Yue Chen and Minister for Immigration and Citizenship - [2012] AATA 455

[2012] AATA 455

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/0075
Re	Yue Chen
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	J L Redfern, Senior Member
Date	19 July 2012
Place	Sydney

The decision under review is set aside and a decision substituted that the approval of Mr Yue Chen’s Australian citizenship is not cancelled.

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

J L Redfern, Senior Member

CATCHWORDS

CITIZENSHIP – Cancellation of approval of Australian citizenship by the Minister on grounds that Applicant is not of good character - alleged failure to provide information about separation before visa granted –false and misleading statements made in unrelated proceedings - decision under review set aside

LEGISLATION

Australian Citizenship Act 2007

Migration Act 1958
Crimes Act 1900 (NSW)

Oaths Act 1900 (NSW)

CASES

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Mlinar and the Minister for Immigration and Multicultural Affairs [1997] AATA 788
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Taylor and Minister for Immigration and Citizenship [2012] AATA 55

SECONDARY MATERIALS

Department of Immigration and Citizenship, Australian Citizenship Instructions, 2012

REASONS FOR DECISION

J L Redfern, Senior Member

19 July 2012

Mr Yue Chen lodged an application for citizenship with the Department of Immigration and Citizenship (the Department) on 24 February 2011, which was approved by the Minister for Immigration and Citizenship (the Minister) on 18 March 2011. He was invited to a citizenship ceremony on 19 May 2011 but was subsequently notified his ceremony was to be deferred pending consideration of whether the approval should be cancelled.
On 15 June 2011, Mr Chen was provided with a letter notifying him that the Department was considering cancellation of his approval on the basis that he was “not of good character”. Mr Chen responded to the letter, providing certain information, but on 2 December 2011 the Department notified Mr Chen that the Minister had refused his application for citizenship.
It is common ground that the letter dated 2 December 2011 was in error and that the decision of the Minister was to cancel Mr Chen’s approval of citizenship, not to refuse his application, on the grounds that he was not of good character.
There is little dispute about the facts in the case. The key issue for determination is whether the approval of Mr Chen’s citizenship should be cancelled having regard to be circumstances surrounding his application for a divorce in January 2008 and, in particular, whether this conduct warrants the cancellation of the approval.

THE RELEVANT LAW AND POLICY

Section 21(1) of the Australian Citizenship Act 2007 (the Act) provides that a person may make an application to the Minister to become an Australian citizen, known as “citizenship by conferral”. Section 21(2) sets out the general eligibility requirements and s 21(2)(h) requires the Minister to be satisfied that the person is of “good character”. Section 24(1) states that if a person makes such an application, “the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen”. Pursuant to s 25(2)(b), the Minister may cancel an approval if he is satisfied at the time he proposes to cancel the approval that the person “is not of good character”.
The term “good character” is not defined in the Act and as observed by Deputy President Handley in Taylor and Minister for Immigration and Citizenship [2012] AATA 55 the Tribunal, standing in the shoes of the decision-maker, must therefore be guided by the ordinary meaning of the words as interpreted by the courts.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 the Full Federal Court considered the meaning of the expression "good character" for the purposes of the migration legislation. Davies J (with whose reasons Nicholson J agreed) said (at p 425):

…the term ‘good character’ is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: see The Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5. Necessarily, when decisions are made in Australia under the Act in relation to persons who are overseas, greater attention tends to be given to objective facts and to reputation or repute rather than to a detailed analysis of the person’s inherent qualities. I do not suggest that, in the context, ‘good character’ refers to reputation and repute as such. It does not. But criminal convictions or the absence of them and character references are likely to be an important source of primary information. If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.

The Government has developed policy in the form of the Australian Citizenship Instructions (the ACI) to provide guidance to decision-makers. The introduction to the ACI states that their role is:
... to support the Australian Citizenship Act 2007. The instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers should be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers under the Act.
Decision-makers should generally apply policy such as the ACI unless the policy is unlawful or its application produces an unjust result in the circumstances of a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634.
The ACI specifies criteria for determining citizenship applications. Chapter 10 of the ACI relevantly provides as follows:
An applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record. However, general conduct and associations may also be relevant. If there is evidence to suggest that an applicant may not be of good character, the applicant should be given the opportunity to respond to this evidence. An applicant’s behaviour does not have to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour.
A list of factors to which consideration should be given in assessing good character is set out in Chapter 10 of the ACI. They include the seriousness of any offences of which the applicant has been convicted, whether the offence was a one-off occurrence or part of a pattern of ongoing behaviour, the length of time between the last offence and the application for citizenship, any extenuating circumstances relating to the offence committed and the applicant’s reputation in the community, as evidenced by character references.

