantai Highway Management Bureau rising to become Bureau Chief.
In 2000 his son (Wei Wang) came to Australia to study and remained here until 2009. The approval of the CPC would have been needed for the original travel to take place.
In 2007 Mr Wei Wang’s first child (a son) was born in Australia and in or around 2009 he and his wife returned to China where their second child, a daughter, was born. Within about three months thereafter Wei Wang and his wife returned to Australia leaving their daughter in the care of her grandparents.
At some time in 2011 the Applicant visited Australia on a tourist visa although the dates of this visit are not known to the Tribunal. In approximately October/November 2013 the Applicant returned to Australia, on this occasion bringing his granddaughter back to live with her parents. The Applicant then returned to China in February 2014.
The Applicant was obliged, under the rules of the CPC to obtain permission from the Party to travel outside Australia and it appears that his trips in 2011 and 2013 were officially sanctioned.
The Applicant then claims that in April 2014 he received a call from his son to the effect that his granddaughter (for whom he and his wife had cared for the previous four years) was unwell and that this appeared to be related to her adjusting to living without her grandparents. As a result of this call the Applicant applied to the Party for permission to travel back to Australia but this permission was refused. Ostensibly there is some Communist Party rule which precludes cadres (party members) from making repeated overseas trips within a two-year period.
Nevertheless, in May 2014 the Applicant and his wife left China and returned to Australia where they have resided ever since.
The Applicant attests that in July and September 2014 he notified the Chinese authorities that he wished to resign from his position at the Yantai Highway Bureau and the Communist Party but that his resignation(s) had not been accepted by the relevant authorities.[14]
[14] Section 37 Tribunal Documents at [52-53] and [50-51].
There is some lack of clarity about whether there are one or two separate resignations involved. In a letter to the “Party Committee of the Highway Bureau” the Applicant seeks to resign from “the government position”[15] while in his Statement to the Tribunal he refers to his resignation “to quit Communist Party.”[16]
[15] Ibid at [53].
[16] Applicant’s Statement to the Tribunal dated 20 November 2018 at page [3].
It should be noted that Mr Wei Wang and his wife and now three children are Australian citizens and the Applicant advised the Tribunal that his wife had been granted citizenship in the week prior to his hearing.
ALLEGATIONS AND PROCEEDINGS AGAINST THE APPLICANT
There appear to be two sets of proceedings against the Applicant which are running in parallel.
Communist Party of China (CPC) proceedings
It has been established that when the Applicant (and his wife) departed China in May 2014 they did so without the official approval of the CPC which requires all cadres to obtain such authorisation for travel.
This has resulted in the Applicant’s local Party authorities being subject to “severe criticism”[17] from their Party superiors. As a result of this the local Party committee requested that the Applicant return to China to attend a meeting (scheduled for 8 October 2014) to answer for his breach of Party discipline and return his passport.
[17] Section 37 Tribunal Documents at [50].
In relation to the passport, the Party committee writes:
“Also, since your passport, issued for private use, has not been given up and returned to the municipal party organization for central keeping, the matter has become a key issue and special concern at the provincial level for disciplined and correction. Since you have not returned your passport, other people from our bureau are unable to submit their applications to go overseas.”[18]
[18] Ibid at [51].
It further warns:
“The meeting, between the Head of Party Organization and individual party cadre, is part of an important policy aimed to execute strict management measures on party cadres. Should there be a failure to attend, the person who should be present will be solemnly and seriously held responsible.”[19]
[19] Ibid at [51-52].
Obviously, the Applicant did not return to China and this has resulted in his receiving repeated written demands from the local Party authorities for him to do so. At the hearing the Applicant tendered, without objection from the Respondent, a copy of one such email (dated 27 October 2014) demanding his return and warning that failure to do so “will be reported as a major offence to the national auditing organisation.”[20]
[20] Tribunal Exhibit [A1]. The email is from the same source as that Section 37 Tribunal Documents at [50], being the Municipal Party Committee.
The Applicant was then notified, that on 10 February 2015 the Discipline Inspection Commission of the Communist Party of China had resolved that “a case will be set up on WANG Dongsheng to look into the matter of whether he has severely violated party disciplines.”[21]
[21] Section 37 Tribunal Documents at [54].
