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

[2022] AATA 850

Zhang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 850 (20 April 2022)

Division:GENERAL DIVISION

File Number(s):      2019/2865

Re:Bingkun Zhang

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R West

Date:20 April 2022  

Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that the Applicant satisfies section 21(4)(f) of the Australian Citizenship Act 2007 (Cth).

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

Member R West

Catchwords

CITIZENSHIP BY CONFERRAL – application for citizenship by conferral – refusal of citizenship – character test – alleged past criminal conduct – enduring moral qualities – decision set aside and remitted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

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

Minister for Home Affairs v G (2019) 266 FCR 569

Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326

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

Secondary Materials

Citizenship Statement – CPI 15 Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Member R West

20 April 2022

INTRODUCTION

1. This matter concerns an application for the review of a decision of the delegate of the Minister for Home Affairs (Delegate), made on 1 May 2019, to refuse an application for citizenship by conferral, because the Delegate was not satisfied that the Applicant is of good character for the purpose of s 21(4)(f) of the Australian Citizenship Act 2007 (Cth) (Act).

   BACKGROUND

2. The Applicant was born in Qishan, China in 1948.

3. He arrived in Australia on 14 October 2010.  He is currently the holder of a subclass 155 (Resident Return) visa granted on 8 May 2018.[1]

   [1] T2.

4. On 29 July 2016 the Applicant applied for Australian citizenship by conferral (Application).[2]

   [2] T5.

5. On 1 May 2019, the Delegate refused the Application on the basis that the Delegate was not satisfied that the Applicant met the good character requirement under s 21(4)(f) of the Act (Decision).[3] 

   [3] T2.

6. On 24 May 2019 the Applicant applied for review of the Decision in accordance with

   
   

   s 52(1)(b) of the Act.[4]

   [4] T1.

   HEARING

7. A hearing of the review was conducted on 1 and 2 March 2022. The Applicant was represented by his daughter, Ms Lifang Zhang and the Respondent by Ms Eleanor Cannon, a solicitor with Clayton Utz.

8. In conducting the review, the Tribunal has had regard to:

   (a)the documents produced to the Tribunal by the Respondent pursuant to ss 37 and 38AA of the Administration Appeals Tribunal Act 1975 (Cth) (AAT Act) (T Documents);

   (b)the oral evidence of:

   (i)the Applicant; and

   (ii)Ms Lifang Zhang;

   (c)documents tendered by the parties and listed as exhibits in Appendix A.

   LEGISLATION

9. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Sections 21(2) – (8) set out the general eligibility criteria.  For an applicant who is over 60 years of age at the time the application for citizenship was made, such as the Applicant in this case, the criteria are set out in s 21(4).  These criteria include that, under s 21(4)(f), the Minister must be satisfied that the person is of good character at the time of the Minister’s decision on the application.

10. Section 24(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless the person meets the eligibility requirements in s 21(2)–(8).

11. The term “good character” is not defined in the Act, but it is addressed in some detail in the Citizenship Statement – CPI 15 Assessing Good Character under the Citizenship Act as reissued by the Department on 26 February 2021 (CPI 15).

    EVIDENCE

    Evidence Relied on by the Delegate

12. In making the Decision, the Delegate had regard to an Interpol Red Notice issued in respect of the Applicant on 29 June 2015[5] (Red Notice) and to the Applicant’s responses to procedural fairness letters from the Respondent regarding the Red Notice. The delegate also relied on the Applicant’s failure to provide a Notary Certificate of No Criminal Convictions from the People’s Republic of China.

    [5] T4.

13. The Red Notice[6] stated that the Applicant was wanted for prosecution in China for corruption under Articles 382 and 383 of the Criminal Law of the People’s Republic of China, for which the maximum penalty was 10 years’ imprisonment. The summary of the facts provided in the Red Notice was:

    In 1995, Hubei Jianchang Machine Plant (state owned) decided to set up an office in Beijing. ZHANG Bingkun, as the then Director of Planning Section, was designated to deal with this matter. ZHANG Bingkun got RMB 500,000 Yuan from the company for the purpose of purchasing house and vehicle for the office in Beijing. However, he didn't hand over the house and vehicle to the Hubei Jianchang Plant. He kept them for himself. In July 2005, the Hubei Jianchang Machine Plant went into bankruptcy, the liquidator asked ZHANG Bingkun to return the house and vehicle, or 500 thousand RMB, but ZHANG refused again. In order to permanently encroach on the state property, in May 2011, Zhang Bingkun changed the original house purchase contact, and the buyer name has been changed from ZHANG Bingkun and his sister-in-law CUI Huizhi into CUI Huizhi only. The premises permit of the house changed to be under the name of CUI Huizhi. Zhang's act is suspicious of corruption crime.