THE EVIDENCE

Mr Chen is a citizen of the People's Republic of China. He was born in China in 1984 and travelled to Australia on 10 November 2001 on a student visa. He has resided in Australia since this time. Mr Chen met his former wife, Ms Tiantian Shi, while they were students at the Australian Institute of Commerce and Language. They became partners in March 2005, lived together after about a month and married in August 2005.
On 7 December 2006, Ms Shi applied to the Department for a Skilled - Independent Overseas Student (Residence) (Class DD) visa and included Mr Chen as a dependant. The visa was granted on 16 April 2007. It is not in dispute that the visa would not have been granted to Mr Chen but for the fact that it was accepted by the Department that he and Ms Shi were in a genuine spousal relationship at the time of the grant.
Ms Shi left Australia to travel to China on 28 July 2007 and did not return until January 2008, when she and Mr Chen made a joint application for the dissolution of their marriage.
Mr Chen and Ms Shi swore affidavits in family law proceedings that they had separated on 2 January 2007, even though they were still living in the same house until 28 July 2007. It is common ground that a friend and a neighbour of Mr Chen also signed affidavits to the effect that Mr Chen and Ms Shi had separated on 2 January 2007. The application and affidavits were filed with the Federal Magistrates Court by lawyers acting for Mr Chen and Ms Shi. Neither was required to appear at the hearing or to give evidence and on 5 April 2008 the Federal Magistrates Court made an order dissolving their marriage. Mr Chen was 23 years old at the time of the application.
According to a file note from the Department dated 25 March 2009, an officer of the Department telephoned Mr Chen about a query regarding Ms Shi’s qualifications. During this conversation, she became aware that Mr Chen and Ms Shi had divorced in January 2008. The file note records that the officer in question was concerned Mr Chen and Ms Shi had an agreement that Ms Shi would include Mr Chen in her application as her spouse but had applied for a divorce as soon as the visa was granted. The implication was that the arrangement was a sham for the purposes of Mr Chen obtaining a visa. The file note records that the matter was referred for investigation.
On 12 May 2010, Mr Chen was issued with a Notice of Intention to consider cancellation of his permanent visa by the Department. The notice stated that Mr Chen had not complied with s 104(1) of the Migration Act 1958, which required that the Department be notified of any relevant change in circumstances since the application for a visa had been lodged, because he had not advised the Department that he and Ms Shi had separated on 2 January 2007. Mr Chen provided two statutory declarations to the Department in response to this notice, the first dated 4 June 2010 and the second dated 29 July 2010.
In the statutory declaration of 4 June 2010, Mr Chen referred to the divorce proceedings and made the following statement:
On 14 January 2008, she [Ms Shi] came back and we went to see our lawyers to divorce. To our surprise, the lawyer told as we couldn't get a divorce because we still lived together till July 2007. The lawyers said the only way to get a divorce was to sign an affidavit stating that we lived in the same house but in separate rooms. We remembered that we had a fight on 2nd of January 2007, and she did move to another room for 3 weeks, after this she did move to another room a few times when we argued. We stated that we were separate permanently since that time, which was not exactly true. We knew that there was no chance for us to be together again in the future, because we would be living in different countries. She told me she would not come back to Australia again. I felt this is my only chance to get a divorce from her. Otherwise if I didn't divorce then, she would become a free person in China, she could find a boyfriend again and get married, because no one knows what she did in Australia and Australia cannot control her in China, but I would hold a marriage certificate forever, I will not be allowed to create a new family, because I will live in Australian not China. I do know much about family law, because Australia has a different culture from China, in China the people can get divorced easily by just signing an agreement, they don't need to wait 12 months. So we both signed the application form without knowing what the legal effects are. I feel very sorry about what I have done on my understanding of the Australian law.
Mr Chen expanded on this statement in his second statutory declaration and stated that he told their lawyer he and Ms Shi had been separated since 2 January 2007 even though they were still together at that time.
Mr Chen's permanent visa was cancelled on 4 November 2010 on the basis that he had failed to notify the Department of his change in circumstances. The change in circumstances was said to be the fact that he and Ms Shi had separated from 2 January 2007, prior to the grant of the visa.
Mr Chen lodged an application for a review of this decision to the Migration Review Tribunal and on 3 February 2010, the Tribunal set aside the decision to cancel Mr Chen's permanent visa. The Tribunal noted that the issue for determination was whether Mr Chen’s relationship with Ms Shi “existed by April 2007 or whether there was a change in circumstances of which he was obliged to inform DIAC”. The Tribunal considered all the available evidence and concluded that it could not be satisfied Mr Chen and Ms Shi’s relationship broke down in January 2007 and therefore could not be satisfied Mr Chen had been “untruthful in his dealings with DIAC”. The Tribunal expressed concern Mr Chen had provided false information to the Federal Magistrates Court and had encouraged friends to also do so and stated that this was a “serious matter”.