The Applicant states further that:
“In August 2017 my daughter-in-law, Yating Chen visited China. On her return she was detained at Shanghai airport with three of her children at age 5,7, 9 years old. Yaiting was told to go to the Discipline Committee to talk to the authorities to help to convince me to return China (sic).”[22]
[22] Ibid at [44].
As a consequence of all this activity on the part of the CPC the Applicant has expressed a fear that there would be adverse consequences for him should be return to China. He fears loss of his passport and other disciplinary steps being taken against him. Both in written submissions and in oral evidence to the Tribunal the Applicant expressed both his concerns on this level and his lack of confidence in the legal and political processes under the control of the CPC.[23]
[23] Ibid at [44]; [46] and statement from Mr Garry Doherty, the Applicant’s solicitor at [58].
Chinese People’s Procuratorate proceedings
In July 2015, that is, just over a year since the Applicant left China for Australia, the Procuratorate commenced formal investigations against him “for allegedly receiving bribes”. That Procuratorate made an application for an arrest warrant for the Applicant to be issued and this agreed to on 7 August 2015 and issued on 12 August 2015. In February 2016 the Applicant’s passport was invalidated.
Details of these proceedings were transmitted by the International Co-operation Department, Ministry of Public Security of the government of the PRC to the Australian government via the Australian Federal Police (AFP) office in the Australian Embassy in Beijing in February 2017.[24]
[24] Annexure C to the statement of Mr Garry Doherty (dated 21 November 2018) and Respondent’s Statement of Facts, Issues and Contentions at [8].
The notification to the AFP:
1.Alleged that the Applicant, between 2002 and 2009 took advantage of his position at the Public Roads Bureau “to accept money and things totalling RMB 300,000[25] from other people (via his family members) and then gave favours to the latter”;
2.Alleged that the Applicant’s wife “escaped to Australia” with him;[26]
3.Sought details of the status of the Applicant, his wife, his mother-in-law, his son and his daughter-in-law in terms of their visa status “and their possible immigration fraud activities”; and
4.Requested details of the five named persons “residential addresses, contact numbers and assets (moveable and immoveable property) in Australia.”
[25] Approximately $62,000 - $63,000 Australian dollars.
[26] It is hard to see how the Applicant’s wife can be described as “escaping” when, at the time of her departure, no arrest warrant or other charges were in place against her husband.
It appears that all this information was forthcoming to the Applicant as a result of his making a Freedom of Information request under the Freedom of Information Act 1982 to the Department of Home Affairs, in which he had sought access to information in his various immigration and citizenship application files and involving correspondence from Beijing post an officer in the Department of (then) Immigration and Border Protection with responsibilities in the citizenship area.

The Department decided that most of the material requested by the Applicant was either partially or wholly exempt under sections 33(b) (exempt because it divulges matter communicated in confidence from a foreign government); 47E(d) (exempt because it has a substantial adverse effect on the proper and efficient conduct of an agency) or 22(1)(a)(ii) (exempt as being irrelevant matter). In their response to the Applicant (via his Solicitor) the Department referred to a ten page document attached to an email sent to the Departmental officer by the Beijing post and provided copies of ten entirely blacked out pages.[27]
[27] Annexure B to the statement of Mr Garry Doherty (dated 21 November 2018).
Interpol Red Notice
In April 2016, at the request of the PRC government, Interpol issued a Red Notice in relation to the Applicant.
On 26 July 2018, Deputy President Constance of this Tribunal issued a direction under section 35(4) of the Administrative Appeals Tribunal Act 1975 restricting access to this Notice to certain parties. At the hearing on 25 March 2019 the Tribunal sought and received the agreement of both parties to allow appropriate references to be made to this Red Notice in the Tribunal’s written determination.
Suffice to say that the Red Notice summarises the facts as follows:
“From 2002 to 2009, while working as the director of Yantai Highway Bureau, criminal suspect Wang Dongsheng took advantage of his position to take bribes of more than 3000,000 CNY through his family members and secured benefits for others illegally.”
