Yicheng Zhao and Minister for Immigration and Border Protection
[2015] AATA 6
•7 January 2015
[2015] AATA 6
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1488
Re
Yicheng Zhao
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member Date 7 January 2015 Place Sydney The decision under review is set aside and remitted to the Respondent for reconsideration with the direction that the Applicant is of good character.
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Professor R McCallum AO, Member
CATCHWORDS
CITIZENSHIP – eligibility – whether applicant is of good character – decision under review set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) s 21
Australian Passports Act 2005 (Cth) s 36
CASES
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Professor R McCallum AO, Member
7 January 2015
BACKGROUND
The Applicant, Mr Yicheng Zhao, was born in China. He came to Australia on a student visa in 2002, and in 2005, he married an Australian citizen whom I shall call his first wife.
On 16 January 2006, when attempting to fly back to China, the Applicant was stopped by Customs officials at Sydney Airport. The officials noticed that a page of the Applicant’s Chinese passport had been interfered with. When the Applicant’s travel documents were examined, a forged visa was found in his possession. It had been taken out of his passport.
In May 2006, at the Downing Centre Local Court, the Applicant was convicted of the criminal offence of possessing a false Australian travel document, contrary to section 36(1) of the Australian Passports Act 2005 (Cth). Section 36 provides:
(1) A person commits an offence if:
(a) the person has possession or control of a document; and
(b) the person knows that the document is a false Australian travel document.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note:The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code.
The penalties set out at the foot of section 36(1) are maximum penalties. At the time of the conviction of the Applicant, a penalty unit was worth $110. At the present time, a penalty unit is worth $170.
The Applicant was neither fined or sent to prison. Instead he was sentenced to do 100 hours of community service. The Applicant has no other convictions.
On 4 April 2011, the Applicant became a permanent resident, and on 13 June 2013 he applied for Australian citizenship by conferral. In his application, the Applicant disclosed his 2006 conviction. On 19 February 2014, the Minister’s delegate refused his application on the grounds that he was not a person of good character. On 24 March 2014, the Applicant applied to this Tribunal for review of the decision of the Minister’s delegate.
THE LEGISLATION
The relevant legislation is the Australian Citizenship Act 2007 (Cth) (the Citizenship Act). The provision on which the Minister’s delegate relied to refuse the Applicant’s application for citizenship is section 21(2)(h). It provides:
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
...
(h) is of good character at the time of the Minister's decision on the application.
THE MEANING OF “GOOD CHARACTER”
The Citizenship Act does not define “good character”. Guidance is found in Chapter 10 of the Australian Citizenship Instructions (the ACIs) which offer guidance on policy in relation to the interpretation of, and exercise of powers under, the Citizenship Act and the Australian Citizenship Regulations 2007. They are government policy and should be applied unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The ACIs state that “‘Good character’ ... is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship” (section 10.1.2).
As to the meaning of “good character”, the ACIs cite Lee J in the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, where his Honour said at 431-432:
Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The ACIs state that the phrase “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time, including: distinguishing right from wrong; behaving in an ethical manner; and conforming to the rules and values of Australian society. This broad definition means that “a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes” (section 10.3.1).
The ACIs provide a non-exhaustive list of the qualities expected of persons of good character: they will respect and abide by the law in Australia and other countries; be honest and financially responsible; be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations (for example, they will not engage in material deception during visa and citizenship applications) (section 10.3.4).
The ACIs set out at length relevant factors when considering the implications of a person’s criminal record for their character. They include whether the applicant has disclosed in their citizenship application that they had committed any offence; the nature and seriousness of the offence (crimes of violence, including domestic violence, and other offences incurring prison sentences of 12 months or more are regarded as serious offences); whether the offence was pre-meditated, whether it was a “one-off” offence or whether there was a “pattern of criminal behaviour”, and the length of sentence. It is noted that decisions of courts, particularly sentencing remarks, may provide insight into the character of the applicant (section 10.5.2).
Mitigating factors may mean that, despite serious offending, a person may be found to be of good character. Factors to be taken into account include: the time that has elapsed since offending, whether the person has accepted responsibility and shown remorse for their conduct, their age at the time of offending, and any extenuating circumstances relating to the offences. Evidence of length of employment, stable family life and community involvement may be indicators of good character and references from independent people such as employers may be helpful (section 10.5.2).
THE EVIDENCE OF THE APPLICANT
The Applicant gave sworn evidence. He said that in 2004, he had purchased an Australian permanent visa for $20,000. When he showed it to his first wife she explained to him that this visa was a forgery. The Applicant said that he removed the false visa from his passport. However, he took no steps to inform the authorities, either that he had purchased a false visa, or the name of the person from whom he had purchased the false visa.
When asked in cross-examination why he had purchased this false visa, he said that he was young and foolish and did not understand Australian law. On 16 January 2006 when he was stopped by Customs officials at Sydney Airport he was 20 years of age. When asked whether he was sorry for what he had done, he said yes and that it had put a stain on his character.
OTHER EVIDENCE
I have examined all of the documents before this Tribunal.
Evidence was also given over the telephone by Mr Hao Liu. He had also written a statement in support of the Applicant which was before the Tribunal. In his evidence, Mr Hao Liu said that he had known the Applicant since about 2004. However, since 2007, he had not often seen the Applicant. He said that the circumstances leading up to the Applicant’s conviction amounted to a lapse of judgment. He said that the Applicant was dedicated to his family and to his work.
CONSIDERATION
The Applicant has been convicted of the offence of having in his possession a false Australian travel document, contrary to section 36(1) of the Australian Passports Act 2005. I regard this offence as a serious offence. From all of the evidence, I find that when purchasing the false visa for $20,000, the Applicant must have known, or at least must have suspected that the visa was false.
Weighed against the commission of this serious offence are the following mitigating factors. First, the Applicant committed this offence when he was a very young man. On 16 January 2006 when the Applicant was found to be in possession of a false Australian travel document he was 20 years of age.
Second, when attempting to depart Australia on 16 January 2006, the Applicant made no attempt to use this false visa.
Third, the Tribunal’s hearing, on Monday 15 December 2014, was conducted one month and one day short of nine years after he was arrested for this offence. He has committed no other offences for almost nine years. On the evidence before me, I find that this serious offence was a one-off offence by the Applicant.
Fourth, although it was possible for the Magistrate to either fine or impose a sentence of imprisonment on the Applicant for breaching section 36(1) of the Australian Passports Act 2005, the Magistrate only imposed a light sentence of 100 hours of community service.
Fifth, I give little weight to the statements of support from friends of the Applicant who were not available for cross examination at the hearing. However, I do give weight to the evidence and statement of Mr Hao Liu.
Finally, the Applicant said in evidence that he was sorry he had committed the offence. I find that he did show remorse for committing the offence.
Weighing up all of the evidence before me, and having regard to the mitigating factors which I have set out above, I find that the Applicant is a person of good character within the meaning of section 21(2)(h) of the Citizenship Act.
DECISION
As I find that the Applicant is a person of good character, the decision under review is set aside and remitted for reconsideration with a direction to that effect.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member ..............[sgd].....................................................
Associate
Dated 7 January 2015
Date of hearing 15 December 2014 Solicitor for the Applicant Ms Y Zhang, Ren Zhou Lawyers Solicitor for the Respondent Ms L Buchanan, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Citizenship
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Character Test
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Remorse
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Mitigating Factors
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