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

[2020] AATA 1924

Wang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1924 (26 June 2020)

Division:GENERAL DIVISION

File Number:2019/3068          

Re:Yong Wang    

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:26 June 2020

Place:Melbourne

The decision under review is set aside and the matter is remitted to the Respondent in accordance with a direction that the Applicant  satisfies the good character requirement in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth).

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

Senior Member

Catchwords

CITIZENSHIP – application for Australian citizenship refused – good character requirement not satisfied – detention warrant issued in China for Applicant’s detention – Chinese authorities claim Applicant illegally absorbed public deposits in her role as a business manager – decision under review set aside and remitted

Legislation

Australian Citizenship Act 2007 (Cth)

Corporations Act 2001 (Cth)

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Briginshaw v Briginshaw (1938) 60 CLR 336

Jones v Dunkel (1959) 101 CLR 298

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

26 June 2020

BACKGROUND

1. A decision made on behalf of the Respondent, dated 2 May 2019, refused the application of Ms Yong Wang, the Applicant, to become an Australian citizen. The refusal was on the ground that she failed to meet all the requirements set out in s 21(2) of the Australian Citizenship Act 2007 (Cth) (“Act”) in that she failed to satisfy the good character requirement.

2. The Applicant applies to the Tribunal to have that decision set aside.

   LEGISLATION

3. Section 21(2) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied of a number of matters in regards to that person, including that the person –

   (h)          is of good character at the time of the Minister’s decision on the

   application.

4. The issue is whether the decision of the Respondent to refuse the Applicant’s application on the ground of s 21(2)(h) of the Act is the correct or preferable decision in light of the evidence presented to the Tribunal.

   HEARING

5. At the hearing on 19 February 2020 the Applicant was represented by Mr J RT Love of Counsel and Mr N Rogers, lawyer at the Australian Government Solicitor, appeared for the Respondent.

6. At the hearing sworn evidence was given by the Applicant (through an interpreter), Mr Sherman Huang, Ms Yin Ling Janice Chan and Ms Wenqi Chen. Each witness was cross examined. No witnesses were called by the Respondent.

7. T Documents and Supplementary T Documents were received into evidence.

8. At the conclusion of the hearing, I said I was reserving my decision and that it would be delivered in due course.

9. For the reasons below, I have decided to set aside the decision under review and remit the matter to the Respondent with a direction that the Applicant is of good character.

   EVIDENCE

   Yong Wang

10. The Applicant gave brief evidence in which she confirmed the contents of her Statutory Declaration made on 28 January 2020 were true and correct, apart from some minor corrections.

11. In the Statutory Declaration the Applicant provided various details about herself – including that she was born in 1968, that she married Yong Chen in China in 1993 and that together they have two children, one of whom is Wenqi Chen. The Applicant stated she applied for Australian citizenship in July 2016 but was unsuccessful. The Applicant’s husband had sought a “penal certificate” from the Police in China but was told that his wife would need to do so personally. Subsequently, the Applicant  learned that there were serious allegations being made against her by Chinese authorities and that in a fax to the Australian Department of Home Affairs dated 4 May 2018 she had been named “a  Chinese fugitive”. This was based on allegations made that she engaged in fraudulent dealings and had “absorbed” funds belonging to the public while she was working at the Qingdao branch of Harbin Tian Ye Co Ltd in China.

12. The Applicant stated that it came to her attention that an arrest warrant had been issued on or about 27 June 2017 by the Qingdao People’s Procuratorate, Shinan District. She stated that she first learned of the warrant on 12 July 2019 and she was “completely surprised and shocked” by it. Further, the Applicant stated that in the present matter “merely bare allegations” are made against her with “no supporting material”. She stated that she has “no case to answer” and that “given the absence of any substantive negative factor against me, I say I satisfy the character requirements as set out in the Act”. Consequently, she seeks the Tribunal to set aside the decision of 2 May 2019.