It is important to define exactly what an Interpol Red Notice is and what it is not. Interpol itself explains the purposes of Red Notices in the following terms:
“Red Notice is a request to locate and provisionally arrest an individual pending extradition. It is issued by the General Secretariat at the request of a member country or an international tribunal based on a valid national arrest warrant. It is not an international arrest warrant. Interpol cannot compel any member country to arrest an individual who is the subject of a Red notice. Each member country decides for itself what legal value to give a Red Notice within their borders. ….. Red Notices are issued for individuals sought for prosecution or to serve a sentence. When the individual is sought for prosecution it means they are suspected of committing a crime but have not yet been prosecuted and so should be considered innocent until proven guilty.”[28]
[28] Interpol, Red Notices (29 March 2019) <
THE MINISTER’S CASE
The Minister holds that the Applicant is not a person of good character for the following reasons:
“In the circumstances of this case, having regard to the Chinese government’s decision to commence a formal investigation, the decision to arrest, the arrest warrant, the information provided by facsimile dated 20 February 2017 and that the applicant is the subject of a current international arrest warrant (the IRN), the Tribunal should not be satisfied that the applicant is of good character.”[29]
[29] Respondent’s Statement of Facts, Issues and Contentions at [29].
The Minister’s original submission in the Statement of Facts, Issues and Contentions was incorrect and potentially misleading to the Tribunal. The IRN (International Red Notice) is plainly not an “international arrest warrant.” This concession was made by the Respondent at the opening of the Tribunal’s proceedings.
In closing submissions to the Tribunal the Minister’s representative advanced the following eight specific points for consideration:
1.The Applicant failed to surrender his passport to the local Communist Party committee as required by CPC rules;
2.The Applicant departed from China in May 2014 without the required permission of the Communist Party authorities;
3.The Applicant was subject to investigation for failing to obey Communist Party rules;
4.The Applicant was under investigation for bribery;
5.Contrary to the Applicant’s submissions there was no evidence to connect the investigation for bribery with the investigation for breach of Party rules;
6.The Applicant was subject to the application for an arrest warrant in China;
7.That arrest warrant had been issued against the Applicant; and
8.The Department had been made aware of the existence of the issuing of an Interpol Red Notice by the facsimile to the AFP Beijing’s post on 20 February 2017.
In addition, the Tribunal’s attention was drawn to Chapter 11 of the Citizenship Policy which refers both to Interpol Red Notices and matters related to international arrest warrants.
Finally, considerable weight was placed by the Minister on the failure of the Applicant to secure a Penal Clearance document which again is referred to in Chapter 11 of the Citizenship Policy.
In cross-examination the Respondent also raised matters of the Applicant’s financial position in Australia; his work as a volunteer in the community and the nature of his references. Each will be considered below.
THE APPLICANT’S CASE
The essential point made by the Applicant was that the charges of bribery laid against the applicant were fabrications arising, not from any criminal activity on his part, but rather as a means of securing his return to China (via the Red Notice system) where his principal offence had been breaches of Communist Party discipline in that he had left the country without the Party’s permission, causing Party officials to lose face and perhaps themselves face disciplinary action.
The Applicant asserted that his concerns for the welfare of his granddaughter had overridden any loyalty to or conformity with Communist Party regulations; that he had been an exemplary and law-abiding person since arrival in Australia and that his references attested to various aspects of his good character. Furthermore he had undertaken English language classes and was committed to becoming a productive Australian citizen, as are all other members of his family.
ANALYSIS OF ALLEGATIONS AND PROCEEDINGS
The Communist Party matters
The Minister, in effect, asks the Tribunal to draw negative and unfavourable inferences about the Applicant’s “good character” on the basis that he breached the rules of the Communist Party of China.
The justification given by the Applicant, namely that he knowingly broke Communist Party rules in order to fulfil family obligations is one which the Tribunal has no difficulty in accepting. The Applicant and his wife had been the principal carers for their granddaughter for most of her life prior to her return to Australia and her distress at the separation is not implausible. The ties of family in China, despite Communist attempts to assert the primacy of Party over family, still remain strong, at least in this case. The Applicant’s experiences of the Party, which he says he joined only out of employment necessity, together with his father’s experiences, plus his obvious commitment to his Christian faith, are all matters to take into account.
The bribery allegations
The Applicant seeks to link the emergence of the bribery investigation and allegations with the on-going disciplinary actions being taken by the Party against the Applicant. The Respondent posits that there is no evidence to link the two.
In cross-examination the Applicant agreed that he was aware that other people in the Highway Department, including those who were his subordinates and for whom he had some form of managerial authority, had been convicted of taking bribes and being involved in illegal land and material supply transactions. His statement to the Department indicates that this was in 2011 and he makes the point that no steps were taken against him at that time[30] and the first this appears to have come to attention in his own case was in 2015. The offences were allegedly committed between 2002 and 2009 and while others were prosecuted and jailed in 2011 his matter only appears to have been enlivened after he had left China, contrary to Party rules.