    [6] By letter to the Tribunal dated 1 March 2022, the Respondent sought orders pursuant to s 35(4) of the AAT Act for non-disclosure of parts of the Red Notice. After hearing oral submissions from the Respondent, the Tribunal refused to grant the orders sought for the reasons stated on the transcript.

14. The Delegate sought the Applicant’s response to the Red Notice and requested that he provide a Notary Certificate of No Criminal Convictions from the People’s Republic of China by letter dated 2 December 2016 and re-issued on 14 March 2017.  The Applicant’s position was that he had already submitted a "Certificate of no Criminal Record" based on the period I was in Mainland China when I entered Australia in 2012. I have not left Australia since 2012.

15. Following some delay due to the Applicant’s attempts to appoint representatives, the Applicant responded on 30 May 2017. The Delegate noted the substance of this response as follows:

    …the Department received a letter from you outlining the fact that you had submitted a complaint to China’s Procuratorate in Xiangyang City, Hubei Province, and had appointed Mr Chan[7]  to assist you with your citizenship application. You stated in the letter that you intended to travel to China in June 2017 in order to resolve the matter. You stated that you had lodged an application for a Resident Return visa on 11 April 2017, and that you had been advised that it could take several months for the decision to be made on that application.[8]

    [7] A migration agent.

    [8] The Applicant was granted a Resident Return visa on 8 May 2018.

16. On 2 January 2019, the Applicant was sent a follow-up request as no further information had been received in relation to the request for further information sent on 14 March 2017.

17. On 7 February 2019, the Applicant’s daughter sent an email to the Department stating that the Applicant had been advised by Mr Chan not to return to China and that more documents would be submitted in the near future.

18. On 7 February 2019, a departmental officer responded to the email and advised that while the issue regarding the Red Notice remained unresolved, and in the absence of a penal clearance from China, the delegate would not be able to be satisfied that the Applicant met the good character requirement. The email requested an update on the status of the Applicant’s application for a Notary Certificate of No Criminal Convictions from the People’s Republic of China.

19. On 11 February 2019, the Applicant’s daughter replied to that email, stating that Mr Chan would submit more information soon.

20. Mr Chan requested an extension of time to provide further documents on 4 February 2019. That request was approved on 9 February 2019 and notification was sent to Mr Chan. But no further information was received in relation to the follow-up request sent on 2 January 2019.

21. As the timeframe to respond had passed, the Delegate concluded on 13 May 2019:

    The information contained within the Interpol Red notice raises questions regarding your character. In the absence of evidence that refutes this information, including a Notary Certificate of No Criminal Convictions from the People’s Republic of China, I cannot be satisfied that you are of good character as required by paragraph 21(4)(f) of the Act.

22. The issue of the Notary Certificate of No Criminal Convictions from the People’s Republic of China was resolved at the outset of the hearing.  The Respondent informed the Tribunal that it had made its own inquiries and tendered a copy of a Notary Certificate of No Criminal Convictions from the People’s Republic of China, confirming that the Applicant had no criminal record in China before he departed in 2012.[9]

    [9] Exhibit R1.

23. Accordingly, the sole basis for the Respondent’s assertion that the Tribunal should not be satisfied as to the Applicant’s good character rested on the existence of the Red Notice and the Applicant’s responses to it.

    The Applicant

24. The Applicant provided three written statements dated 2 January 2019,[10] 2 August 2019[11]  and 24 October 2019[12], and gave oral evidence to the Tribunal.[13]

    [10] Exhibit A1, pp. 22–23 – comprising an original statement in Mandarin and an English translation.

    [11] Exhibit A7 – comprising an original statement in Mandarin and an English translation

    [12] Exhibit A5 – comprising an original statement in Mandarin and an English translation.

    [13] The Applicant gave evidence with the assistance of a Mandarin interpreter.

25. The original statements of 2 January 2019 and 2 August 2019 were written by the Applicant in his native Mandarin and translations of the statements in English were also provided.  The translations were made by the Applicant’s daughter, Lifang Zhang.[14]  The translation of the 24 October 2019 statement was made by an independent translation service.

    [14] In an email to the Registry dated 20 September 2019, Ms Zhang stated that she did the translation herself because she thought she understood the case better than a translator and because she was worried about her father’s privacy.