13. In answer to questions in cross examination the Applicant agreed that she had signed a Form 80 as true and correct but wrote “NA” when asked about brothers and sisters, not disclosing that she had siblings.  She agreed she did the same with a similar form in 2010 by writing “NA”. In relation to the latter form she agreed that she had said she was self-employed when asked what her present occupation was, whereas at the time she had temporary employment with a company. She indicated that she had relied on her migration agent, stating “I fully trust my migration agent because I don’t understand the system, how it works, that’s why I engaged that migration agent”. She said that the form was “pre-filled”  so that “all I had to do at that time was put my signature on it”.

14. The Applicant was then asked about her work with Harbin Tian Ye Co. She said she was offered the job there by a female who lived upstairs from her whom she knew. She said she worked there from June 2009 until January 2011 during ordinary business hours. There were about four employees in the business and the manager was Ms Li. The Applicant said she was in charge of all the miscellaneous work in the office such as doing tasks for Ms Li or running errands for the accountant. The job at the company was not one which had followed the normal employment processes, such as via recruitment. She said there was no written contract of her employment and that she was paid cash in hand. Nothing was signed by way of a receipt if money was given to her by the manager.

15. In the Applicant’s declaration in support of her application for citizenship, she agreed that she said two directors at the company had been charged—one was Ms Li and the other was the son of the Chair of the Board.

16. The Applicant said she recalled being contacted in Australia by phone by the Chinese authorities from the Bureau of Public Security in 2016. She said she was asked to return to China to assist with inquiries. She said she told the caller that “I don’t think I have anything that I could tell you” but she did agree that she offered to “provide information from Australia”. She agreed she had returned to China in 2011 to look after her mother-in-law and while there she had heard “a little” about the company “having bit of trouble paying off money”. She said, when asked the question, that it was not a “scandal”.

17. The Applicant was then asked questions in further cross examination about bank transactions in Australia.

18. One such transaction was the withdrawal of  $13,000 on 19 June 2018 which the Applicant said was transferred to a friend who was in financial difficulty. Another (earlier) transaction was on 5 February 2018 also for $13,000 which the Applicant said was withdrawn to buy a new car after a collision involving her husband’s car. The car was purchased for $11,000 and it was second-hand. Another (yet earlier again) transaction was on 2 September 2016 when $10,868 was withdrawn . The Applicant said this was transferred to China to pay her younger sister whose “family got cancer and she tried to borrow money from me … So I lend it to her”.  It was in fact for assistance with her sister’s father-in-law—“just to keep the treatment going”.

19. Going back further, another transaction on 8 April 2014 was for $3,022. The Applicant said this was withdrawn and sent to Ms Shu Mai Yu for cancer treatment of Ms Hai Fong Sun both of whom were like godmothers to her child. On 24 Mach 2014 there was a withdrawal transaction for $5,012 which the Applicant said was transferred to China as a wedding gift for her husband’s cousin. Although this was a lot of money she agreed, she said the others in the family were paying the same so “we just followed everyone [else]”.

20. The Applicant agreed there was a withdrawal of $10,000 on 21 November 2013 which she said was paid in cash to help a friend purchase a property who was arriving in Australia at the same time as her. This was at a time she agreed she was “saving for [her] own mortgage”. She pointed out that this money had been repaid. She said that she had a “kind of habit …when I was in China so when people just try to borrow money from me I felt very hard to turn them down”. Another transaction on 2 July 2012 recorded a withdrawal of $10,000 but no questions of the Applicant appeared to come out of this.

21. The Applicant agreed that there was a deposit of $15,000 made on 20 April 2012. When asked about this the Applicant indicated this money “could be money brought over or money owed by other family”. She then recalled (although it was a “long time ago”) that the money was paid into an account in a neighbouring bank for higher interest. The Applicant also agreed there was another deposit of $15,000 made on 26 September 2011. The Applicant recalled that this was money she had brought over from China in cash. Nothing further was asked about this.