[30] Section 37 Tribunal Documents at [42].
He denied however that he was aware that there was any large scale investigation into his Bureau under way and he denied that he had at any stage been guilty of taking bribes.[31]
[31] Idem.
Of course one would expect a person in the Applicant’s position to say nothing other, but the compelling evidence, in the Tribunal’s mind is that the allegations made are that his bribery activities involved members of his family. That is stated both in the formal notification by Chinese authorities to the AFP in Beijing and in the Interpol Red Notice. However, it appears that none of the members of his family still in China, his siblings, have been arrested or charged with bribery offences. In evidence the Applicant said that his siblings neither reside in the same city nor work in the same organisation as he did.
The allegations are that he did favours for his family. This can hardly be the case as his son was not in the country at the relevant period, nor his mother or daughter-in-law (who although detained for questioning in China in 2017 was allowed to leave the country). If family members were involved in these unlawful activities it is reasonable to expect that they would have been dealt with somehow by the prosecutorial authorities by now.
It is of course notoriously difficult to discern where Party and State interests overlap in China. However in March 2018 former Prime Minister Kevin Rudd gave a major international address, ”Understanding China’s Rise under Xi Jinping” in which he stated in relation to the emergence of a new form of authoritarianism in China:
“I see this emerging political system as having three defining characteristics. First, the unapologetic assertion of the power, prestige and prerogatives of the Party apparatus over the administrative machinery of the state.”[32]
[32] Kevin Rudd: Understanding China’s Rise Under Xi Jinping, Address to Cadets, United States Military Academy, West Point, Monday 5 March 2018 at page [6].
While there can be no proof available to the Tribunal to link charges of bribery, made many years after the event and after people in the same organisation were prosecuted, with the embarrassment and loss of face suffered by local Party officials for allowing the Applicant to leave the country without permission (by their failure to have taken earlier possession of his passport), drawing a link between the two is, at the very least, not implausible and the Applicant would not have been the first person to suffer such a fate.
The Interpol Red Notice
The Applicant submitted in evidence an article from the prestigious international journal Foreign Affairs. It is titled “Interpol is helping enforce China’s political purges” and alleges that Interpol has, in effect, been suborned in a number of instances into issuing Red Notices against Chinese citizens overseas who have fallen foul of the government, resulting in their being charged with a variety of economic crimes. It specifically sites the issuance of 100 Red Notices in 2015 associated with China’s “Sky Net” anti-graft operation.[33]
[33] Bethany Allen-Ebrahimian: “Interpol is helping enforce Chain’s Political Purges”, Foreign Affairs 21 April 2017 at Applicant’s Outline of Opening Submission Annexure D.
A subsequent newspaper article submitted by the Respondent, in which he was named as one of China’s “four most wanted fugitives” living in Australia, cites a report that the CPC’s Central Commission for Discipline Inspection claims that 4,141 “fugitives”” in over 90 countries have been “captured” as part of the “Sky Net” operation.[34]
[34] Michael Smith: “Four of China’s most wanted’ fugitives fled to Australia”, Australian Financial Review, 7 June 2018 attached to Respondent’s Statement of Facts, Issues and Contentions. A further analysis of Chinese government approaches to the rendition of its nationals living in Australia was reported in Zach Dorfman: “China steps up hunt for fugitives”, Sydney Morning Herald 31 March 2018.
The Applicant also provided a copy of a letter sent by Human Rights Watch to the General Secretary of Interpol (dated 22 September 2017) in which that organisation writes:
“Authorities have not only targeted peaceful critics of the government and the Chinese Communist Party inside the country, they have also increasingly reached beyond China’s borders to intimidate or silence those they perceive as problematic, often using law enforcement as a pretext for forcing someone to go to China”.
……….
“In recent years, the Chinese government, against Interpol’s regulations, has tried to control and persecute dissidents and activists abroad by issuing politically motivated red notices through Interpol.”[35]
[35] Applicant’s Outline of Opening Submission Annexure C.
In passing, the Tribunal notes that it is ironic that the President of Interpol from November 2016 to October 2018 was Meng Hongwei (Vice Minister of Public Security of PRC 2004-2018) who “disappeared” from his Interpol post and was later arrested and charged with taking bribes by the Chinese anti-corruption authorities.[36]
[36] “Meng Hongwei: China to prosecute former Interpol chief”, BBC News 27 March 2019.