26. The Respondent asserted that the English version of documents relied on by the Applicant which had been translated by Ms Zhang, including the statements of 2 January 2019 and 2 August 2019, should be given limited weight because Ms Zhang is not an accredited and independent translator. Ms Zhang explained that the Applicant had relied on her translations for two reasons.  Firstly, she was competent in English and Mandarin, having been educated in Singapore and holding a PhD and, secondly, because the cost of accredited translation services was high.  The Respondent conceded that it had not had Ms Zhang’s translations independently assessed, and therefore could not say objectively whether they were inaccurate in any respect.  In addition, the Respondent had the opportunity to cross-examine the Applicant and Ms Zhang regarding the documents. Having regard to these matters, the Tribunal accepted the translations into evidence but acknowledged that it should exercise caution in relying on them.

27. In the Applicant’s statement of 2 January 2019, the Applicant provided a response to the allegation of corruption contained in the Red Notice.  His explanation was:

    In 1992, I was an employee of Jianchang Machinery Plant in Xiangyang city, Hubei province, China. My job title was the division director of the Planning department. The manager of Jianchang is Shizong Zhang. I was assigned to work in China Tobacco Machinery Company (belongs to national second-class enterprise) in Beijing this year. I worked as a borrowed employee and received no benefits such as salary, insurance, etc. from China Tobacco Machinery Company. From 1992 to 1995, I lived alone in a tiny room less than 10 square meters in a hostel. I could only visit my family in Xiangyang city once in a year during the Spring Festival. My wife was working and taking care of the elderly and two children.

    In the Spring Festival of 1995, I proposed to the factory manager, Shizong Zhang, to return to work in the plant. Shizong Zhang said the plant was facing difficulties and he asked me to stay in Beijing for the benefits of the plant and he encouraged me to bear the burden. Then he proposed to give me a home in Beijing and arrange my wife, who was also an employee of Jianchang, to live with me later. He promised to give me 40,000 yuan and told me that he would discuss with China Tobacco Machinery Company about the procedure for withdrawing the money. Later, after I checked the price of apartments in Beijing, I told Shizong Zhang that 40,000 yuan was really insufficient to buy an apartment within the third ring of Beijing and he agreed to increase 10,000 yuan.[15]

    Shizong Zhang always told me that this money was settling-in allowance for me. I don’t know and I didn’t ask how he recorded the money in the plant and how he talked with China Tobacco Machinery Company about withdrawing. The officials of China’s Procuratorate in Xiangyang City accused me of borrowing money from China Tobacco Machinery Company in the name of Jianchang Machinery Plant, but the fact is I have no right to do so because I am not a legal representative of Jianchang or a person in charge of financial affairs for Jianchang, and I’m also not employed by China Tobacco Machinery Company. Speaking of evidence, I have never written a borrowing receipt. On the other hand, China Tobacco Machinery Company has never requested me to return the money.

    I was informed by the accountant in China Tobacco Machinery Company to withdraw the money, first time 400,000 yuan and then 100,000 yuan. I spent the 500,000 yuan on an apartment (around 310,000 yuan) in Daxing District in Beijing and a Volkswagen Santana car (around 180,000).

    In the 16 years from 1995 to 2001[16]  (the year JianChang went bankruptcy), no one has ever said that the apartment was the Beijing liaison office of Jianchang. There is no formal document to prove that Jianchang has set up an office in Beijing and there is no staff arrangement for the office. This is totally a lie. What’s more, I covered all the expenses for the apartment and the car during the 16 years. Assume I knew the apartment and the car were the properties of Jianchang, why shouldn’t I ask Jianchang to pay for the expenses?

    In 2001,[17] the bankruptcy liquidation team of Jianchang asked me to hand in 500,000 yuan with simply a note written by Shizong Zhang, which says 500,000 yuan used to set up Beijing office of Jianchang. The truth is Shizong Zhang set me up and it is difficult for me to justify myself. I requested to confront with Shizong Zhang in front of the liquidation team, they refused. I listed all the expenses I spent on the apartment and the car during the 16 years, including renovation, utility fee, maintenance fee and insurance fee, etc., which is about 160,000 yuan, and asked if they can return me this amount of money but they refused to answer. They chased me for the money but I didn’t compromise because I know they are not doing the right thing.

    On 11 Jan 2012, my second daughter gave birth in Singapore and hurt her spine during labor. My wife was with her but she said to me they needed more help. So I went to Singapore. I didn’t expect that the bankruptcy liquidation team of Jianchang and the China's Procuratorate in Xiangyang City, defined this as escaping.

