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

[2020] AATA 2312

Yoon and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 2312 (16 July 2020)

Division:GENERAL DIVISION

File Number(s):      2018/5943

Re:Muyng Ki Yoon

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:16 July 2020

Place:Sydney

The decision under review is affirmed.

................................[SGD].....................................

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – refusal to approve citizenship – good character requirement –  whether applicant is of good character – criminal conduct – traffic offences – false statements or representations – mitigating factors – Citizenship Policy – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21, 24, 52

CASES

Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Citizenship Policy

REASONS FOR DECISION

Senior Member A Poljak

16 July 2020

1. Mr Muyng Ki Yoon, the applicant, was born in South Korea. He first entered Australia on 14 June 1998 on a subclass 976 visitor visa. The applicant was unlawfully in Australia for various periods between 13 June 2001 and 21 September 2010, with the longest period of unlawfulness being approximately 6 years. He has remained lawfully in Australia since 21 September 2010.

2. The applicant is married and has two adult children, all of whom are Australian citizens.

3. On 15 May 2017, the applicant lodged an application for Australian Citizenship (“Citizenship application”) under section 21 of the Australian Citizenship Act 2007  (Cth) (“the Act”).

4. On 25 September 2018, the applicant’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be satisfied that the applicant was of good character for the purposes of subsection 24(1A) and paragraph 21(2)(h) of the Act (“the decision”). This is the decision under review in these proceedings.

5. The issue for the Tribunal to determine in these proceedings is whether it is satisfied that the applicant is of good character in accordance with paragraph 21(2)(h) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

6. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

7. Subsection 24(1) of that Act provides that if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen. Paragraph 52(1)(b) permits a person to make an application to the Tribunal for review of a decision under section 24 to refuse to approve a person becoming an Australian citizen.

8. The Act relevantly provides, at paragraph 21(2)(h), that a person is eligible to become an Australian citizen if the Minister is satisfied that the person “is of good character at the time of the Minister’s decision on the application.”

   DEFINITION OF ‘GOOD CHARACTER’

9. The term ‘good character’ is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy, which came into force as of 1 June 2016 (“the Policy”).

10. The role of the Policy is to offer guidance on the interpretation of, and exercise of powers under, the Act. Although I am not bound to strictly apply the Citizenship Policy, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

11. As to the definition of good character, the Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 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…

12. The Policy states the phrase “enduring moral qualities” which encompasses concepts of characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour being a manifestation of essential characteristics.

13. The Policy sets out a non-exhaustive list of characteristics of good character. Relevantly, a person of good character would, inter alia:  respect and abide by the law in Australia, be honest and financially responsible (for example, pay their taxes), not cause harm to others through conduct, not have evaded immigration control and be truthful and not practice deception or fraud in dealing with the Australian government.

14. In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of good character in citizenship applications:

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

    (emphasis added)

15. That then leaves the question of mitigating factors and/or whether the explanation provided by the applicant outweighs the behaviour in question. As stated in the Policy, the Tribunal is to weigh up certain factors, applying community standards.

16. Mitigating factors relevant to this matter include whether a person of good character would have behaved the way the applicant has; the amount of time that has lapsed since offending; whether the applicant has demonstrated that he can uphold and obey the law; whether he has accepted responsibility and shown remorse for his conduct; and any extenuating circumstances relating to the offences.

    CONSIDERATION

17. The respondent contends that the applicant does not satisfy paragraph 21(2)(h) of the Act because (i) of his prolonged criminal offending; (ii) his failure to be honest and truthful about his offending; and (iii) his lengthy period in Australia as an unlawful non-citizen and his failure to pay tax during that time.

    Criminal Conduct and Traffic Offences

18. The applicant has an extensive criminal history for driving offences spanning a period of approximately 14 years. In summary, he has been convicted of seven separate offences including three drink driving offences (middle range), three driving while disqualified and one offence of negligent driving (not occasioning death or grievous bodily harm). Most significantly, the applicant was sentenced on 15 April 2009, to a period of imprisonment for three months and on 19 July 2016, to a ten-month intensive correction order for his convictions of driving while disqualified. 