The Applicant put to the Tribunal that previous Tribunal determinations have placed little weight upon IRNs. However this is not entirely the case, it has been more a matter of their relevance.
Interpol Red Notices have been considered in previous decisions of the Tribunal in deciding similar or analogous cases. In Shin the Tribunal noted the issuance of an IRN on behalf of the Republic of Korea, especially remarking that the IRN had provided significant detail about the fraudulent conduct of the subject, however within the context of what it was required to decide in that case, the IRN itself was not a matter taken directly into account. [37]
[37] Shin v Minister for Home Affairs (Migration) [2018] AATA 2108 at [56-57]. It did likewise in the related case of Lim v Minister for Home Affairs (Migration) [2018] AATA 2111 at [54-56].
In Zhang the Tribunal took into account the weight it should give to a Red Notice issued by the PRC balanced against the lack of evidence of good character submitted by the Applicant.[38] In Zhao it noted the existence of an IRN but found it irrelevant for the purposes of its determination.[39]
[38] Zhang v Minister for Immigration and Border Protection [2015] AATA 176 at [31] and [37].
[39] Zhao & Anor v Minister for Immigration & Anor [2018] FCCA 998 at [40].
Given this lack of strong guidance about how this Tribunal should consider the value of IRNs, it appears that the best course of action is to consider the detail provided in the IRN, together with any supporting material; to examine the circumstances and the context in which the IRN was issued and take note of the value placed on the IRN by the parties immediately before the Tribunal.
IRNs can of course be challenged. People against whom an IRN is issued may contact Interpol to request that the issuance be reviewed or they may appeal for review to the judicial authorities either in the country of issue or the country of their residence.
This Tribunal notes that such challenges to the validity of an IRN were the subject of recent publicity in the case of Hakeem Al-Araibi who had been granted refugee status in Australia and, as a result, should not have been the subject of an IRN issued at the request of the country from which he had departed. Such an issuance was itself contrary to Interpol’s own regulations.[40]
[40] Helen Davidson: “Hakeem Al-Araibi: Interpol red notice against refugee contravened its own regulations” The Guardian 12 December 2018.
In evidence the Applicant stated that he had instructed a lawyer in the United States to commence proceedings to have the IRN withdrawn but he was unable to provide any written evidence to this effect or to indicate to the Tribunal what progress (or otherwise) might have been made with any such application. In the absence of such confirmatory material the Tribunal cannot accord any significant weight to the Applicant’s claim to have been active in this matter.
The Respondent put to the Tribunal that, in the light of the Applicant’s statements that he was actively seeking a review of the IRN, it would be, in their submission “premature” to proceed with further consideration of this application until any such review or determination had been made. However, in the light of the Tribunal’s comment above, this was not a suggestion embraced by the Tribunal.
ISSUE OF “GOOD CHARACTER”
The Tribunal must determine if the Applicant meets the test of good character, a term not defined in the legislation but the subject of clear judicial guidance. In Irving the Tribunal related the term to an individual possessing “enduring moral qualities” rather than transitory qualities of fame or reputation.[41] In Zheng the Tribunal referred to the extent to which an individual by their deeds and words demonstrated loyalty to and respect for Australian values, the rights and liberties of others and the rule of law.[42]
[41] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 68 FCR 422 at [431-432].
[42] Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
Chapter 11 of the Australian Citizenship Policy gives a (non-exhaustive) list of “characteristics of good character” which , in this context, include such matters as not concealing details of convictions, not being subject to an extradition order or international arrest warrant or to be involved with (or associated with people involved with) criminal or anti-social behaviour.[43]
[43] Australian Citizenship Policy (effective 1 June 2016) at page [147].
Respondent
The Respondent’s attack on the Applicant’s “good character” rests entirely upon an acceptance of the proposition that he is guilty of the crimes of bribery which are asserted in the Red Notice, none of which have been brought to trial, none of which have been proven and all of which are denied.