    [15] The Applicant confirmed in his oral evidence that the reference to 40,000 and 10,000 yuan in this part of his statement should be taken as a reference to 400,000 and 100,000 yuan respectively.

    [16] In his oral evidence, the Applicant confirmed that this should be 2010.

    [17] As above.

28. In his statement of 2 August 2019, the Applicant set out the steps he had taken to try to address the charges referred to in the Red Notice:

    (a)He claimed to be a victim of the so called “anti-corruption” movement in mainland China. He said the claim against him should have been a civil case but the leaders in Xiangyang city, Hubei province, China, made it a criminal case so that they could use it to show their “anti-corruption” results to the high-level leaders.

    (b)He claimed that over the previous four years he had appealed to several Chinese officials of different titles in Xiangyang city and had tried to defend himself against the charges.

    (c)He said that in November 2016 and March 2017, he met face-to-face in Australia with the deputy chief procurator and his deputy from China's Procuratorate in Xiangyang City. He said they promised him that they would end the case because of a lack of evidence of corruption and all he needed to do was to return to China to do some paperwork.

    (d)He said that, at first, he agreed to go to China, but he was advised that it would be dangerous for him to do so and his application for Resident Return Visa had not been approved at that stage, so he decided to remain in Australia. He said that his wife received a threatening message from a Chinese official as a result.

    (e)He said that, at the time his Resident Return Visa was approved, his case had been transferred to the National Supervisory Commission in Xiangyang city.  He said he spoke to the leader in charge of his case, and asked to discuss the case with a focus on ending it with “non-prosecution for doubt”, as previously promised.  The leader refused to discuss it and the Applicant and his family received further threatening messages.

    (f)He said that at the end of 2018 and the beginning of 2019 he went to the Consulate-General of the People's Republic of China in Melbourne and submitted a surrender letter, not as an admission of guilt, but in the hope of raising their attention and having the case re-examined quickly. He said he requested that his case be referred to the relevant law enforcement organisations in Beijing but received no news from the Consulate.

    (g)At the suggestion of the Consulate, he wrote to a high-level officer of the National Supervisory Commission in Xiangyang City, Hubei Province, who was also a member of the Standing Committee of the Political Bureau of the CPC Central Committee and asked him to judge his case based on his professional knowledge and rule of law. The official refused to discuss the case but sent three short letters full of threaten language to force [him] to confess guilty and return to China immediately.

29. In his statement of 24 October 2019, the Applicant addressed the Red Notice and asserted:

    I have been framed by law enforcement in Xiangyang City, Hubei Province, China. The following facts prove my innocence:

    a) The "Wanted Notice" issued by Hubei Province of China for me in 2015 completely violates the provisions on the jurisdiction of criminal cases in China. The production of this Red Notice itself violates the relevant provisions of Chinese laws and is itself an illegal document. This is a fact which can be concluded by just performing a search online. I believe the Immigration Officer did not do this.

    b) The content of the case overview in the "Wanted Notice" issued by Hubei Province, China in 2015 was rejected in the government documents sent to me by two staff members of the Xiangyang Municipal Supervisory Committee of Hubei Province in 2016. That is to say, the content of the case in the " Wanted Notice" of 2015 is untrue. If the Department of Immigration requires me to provide relevant Chinese government documents (photocopies) for 2016, I can do so.

1. The Applicant went on in the statement to assert that he had:

   …used various channels and methods to claim my innocence and disclose the fact that I was framed. However, through long-term communication with many investigators in Xiangyang City, Hubei Province, I have helplessly realised the fact that they were arbitrary in enforcing the law, were full of lies and that it is impossible to have my innocence restored. In September last year, I submitted my "Request" to the Supreme People's Procuratorate and the Chinese Supreme People's Court respectively through the Chinese Consulate General in Melbourne. One year has passed and I have not received a reply from either. On 26 September this year, I contacted the Chinese Consulate General in Melbourne again and have still not received a reply.

2. The Applicant gave evidence with the assistance of a Mandarin interpreter.  He confirmed that he spoke almost no English.  In giving his evidence, he was forthright and direct.