Mr Chen lodged an application for citizenship with the Department on 24 February 2011 and the application was approved by the Minister on 18 March 2011. Mr Chen was subsequently invited to a citizenship ceremony to make his Australian Citizenship pledge but was telephoned prior to the ceremony and advised this was to be postponed pending consideration by the Department of the cancellation of his approval.
By letter dated 15 June 2011, the Department notified Mr Chen that it was considering the cancellation of the approval of citizenship on the basis that he was “not of good character”. In particular the Department identified, as evidence of his adverse character, the provision of “false or misleading information” to the Department in a statutory declaration in order to secure the grant of a permanent visa. The letter stated that Mr Chen had provided inconsistent statutory declarations in that his statutory declaration of 4 June 2010 stated he was still in a spousal relationship with Ms Shi but the statutory declaration of 29 July 2010 declared he had separated from Ms Shi on 2 January 2007.
During the hearing, it was conceded by the representative for the Minister that these particulars were confusing and were not supported by a proper reading of the statutory declarations as both stated that Mr Chen and Ms Shi were not separated until after 2 January 2007. Mr Chen responded by letter dated 1 July 2011 that the statutory declarations were not in conflict as both confirmed he had wrongly identified the date of separation as 2 January 2007. He apologised for the error.
On 2 December 2011, the Department notified Mr Chen that his application for citizenship lodged on 24 February 2011 had been refused. The representative for the Minister agreed this letter was incorrect in a number of respects. First, it noted that Mr Chen's application for citizenship had been refused. This was not the case. His application had been approved but this approval was now being cancelled. In the reasons for the decision s 25(2) (b) of the Act was properly identified as the basis for the decision. Secondly, it was noted that the Department had considered Mr Chen's application and assessed that he did not meet the good character requirement due to his criminal history. Mr Chen did not have a criminal history at that time other than the allegation he had provided false information in relation to his application for a divorce. The delegate concluded Mr Chen was not of good character on the basis he had concealed the fact that he had separated from his spouse in January 2007 and the false information was contained in the statutory declarations of 4 June 2010, which was said to be inconsistent with his statutory declaration of 29 July 2010.
Mr Chen was cross examined by the representative of the Minister and questioned by the Tribunal. He said that the evidence set out in his statutory declaration of 4 June 2010, as expanded in his declaration of 29 July 2010, was correct. The information provided to the Federal Magistrates Court was false and he regretted this, given what he now understands to be the seriousness of the matter. At the time he made the statement in January 2008, he was under pressure for the divorce to proceed as Ms Shi was returning to China and said she would not be returning to Australia. He thought this would be his only opportunity to obtain a divorce and did not know, as he was subsequently advised by his current lawyer, that he could have proceeded at a later date in any event by serving Ms Shi outside the jurisdiction. He did not understand that what he was doing was an offence, although he knew it was wrong. He denied that this was the type of conduct he regularly engaged in. It was a “one off” matter that was driven by his circumstances at the time – he was under pressure and emotional stress. Mr Chen said did not appreciate the seriousness of swearing the affidavit at the time and would not do this again. He was not required to appear in court or give evidence in 2008 so signing the document seemed less serious. When asked whether he would have given false evidence if he had been required to appear in the Federal Magistrate’s Court, Mr Chen said he did not think he would have done this. Mr Chen was careful and considered when he answered this question and his response appeared to be frank.
There was evidence, which was not disputed, that Mr Chen has been operating a Coffee Club franchise at Rhodes since 1 November 2010, which employs staff and has a turnover of over one million dollars. Prior to that he was operating his own courier business, which he subsequently sold. Mr Chen remarried in 2009 and his wife is five months pregnant. Mr Chen loves Australia and wants to be an Australian citizen. This is his life and has been for the past 12 years.
Mr Chen provided character references from friends who had known him over the past two or three years and from his accountant. With the exception of Mr Cheng Zhang, being an officer of the Australian Federal Police who had known Mr Chen for that past two years, the referees did not refer to the dispute with the Department. Mr Zhang said he had “full knowledge of the dispute” and considered Mr Chen to be a “valued and trusted friend”. Other friends stated he was “dependable, reliable and hardworking”, a “standout”, “hardworking and trustworthy” and “one of the best people I have ever met”. His accountant stated Mr Chen is a “decent and responsible person with high professional integrity”.