19. The applicant’s traffic record also includes numerous minor infractions such as speeding and disobeying traffic lights. Most recently, the applicant committed two traffic infringements on 14 May 2018 and 22 July 2018 for speeding and disobeying traffic lights. While the traffic offences do not constitute “serious offences”, they do demonstrate a history of disobeying road laws which go to the essential safety of the Australian community.

20. The applicant’s history of offending, particularly his repeated drink driving offences, is viewed very seriously. It is well known that driving while intoxicated can have catastrophic consequences, not only for the offender but for other road users. Fortunately, in this case, no such consequences eventuated. The applicant was 41 years old when he committed his first drink driving offence and 54 years old when he committed his most recent offence. The applicant claims that he drove while intoxicated because he “could not refuse the offer of drinks from older friends”. I find this a very poor excuse and it shows a severe lack of judgement and insight into his conduct.

21. The repeated nature and volume of the applicant’s offending is also a relevant factor as it demonstrates a blatant disregard for the laws of this country. The applicant has received numerous license cancellations, suspensions and warning letters, including a ‘habitual offence’ warning letter on 8 September 2016. Despite these warnings, the applicant has continued to offend. This is particularly stark having regard to the applicant’s offences after completing the Traffic Offenders Intervention Program in March 2016 and his most recent traffic infringements which occurred just over a year after the applicant’s intensive correction order ceased on 18 May 2017.

22. The applicant plainly fails to see the error of his ways and I am not satisfied that the applicant will abide by the laws of Australia in the future. His recent claims that he is now determined to be resolute regarding his drinking has not been satisfactorily tested in the community. The Citizenship Policy requires a decision maker to look holistically at the applicant’s behaviour over a lasting or enduring period of time. In this instance, given the repeated nature of the applicant’s offending, I am not satisfied that enough time has passed to establish a pattern of good behaviour to justify a conclusion that he is of good character. A reasonable amount of time has not passed since the applicant has been free of his intensive correction order and his recent offences.

    False Statements or Representations

23. The applicant made several false and incomplete character declarations in his Citizenship application. In completing the application, he made a declaration that the information he provided was “complete, truthful and correct in every detail”. Although he declared that he had been convicted of offences, he only disclosed “DUI-2^nd offence”. This is plainly inaccurate and fails to properly identify all seven of his offences. The applicant also failed to answer in the positive to questions related to his term of imprisonment and intensive correction order.

24. The applicant was not represented at the time he completed his Citizenship application and he claimed at hearing that his children may have helped him with filling out the application due to issues with English. No evidence has been provided from the applicant’s children to support this claim. The applicant also claimed at hearing that he provided a copy of his police record with the Citizenship application when it was lodged online but the document is not listed as supporting evidence attached to the application.

25. The applicant’s conduct regarding representations and statements made in his Citizenship application has not been completely honest. His conduct conceals several of his convictions and sentences. This is contrary to the characteristics of good character as set out in the Citizenship Policy.

    Unlawful Period in Australia and Non-payment of Taxes

26. Not evading immigration control, honesty and financial responsibility are relevant characteristics to be taken into consideration under the Citizenship Policy.

27. Departmental records indicate that the applicant has been unlawfully in Australia for five periods since arriving in Australia. The longest period of unlawfulness was from 6 November 2002 to 28 October 2008, approximately six years. During this period the applicant did not declare income or pay tax to avoid detection by immigration officials. In a statutory declaration dated 17 April 2018, the applicant stated:

    During the unlawful periods, please understand that we were living in constant fear of being deported. Therefore, it was difficult for us to declare our income, even though it was small, due to our concerns of our location being exposed to the  authorities.

28. The applicant’s failure to obey Australian law by remaining in Australia unlawfully and not paying income tax is a very serious matter. His failure to declare his income and pay taxes was intentional and a means to evade detection. While I acknowledge that the applicant’s periods of unlawfulness occurred many years ago, this factor still weighs against a finding of good character.