22. The Applicant was then asked questions about information appearing in her application for citizenship. One question asked was about travel to China and the Applicant said she was in China from 30 October 2011 until 11 November 2011. There was some confusion at this point with Mr Rogers and the Applicant. It appears that the Applicant was in Australia between those dates but left for China on the later date for three months. She agreed that she had signed the application form, but she stated it was filled in by her daughter who was then about 10 years old. She said “Because I don’t speak English, there is no way I could verify…my daughter putting in that in this application…I trusted her”.

23. Cross examination ended at this point and there was no re-examination.

24. I then asked the Applicant about the allegations being made about theft or misuse of moneys in China. The Applicant said –“ I had no power accessing the money, the company’s money… There is no way that I could ever touched or transfer the money from the company”. I asked her about her allegation of the Chinese legal system being “corrupt” and  what she relied on for her view. She said “ I guess I know things happen that is going on in the Chinese society.” She said that she regarded the judges in China as corrupt.

    Sherman Huang

25. Pastor Huang gave sworn evidence in which he said that he is an ordained pastor at Crossway Baptist Church (and a qualified town planner). He confirmed the contents of a Statutory Declaration which he made on 19 January 2020.

26. In the Statutory Declaration Pastor Huang said, amongst other things, that he has known the Applicant and her family since March 2012 and has “observed [her] as a lady of integrity and of a godly character”. He said she is “a very hospitable, caring and tender-hearted lady” who “often provides for those in needs”.

27. In cross-examination, Pastor Huang agreed he did not know anything of the Applicant’s life in China prior to coming to Australia.

    Yin Ling Janice Chan

28. Ms Chan gave sworn evidence and confirmed the contents of a Statutory Declaration which she made on 13 February 2020.

29. In that Statutory Declaration Ms Chan incorporates a letter of 16 July 2019 in which she describes the Applicant as “compassionate, generous and supportive”. She said the Applicant is a “valuable member in the Care team, she is humble, responsive” and “won’t hesitate to help someone in needs”.

30. In cross examination, Ms Chan agreed that she had only known the Applicant since 2012 and did not know anything of her financial circumstances when she was in China. She said she had met the Applicant’s husband before meeting the Applicant herself.

31. In response to my questions, Ms Chan said the Applicant “doesn’t good in English” and indicated that the Applicant is “honest to me”.

    Wen Qi Chen

32. Ms Chen gave sworn evidence that she is a personal carer in an aged care facility studying nursing. She confirmed the contents of her Statutory Declaration made on 28 January 2020.

33. In the Statutory Declaration Ms Chen confirmed that she is the daughter of the Applicant. She said the Applicant “has been a wonderful loving parent and has been a good citizen both in China and in Australia”. She said “[in] my view the allegations against my mother are totally fabricated”. She said “[for] reasons unknown to me someone in China who is responsible for the wrongdoing at Tian Ye Co, has decided to blame my innocent mother for their crimes”. She stated, “I am sure that my mother is an honest, law-abiding person and is of good character”.

34. In cross examination Ms Chen was asked to explain what her mother was doing in China “at the time”, She answered that she knew “a little bit”. She agreed she was “quite young” at the time.

35. I noted that Mr Rogers did not explain what he meant by “at the time”, it could have been referring to the year 2008 but it was not made clear. Mr Rogers also did not ask Ms Chen any questions about the assistance she purportedly gave to her mother to complete the application for citizenship, at a time when she was a child of about 10 years.

    CONTENTIONS AND SUBMISSIONS

36. The Applicant contends that the decision under review should be set aside.

37. The Applicant submitted that there is no ground for it to be properly said that she is not of “good character” and therefore the decision under review cannot be supported. Mr Love said that “the case that she’s not a person of good character has not been made out”. In regards to the Chinese warrant in the matter, he said concerning the Chinese legal system that “there is significant evidence to suggest it is very corrupt … in China the legal system is very much at the hands of the party”.

38. Amongst many other things, Mr Love described the Applicant as being “really in a catch 22”: that is to say, “She can’t really do much to profess her innocence, and then she’s accused of not doing anything to establish her innocence”. Mention was made by Mr Love (as a result of a question by me) of the decision in Briginshaw v Briginshaw (1938) 60 CLR 336. He summarised that the allegations against the Applicant “just don’t stack up”.