SUBMSSIONS

Mr Chen submitted that the Minister had formed the view he was of good character when he approved his application for citizenship in March 2011. At that stage, all relevant information was known to the Minister, including the decision of the Migration Review Tribunal and information provided by Mr Chen in his statutory declarations. Notwithstanding this, the Minister had approved his application. There was no new adverse information relied on and the finding that these two statutory declarations were inconsistent was wrong. The Tribunal should have regard to the Minister's original finding of good character.
Mr Chen admitted he had given false information to the Federal Magistrates Court about his separation from Ms Shi and also admitted he asked his friends to support his false statement. He knew this was wrong but did not appreciate the seriousness or that making the statement was an offence. He was under emotional stress and was young at the time. He regretted his action and has been full and frank about his mistake. His conduct was an isolated incident over four years ago in what is otherwise an unblemished record. Mr Chen said he would not do this again, it was not part of his character to make false statements for gain or convenience, and the Tribunal could be satisfied this would not be repeated.

If the Tribunal was the view that Mr Chen was not of good character, it was submitted that cancellation of the approval of citizenship is discretionary and in the circumstances of this case, the approval should not be cancelled. The decision of the Minister should be set aside.
The Minister submitted that, notwithstanding the approval at a time when all key information was known to the Department, it is open to the Tribunal to form a view that Mr Chen was “not of good character” based on his admission that he had provided false information to the Federal Magistrates Court. As stated in Mlinar and the Minister for Immigration and Multicultural Affairs [1997] AATA 788 at [17] “the standard of good character should be even higher for citizenship cases.... because of the importance of citizenship and the greater responsibilities and privileges attached to it”.
Even though Mr Chen had not been charged and/or convicted of any offence, he had admitted to making a false statement, which was in breach of s 13 (2) of the Oaths Act 1900 (NSW). Under s 327 of the Crimes Act 1900 (NSW) a person who makes a false statement concerning any matter which is material to a proceeding, knowing the statement to be false, is guilty of perjury and liable to imprisonment for 10 years. The misstatement by Mr Chen was therefore a serious matter, as recognised by the Migration Review Tribunal. Given these matters, the Tribunal should find that Mr Chen was not of good character. Little weight should be given to the character references provided to the Tribunal as it was not clear that the witnesses had knowledge of his offending conduct when they gave the references. While the Minister recognised Mr Chen had lived in Australia for 12 years and was operating a business and employed staff, which was a benefit to the Australian community, the offence was so serious that the Tribunal should not exercise the discretion in his favour. The decision of the Minister should be affirmed.