The Respondent makes this explicit in their Statement of Facts, Issues and Contentions as follows:
(28) In considering whether the applicant is of good character, the Policy provides specific guidance on the assessment of an applicant’s general conduct. The assessment requires consideration of all relevant aspects of a person’s circumstances, but may result in a lack of satisfaction as to a person’s good character because of ‘a single adverse incident if it is of sufficient weight and seriousness’. [44]
(29) In the circumstances of this case, having regard to the Chinese government’s decision to commence an formal investigation, the decision to arrest, the arrest warrant, the information provided by facsimile dated 20 February 2017, and that the applicant is the subject of a current international arrest warrant (the IRN), the Tribunal should not be satisfied that the applicant is of good character. Indeed, being the subject of an international arrest warrant is specifically referred to in Chapter 11 of the Policy (extracted above) and clearly falls outside the expected characteristics of someone of good character.
…….
(31) As noted above, the IRN alleges that from 2002 to 2009 the applicant accepted bribes through his family members and secured benefits for others illegally. The applicant refutes the allegations made against him. The applicant has not provided any witness statements from people who knew the applicant at the time the alleged offence(s) occurred.
(32) The applicant has submitted a number of references to the delegate who originally decided the application, and to the Tribunal in this proceeding, which speak to the applicant’s good character.
(33) It is apparent that not one of the referees knew the applicant prior to incident which is the subject of the IRN, and cannot speak to any change in the applicant’s character since that time. For this reason, the Tribunal should give limited weight to those references.
[44] Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].

The Respondent also puts forward the argument to the effect that
“a clear analogy may be drawn between the negative impact on character assessment under s 21(4)(f) of the Act, of an arrest warrant issued by a foreign government that is the subject of a current Interpol Red Notice and the prohibition on approving citizenship applications in s 24(6)(a) of the Act, where an applicant for citizenship has proceedings for an offence against an Australian law pending against him or her.”[45]
[45] Respondent’s response to Tribunal request for further submission, provided in email form dated 27 March 2019.
Because the existence of IRNs in citizenship proceedings is a rare occurrence there appears to be no previous judicial guidance as to whether or not this analogy should be accepted as outlined.
The Respondent has also placed weight on the fact that the Applicant has failed to provide a Penal Clearance Certificate from the Chinese authorities. In the circumstances of this case that is hardly surprising and the Tribunal discounts this as a major impediment to assessing the matter of the Applicant’s good character.
Applicant
The Applicant has supplied a number of character references in support of his application.[46] Several of these are from members of the Chinese community with whom the Applicant is in touch through membership of the same church. In these references Dr Kitty Fok and Lin Chen speak of the Applicant’s good character, his volunteer work in the church and his commitment to his family. Other members of the Chinese community provide similar levels of support: Xinxin Ji; Owen (Zhihong) Chen; Joe Wang and Zhihua Zhang. In each of these, reference is also made to the referees knowledge of the bribery allegations made against the Applicant which they dismiss as lacking in credibility.
[46] References from Kitty Fok, Lin Chen, Xinxin Ji, Owen Chen, Zhihua Zhang, Gary Jeng, Rev Elizabeth Orr and Lipsing Su are attached to the Applicant’s Statement of 20 November 2018. References from the other parties appear in the Section 37 Tribunal Documents: Rev Raymond Leung at [56], Geoff Brindle at [57] and Gary Doherty as [58].
Further letters of support are provided from Revered Elizabeth Orr of the Holroyd Uniting Church and Rev Raymond Leung of St Phillip’s Anglican Church, Eastwood. Two of the Applicant’s neighbours, Gary Jeng and Geoff Brindle have written on his behalf as have his accountant, Lipsing Su and his solicitor Gary Doherty.
The consistent theme of the references is that the Applicant is a hard-working member of the local community, a caring grandparent and a good neighbour.
As noted above, the Respondent urges the Tribunal to discount these references, in part on the basis that they are from people who cannot attest to the Applicant’s character prior to the issue of the IRN and hence cannot speak to any “change” in his character since that time.
The Tribunal finds this a bizarre point of attack. In the first instance such referees would have to come from China. They would have to provide positive comments about a person sought for discipline by the local Communist Party authorities and subject to public denunciation by the state authorities as a person who has accepted bribes. To expect such references to be forthcoming from people who are continuing to live in that environment is, to say the least, fanciful. Secondly the criticism presupposes that the Applicant is guilty as alleged, because, if this were not the case, there would be no reference to “change” or to a before/after comparison.
CONSIDERATIONS
The essential question facing the Tribunal is the weight which it gives to both the bribery allegations and the Chinese government arrest warrant which form the basis of the Interpol Red Notice and the proceedings of the Communist Party of China against the Applicant for (admitted) breaches of party discipline and rules.
It is easier to deal with the latter issue first.