39. The Respondent contends that the decision under review should be affirmed.

40. Mr Rogers stressed that “we have the …  facsimile from the Chinese authorities” and also “the detention warrant”. He submitted that “attempts to undermine the allegations … shouldn’t be accepted”. He submitted that the standard of good character  was not really in issue in the matter as “it’s quite a sort of abstract concept looking at the enduring moral  qualities of a person”. He referred me to authorities and took me to the decision of O’Bryan J in BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 (especially at [54]). Mr Rogers submitted that in light of the ruling in that case the decision in Briginshaw could not have application in the present matter. He submitted that for me “The question is a state of satisfaction”. He said “it’s not part of the Minister’s case that there has been a charge in this case, rather it appears that there are various allegations against [the Applicant] which the Chinese authorities want her in order to investigate those”. He said it “should be accepted … that they would involve serious criminal conduct being dishonesty in obtaining substantial financial advantage by deception”. He indicated that “it’s important to weigh this information from Chinese authorities in the wider context of cooperation between China and Australia”.

41. Mr Rogers then proceeded to go into the details of the various matters involved but prefaced doing so with the submission that “there’s enough credibility in the allegations made against the Applicant in this case”. That appears to be connected with a reference to “Chinese nationals escaping the reach of Chinese law in Australia”. He then mentioned several matters to which I should have regard including a “confession from a person called Xi Ling Li” and the “continued interest by the Chinese authorities in the Applicant”. He submitted that the absence of an actual charge “doesn’t undermine the allegation [against the Applicant] because her detention is required in order to investigate it and presumably on such detention, she would then become liable to be charged”. He submitted that I should also give weight to “the fact that Chinese authorities have sought Australia’s co-operation with the case”. In summary, he said, “the Minister says the Tribunal ought not be satisfied that the Applicant is of good character, and so finding should affirm because she’s not eligible”.

    CONSIDERATION

42. I have been taken far and wide in the submissions of the parties in my view. From the Applicant’s side to the alleged corruption of the Chinese legal system and from the Respondent’s side to the need to ensure continuing co-operation between China and Australia.  I do not consider that the Tribunal must address these issues.

43. The question I have to decide is a narrow one. Is it or is it not the case that the Applicant is of “good character” under s 21(2)(h) of the Act? If the Applicant is of good character, she is eligible for citizenship – there being no other ground advanced which would make her ineligible. If the Applicant, however, is not of good character then she is ineligible.

44. The approach I adopt to this question is that set out (in accordance with the authorities cited) by O’Bryan J in BOY19, above, at [54]. His Honour there says that the word “satisfied” in s 21(2)(h) of the Act “is not amenable to the application of the evidentiary burden of proof, such as balance of probabilities”. In particular Briginshaw, above, has no application. The matter I must be satisfied about (as Mr Rogers submitted), namely, “the Applicant’s good character, is not a fact to be proved but an opinion requiring evaluative judgment”. As His Honour goes on further to observe (at [55]) I am required to “reach an affirmative belief that the applicant is a person of good character”. It is not necessary for me to have “a high degree of confidence” that this is so but at the same time it is not sufficient for me simply to believe there is “a chance” this is so. I think it is clear, as well, that I must exercise my powers of decision reasonably.

45. Following out these precepts, I am satisfied ( indeed ,I do have a high degree of confidence in my belief) that the Applicant is of good character under s 21(2)(h) of the Act. I am satisfied that there is not merely a chance that this is so. I am confident of my view analysing the evidence, I consider, reasonably.

46. I leave aside (for the moment) the matter with the Chinese authorities. But I was not told of the Applicant having any prior convictions in Australia or China or anywhere else. That is important. As far the law is concerned, the Applicant has led a blameless life. She has never appeared before a court.