CONSIDERATION

The question for determination is whether or not I am satisfied, based on the information before me, that Mr Chen is “not of good character”. If I am so satisfied, the question arises as to how I should exercise the discretion pursuant to s 25(2) (b) of the Act. It is common ground that that the time for this assessment is the time of my decision. I also accept that this is a merits review and the fact there was no new adverse information available to the Minister between the time of the approval and the time of the cancellation is not relevant to my consideration of whether or not I am satisfied Mr Chen is “not of good character”, although this may be relevant to the exercise of discretion.
Mr Chen admits he made a false statement in January 2008 to the Federal Magistrates Court in order to obtain his divorce. He also asked friends to support his statement. He knew this was wrong and I accept that this misconduct was serious. Providing false information to a court undermines the integrity of our legal system and the seriousness is reflected in the potential penalties for breach. I also accept that the privilege of citizenship warrants a high standard of conduct.
The ACI recognises that there is a presumption of good character unless there is evidence to the contrary. According to the ACI, a serious criminal record would be evidence that a person is not of good character. Mr Chen does not have a criminal record but he has admitted to a breach of the law. He has not been prosecuted for this offence but this is not of itself determinative of the issue or the seriousness of the breach. The Tribunal can form a view about Mr Chen’s character based on the objective facts about this misconduct, which are not in dispute. In forming a view about Mr Chen’s character, I should have regard to his prior misconduct, the seriousness of his misconduct, his conduct since the offending, whether there were extenuating circumstances that gave rise to the misconduct and his reputation in the community.
Mr Chen’s previous misconduct was serious but it is relevant to consider the context of his offending to understand the nature and extent of his misconduct. Mr Chen was still relatively young and inexperienced at the time he applied for his divorce. He thought, wrongly, that this was his only opportunity to obtain a divorce given Ms Shi no longer intended to live in Australia. By January 2008 he considered their marriage was over but was concerned there was no incentive for Ms Shi to obtain a divorce having regard to what he stated to be the different law and culture in China in relation to marriage. He rationalised his statement in the divorce proceedings as a half-truth because he and Ms Shi had a number of fights after 2 January 2007. This does not excuse the false statement about the time of separation as Mr Chen clearly knew it was wrong to make the statement. He knew that the Federal Magistrates Court would rely on his statements to grant a divorce.
The Minister's representative characterised this as conduct which demonstrated Mr Chen was willing to make false statements to suit his purposes. This was certainly the case at the time but these events were over four years ago. Mr Chen said he regrets his conduct and did not understand the seriousness of the matter or that it was an offence. I accept this evidence. Mr Chen signed the affidavits in the office of his lawyer, was not required to attend the court or to give evidence and was still young and inexperienced on matters relating to the law. It may have been a different matter if Mr Chen had wilfully given false evidence before the Federal Magistrate. In my view, this would have been more serious. I also accept the submission that this was a “one-off” incident explained, although not excused, by the pressure of the situation, emotional strain and his inexperience.
There is no evidence Mr Chen has repeated this misconduct, or misconduct of a similar nature, and I note his accountant is of the view Mr Chen is a person of "high professional integrity".
While I accept Mr Chen’s referees do not refer to his previous misconduct and would carry more weight as evidence of his good character if they had done so, the character references nevertheless show that Mr Chen is regarded highly by close friends and associates. It is also impressive that Mr Chen is operating a significant business, employing many staff at such a young age. While this is not of itself evidence of good character it demonstrates Mr Chen is hard working and is making a contribution to the Australian community, which is one aspect of character.
As noted in the ACI, a person's behaviour does not have to be “faultless but the aggregation of their qualities must be weighed against ordinary community standards”. There is no dispute that in the past Mr Chen has not been faultless. However, in weighing up the seriousness of his misconduct, the context in which he made the misstatement, the one-off nature of the misconduct and the length of time that has passed without evidence of further breach and evidence of his current good character, I am not satisfied that Mr Chen is “not of good character”. When the objective facts are assessed, it is clear that Mr Chen made a serious error of judgement at a time when he was young and under pressure. This has not been repeated and since that time he has contributed to the Australian community and is apparently highly regarded by friends and associates.
Given my conclusion about Mr Chen’s character, it is not necessary for me to consider the exercise of discretion. I therefore set aside the decision of the Minister and substitute a decision that the approval of Mr Yue Chen’s Australian citizenship is not cancelled.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of J L Redfern.

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Associate

Dated 19 July 2012

Date of hearing	12 July 2012
Solicitors for the Applicant	Jia Li, Parish Patience Immigration Lawyers
Respondent	In person