The Tribunal finds it difficult to accept a proposition whereby a Minister (democratically elected and accountable to the people) asks a Tribunal (whose authority and legitimacy derives from legislation enacted by a freely elected and representative parliament) to make an adverse character assessment of an individual on the basis that he has disobeyed the petty and controlling dictates of an organisation to whom the concepts of democracy, personal freedom and the rule of law are alien if not anathema.
To defy the Party in defence of the family, knowing personally of the potential consequences of such behaviour is, in the opinion of the Tribunal more a testament to being of good character than the contrary.
The status of the IRN and its weight in these considerations is more problematic. Clearly Australia is an active member of, and contributor to the work of Interpol and that organisation plays an important part, not only in international policing activities, but in contributing to the safety and security of this Nation. IRNs which identify people resident in Australia need to be taken seriously.
However, the Applicant has challenged this particular IRN and has submitted some evidence which calls into question the extent to which IRNs issued at the behest of the government of the PRC may be tainted by considerations of an essentially political nature having much to do with the internal dynamics of the CPC.
The Tribunal is inclined to accept much of the Applicant’s argument on this point. In particular the following matters trouble the Tribunal in relation to accepting the allegations in the IRN at face value:
·Although there is clearly an arrest warrant issued by the Chinese authorities, the bribery allegations in both it and the IRN are vague, unspecified and lacking in any detail and so cannot be considered in the way in which they were in both Shin and Lin (above);
·The allegations are that members of the Applicant’s family were involved in and were beneficiaries of his criminal conduct and yet none of them appears to have been subject to investigation or arrest and furthermore his daughter-in-law was able to travel to and return from China without impediment, although being detained for some time where the emphasis appears to have been upon persuading the Applicant to return to face the charges bought by the Party;
·The timing of the issue of both the arrest warrant (and the delay between 2011 and 2015 in initiating proceedings) and subsequently the IRN suggests a connection between those proceedings and the proceedings initiated by the Party authorities for the breach of party discipline and rules.
Implicit in the Minister’s position is an acceptance, by him, of the prima facie guilt of the Applicant in relation to the bribery allegations. This is not a position shared by the Tribunal for the reasons stated above.
Since the Minister’s argument that the Applicant is not of good character stands or falls solely on the basis of the character assessment related to the IRN, it must, in the opinion of the Tribunal, be found to be unpersuasive.
On the other hand the current references should be accorded some respect and weight although admittedly they reflect a current assessment and far less of an “enduring” assessment. However they do cover the last 5 or 6 years of the Applicant’s residence in Australia and his own evidence of his volunteer work in the church and Chinese community was not questioned by the Respondent.
The Tribunal also notes that all of the Applicant’s family in Australia, including his wife are Australian citizens and it appreciates his desire to join them in that community. He has also participated actively in English language programmes to enhance his fuller participation in community life and activities. He receives some degree of financial support from his son (via distributions from a family trust) and where appropriate he fulfils his taxation obligations.
The Tribunal makes no adverse findings in relation to the Applicant’s good character arising from his breach of Communist Party internal discipline or rules – if anything it finds to the contrary regarding his preference for family over Party.
On balance, the Tribunal makes no adverse findings in relation to the Applicant’s good character arising from the issuance of a Chinese government arrest warrant for unspecified acts of bribery nor the resultant issuing of the Interpol Red Notice. The reasons for the Tribunal’s on balance decision have been set out above.
The Tribunal accords some weight to the character references supplied by the Applicant and to the oral testimony which he gave, and which, in relation to all matters other than the bribery allegations, was not materially challenged.
DECISION
The Applicant meets the “good character” test as set out in section 21(4)(f) of the Act. The decision under review is set aside.

I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...........................[sgd].............................................
Associate
Dated: 5 April 2019

Date(s) of hearing: 25 March 2019

Date final submissions received: 27 March 2019

Counsel for the Applicant: Mr R Chia

Solicitors for the Applicant: Mr G Doherty, Low Doherty & Stratford

Solicitors for the Respondent: Ms B Griffin, Australian Government Solicitor

Date(s) of hearing:	25 March 2019
Date final submissions received:	27 March 2019
Counsel for the Applicant:	Mr R Chia
Solicitors for the Applicant:	Mr G Doherty, Low Doherty & Stratford
Solicitors for the Respondent:	Ms B Griffin, Australian Government Solicitor