47. Her unblemished character in this regard is given weight by the character witnesses who came to the Tribunal to give evidence on her behalf. Those witnesses admittedly include her daughter who might be expected to say her mother is of good character. But I did not regard her to be lying or exaggerating. Pastor Huang was particularly impressive. He is not only a pastor but a qualified town planner and obviously an individual of learning. It is true that he cannot speak as to the Applicant’s activities in China before coming to Australia, but the Applicant’s daughter is able to do so and speaks positively of her mother. Ms Chan could speak of the Applicant’s husband in China and indicated nothing negative.

1. It could be argued (but was not distinctly) that the Applicant should have called her husband also to give evidence. But in light of the ruling in BOY19, above, I do not think anything can be made of this along the lines of Jonesv Dunkel (1959) 101 CLR 298 . In any event, if the rule in that case did apply, it could work to the disadvantage not only of the Applicant but also the Respondent. I assume the Applicant’s husband was available to be called by either side.

2. I turn now to consider the matter with the Chinese authorities. I consider the only reasonably available information I have of any wrongdoing by the Applicant in China is confined to the matters alleged in the Detention Warrant of the Applicant.  That (translated) says, amongst other things, that it “has been found that between 2010 and March 2012, Suspect WANG Yougqin (the Business Manager of Harbin Tianye Co. Ltd, Qingdao Branch) illegally absorbed public deposits by falsely claiming of various projects, including purchasing Haci Group, establishing an electric automobile manufacturing base, investing silicon batteries etc. She attracted the public funds in the name of Harbin Tianye Co Ltd by promising interest rates as high as 48% to 72%, even though the company was not qualified to collect public deposits or lend loans which requires approval from China financial regulators”. It goes on to say the amount of funds involved reached RMB 13.5 million, of which RMB 10.8 million was transferred to the bank accounts of the Applicant, her husband and daughter. It then continues that the Applicant withdrew the money later on and “the rest of the money” was used for personal consumption after which it says the Applicant “fled” to Australia on 9 August 2012. It records that on 27 June 2017 Qingdao People’s Procuratorate, Shinan District, approved the Applicant’s arrest.

3. Even making allowances for translation issues, I find this is a very confusing document.  I am assuming, without knowing for a fact, that there is an offence under Chinese law of illegally absorbing public deposits or similar. Perhaps there could be a similar offence to this under Australian law in the prospectus provisions of the Corporations Act 2001 (Cth) or similar. But on its face only, serious questions of regularity arise. It is not clear, for example, how the Applicant’s (very) young daughter could have had a bank account. It is hard to see also how it could be claimed the Applicant “fled” to Australia some five or six months after the end of the period between 2010 and March 2012. That does not seem to be “fleeing” – which indicates exaggeration and thus inaccuracy on that point. But if that is inaccurate, might the document be inaccurate yet in other ways – and, if so, in which? I also find it unexplained why, if the Applicant fled to Australia, definite action was not taken until 27 June 2017. That is a delay of nearly five years after the fleeing.  I am doubtful about this and about the accuracy of matters asserted—why not act more swiftly? Surely, in a serious matter involving considerable sums of money, action would be taken more quickly before funds were dissipated.

4. Some of these matters could have been clarified or rectified if I had heard from the police detectives involved. But no statement was sought from them so I have no idea what they might say. I have no idea of their training; what detection techniques were used by them; what procedures they followed; what witnesses or other persons were interviewed by them; or, even, whether they know or suspect others to have been guilty of wrongdoing.  I can assume nothing from the fact that the Detention Warrant exists. It could have been issued on an entirely false basis. It could have been procured by falsehoods or fraud.

5. This means also of course that, excluding the Applicant’s evidence for the  moment, I cannot form any view about whether what is stated in the Detention Warrant can be supported at all, even at a prima facie level. Perhaps the officers might say that subsequent investigations have since shown they were mistaken in some one or more material respects. Perhaps however they would maintain their position still.  But even if they would, on what basis should I give preference to the averments in the Detention Warrant over the presumption of innocence which exists in Australia? Nothing was advanced as a basis. I assume, therefore, none was able to be advanced.