    Mitigating Factors

29. The applicant has attended on Dr Jung Sook Kim, a psychologist, on six occasions for treatment in relation to his drinking. He had four sessions in 2016 and two sessions in 2019. This demonstrates that the applicant has attempted to obtain treatment as a result of his alcohol related offences. In a report dated 21 February 2019, Dr Kim reports:

    The treatment aimed to assisting Mr Yoon to find effective mechanisms to cope with his stresses, other than alcohol. He was motivated and worked hard to achieve treatment goals. I found that his response to treatment was positive and showed self-control and increased awareness in relation to drinking and its consequences.

30. The applicant has also provided character references from Father James McCarthy, Geoffrey Berry and John Galicek in support of his claimed good character in these proceedings.

31. Father James McCarthy has provided a statutory declaration dated 27 February 2019 and a letter dated 29 November 2018. In both he speaks to the good character of the applicant and his wife. He advises that they have contributed their time and financial abilities to building up the church and the local community. These are all positive attributes and go toward a finding of good character, but I am not convinced that Father McCarthy understood the full extent and repeated nature of the applicant’s offending. Father McCarthy acknowledges the applicant’s traffic related offences, including his three-month period of imprisonment. However, he failed to identify the nature of the applicant’s repeated offending and states “I understand all the offences and convictions are only traffic related”. In addition, it appears that the applicant attempted to downplay the seriousness of his prison sentence by passing blame, as Father McCarthy states “Mr Yoon thinks that the jail sentence was given because he could not afford to engage a lawyer…”

32. Geoffrey Berry, an Emeritus Professor, has provided a statutory declaration dated 21 February 2019 and letters dated 14 March 2018 and 28 November 2018 in these proceedings. He states that he has known the applicant and his wife for eighteen years through his weekly work for him as a house cleaner. He states that the applicant is trustworthy, honest and hardworking. He acknowledges the applicant’s offending but again it appears that the applicant has tried to downplay his term of imprisonment and blames his lack of legal representation. Mr Berry states that the applicant said he “received an unusually harsh sentence”.

33. Dr John Galicek has provided a statutory declaration dated 22 February 2019 and letters dated 9 March 2018 and 29 November 2018 in these proceedings. He states that he has known the applicant for more than twenty years as his house cleaner. He describes the applicant as “honest, reliable, hard working and of good character”. Dr Galicek acknowledges the applicant’s offending but again it appears that the applicant has attempted to downplay his three-month term of imprisonment. Dr Galicek states, “he believes was a very harsh sentence rendered as a result of his not being able to engage a lawyer due to financial difficulties”.

34. In a letter dated 13 March 2018, Marilyn and Shelton Smith describe the applicant and his wife as honest and reliable.

35. None of the applicant’s character references appear to address or acknowledge the applicant’s periods of unlawfulness in Australia and his failure to pay tax during those periods.

36. The applicant has provided numerous documents relating to his care for animals. These go to the applicant’s good character as it shows compassion towards stray or injured wild animals. While the Citizenship Policy does not directly state these characteristics, I believe that this behaviour demonstrates good character.  

37. These mitigating factors all weigh in favour of a finding of good character. However, many good personal qualities can be outweighed by a single serious incident; see Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7]. In addition, limited weight is put on the applicant’s character references as I am not convinced that they were fully appraised of the repeated nature and seriousness of the applicant’s offending.

    DECISION

38. In considering all the relevant circumstances and weighing the available evidence before me, I am not persuaded to make a positive finding of good character for the applicant at this time. It follows that he does not satisfy paragraph 21(2)(h) of the Act. 

39. The applicant can make a fresh application for Australian citizenship in the future.

40. The decision under review is affirmed.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 16 July 2020

Date(s) of hearing:	9 July 2019
Advocate for the Applicant:	Strathfield Immigration Services of Australia
Solicitors for the Respondent:	Australian Government Solicitor