6. Any occasion of wrongdoing by the Applicant is denied by her and, leaving aside (for the moment) the various bank transactions she was cross examined about, I have no reason available to me on any reasonable analysis to say she is not telling me the truth. There were some hesitations in her evidence, but I put those down to interpreter issues. Similarly, I do not make much point of mistakes or omissions made by her in formal documentation. And, moreover, based on her evidence I could see no basis for saying that the Applicant was the “Business Manager” of the company involved. It seems to me that her role in the company was a much more lowly one.

7. Finally, I turn to the various bank transactions I was told about. They could total perhaps $70,000 or $80,000 of dealings (sometimes deposits, not always withdrawals) over maybe seven or eight years. In itself that is a large, but not suspicious, amount.  It would not be less or more suspicious if it was higher or lower. Over that period, again the amount involved is not in itself questionable. I was given no or no detailed information about bank accounts of the Applicant (if any) in China either at the present day or before she left China — despite the latter being referred to in the Detention Warrant. Nor was I given any information about the bank accounts of her husband in China or of her daughter – despite these too being referred to in the Detention Warrant.

8. Mr Rogers sought to make something of these bank transaction amounts – but not in cross examination as I recall in regard to the withdrawal of the $10,000 on 2 July 2012. That to my mind, is of some significance if the terms of the Detention Warrant are considered again. That withdrawal is a little over a month before the Applicant was accused of having “fled” to Australia. I am inclined to assume, if I am right, that there was no basis in Mr Rogers’ instructions to specifically ask about that withdrawal. That, or it was overlooked or not considered significant.

9. Mr Rogers sought the Applicant’s explanations for these various deposits and withdrawals.  I could not, acting reasonably I consider, draw the adverse inference that the Respondent’s representative would expect me to draw. At times the Applicant gave out moneys in circumstances where I would not do so. To friends and so on or for an expensive  wedding gift. But am I reasonably able to say, that on each occasion the payment is suspicious? Or that all such payments are suspicious? In my view, I cannot do so—although again, they might not be payments I would make.. Some might seem odd – lending money to someone when you are trying to afford things yourself – but that is all I can say.

10. I was not given proper information as to how these various sums ended up in the Applicant’s accounts. On one occasion or more I was told it was money brought from China. But that in itself is not wrong. And in the absence of information as to the source of funds on each occasion – which as I have indicated the Respondent did not inform me about in any meaningful way – all I can reasonably say is that the various transactions did in fact occur but nothing stands out as obvious wrongdoing. Certainly, there was nothing at all – apart from the assertions in the Detention Warrant – to connect the various transactions with moneys supposedly missing from the company which the Chinese police allege the Applicant put to her own use. 

11. Despite what the Respondent would wish me to do, I cannot find that my questions about the various transactions are enough to raise in me doubts that the Applicant was on all or any occasion acting improperly. It has not been lost on me either that the character witnesses spoke of the Applicant’s generosity and willingness to help others. I have no substantial reason of any sort to hold that this is not so. Moreover, as I have noted, the Applicant has no history or record of wrongdoing in Australia and is in apparently a stable home relationship and is of strong religiosity.

    CONCLUSION

12. The conclusion I reach for the above reasons, in the way indicated by authority, is that the decision under review must be set aside.

13. Such decision was wrongly based on the Applicant not being of good character under              s 21(2)(h) of the Act. I find that she is of good character under that provision.

14. In my view the Respondent’s decision cannot be sustained on any reasonable basis.         The decision under review is set aside and the matter is remitted to the Respondent in accordance with a direction that the Applicant  satisfies the good character requirement in s 21(2)(h) of the Act.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of                Dr Damien Cremean, Senior Member

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

Associate

Dated: 26 June 2020

Date of hearing:	19 February 2020
Counsel for the Applicant:	Mr J RT Love
Solicitors for the Applicant:	Australian Legal Advisory Centre
Advocate for the Respondent:	Mr N Rogers
Solicitors for the Respondent:	Australian Government Solicitor