3. His oral evidence was generally consistent with his written statements.  He added in his oral evidence that:

   (a)he purchased the property in Beijing in the name of his sister-in-law, who was named on the certificate of title from the outset, because she was legally a resident of Beijing and he was not;

   (b)the property was a very basic apartment on the outskirts of Beijing;

   (c)the 500,000 yuan he received to purchase the Beijing property and car was loaned to his employer Jianchang Machinery Plant by the China Tobacco Machinery Company to which he was seconded and was repaid by his employer in three instalments from its operating funds;

   (d)he was unsure of the basis of the payment of 500,000 yuan to him by his employer, other than that it was given to him for the purpose of enabling him to live and work in Beijing;

   (e)his salary was a few hundred yuan per month and did not exceed 1,000 yuan per month during his secondment in Beijing;

   (f)the payment of 500,000 yuan to him was not documented;

   (g)he was advised not to return to China by an immigration officer, Mr Hooper, in 2016 when his return visa had not been approved and that he later formed the view that an offer to return to China to close his file was a trap to lure him back to China; and

   (h)he was willing to return to China to face the charges in the Red Notice if he could be sure he would receive a fair trial.

4. The Respondent tendered a letter from the Chinese Department of International Cooperation dated 29 September 2021, confirming that the Applicant remains a suspect wanted in China and the subject of a local criminal investigation and stating that the local court had issued a confiscation ruling against all his illegal proceeds.[18]  The Applicant stated that he was unaware of the confiscation ruling or of any other legal action against him in China, but conceded that proceedings may have been taken against him in absentia.

   [18] Exhibit R2.

5. The Applicant spoke generally about his good character and described himself in the following terms:

   I am 71 years old and I’ve been running a milkbar in Australia since 2015. I’m very thankful for Australia. I make a living by hardworking and am making contributions by paying taxes to the government and fulfilling the obligations of a resident.[19]

   [19] Exhibit A1, p.5.

6. He said that he had no criminal record in China prior to his departure in 2012, nor in Australia since his arrival.  He said that he had worked himself up to a middle management position from the factory floor and had been a loyal employee of Jianchang Machinery Plant and of the China Tobacco Machinery Company for many years until his retirement in 2010.  He said he had worked hard to support his family.  He said that since arriving in Australia, he had started a milk bar business and supported himself.  He said that he was well-respected in the community and referred to the letters of support he had received from his customers.

7. The Applicant’s daughter Lifang Zhang provided a statement dated 12 February 2019[20]  and gave evidence at the hearing. 

   [20] Exhibit A4.

8. Ms Zhang stated that the Applicant’s failure to respond to the requests for information from the Respondent was due to the inaction of the migration agent, Mr Chan.  She said that it was not until the Applicant received the rejection letter from the Respondent that she realised that the migration agent had not submitted the documents they had provided to him.

9. She said that she was not clear on what happened in China, but she confirmed that her father had tried to resolve the issues.  She stated that her father has a strong personality and has resisted pressure from Chinese officials to admit guilt in relation to the charges against him. She also described the Applicant as hard working and diligent in the conduct of his milk bar business since 2015. She said her father was a role model to her as he didn’t compromise on his principles. She said that he had a family comprising his wife and two daughters in Australia and was well regarded in the community.

10. After the conclusion of the hearing, the Applicant was given leave to lodge an original and authorised translation of a further document upon which he wished to rely.  The Applicant subsequently lodged a document purporting to be minutes of a meeting of the Xiangyang Municipal Party Committee’s Leading Group for Anti-corruption Fugitive Repatriation and Asset Recovery on 15 July 2016 (Minutes) which the Applicant claimed were provided to him by a Chinese official when they met in November 2016. The Minutes were accompanied by a further statement by the Applicant.  The Respondent did not object to the Tribunal having regard to the Minutes but asserted that they should be given limited weight. The Respondent objected to the Tribunal having regard to the Applicant’s statement on the basis that it sought to introduce further evidence following the close of the case.

11. Having reviewed the translation of the Minutes the Tribunal is satisfied that it does not provide any material assistance to the Tribunal in determining the issues before it.  The Tribunal agrees with the submission of the Respondent regarding the Applicant’s further statement and it has not had regard to it.

    Character Evidence

12. The Applicant provided:

    (a)A letter of reference dated 14 February 2019 from his neighbour Athanasia Tzovla[21],  who stated that he had known the Applicant for more than three years and said he was a friendly person who was always willing to provide help to his neighbours.

    (b)A letter of reference dated 15 February 2019 from his neighbour Macro Nigro,[22]  who stated that the Applicant was a diligent person who always kept the milk bar he operates clean and organised.  He recounted how the Applicant had pursued a prosecution against a group of teenagers who had stolen from him because the Applicant believes in enforcing the law.

    [21] Exhibit A2.

    [22] Exhibit A3.

    RESPONDENT’S SUBMISSION

13. The Respondent’s assertion that the Applicant is not of good character essentially rests on the existence of the Red Notice and the allegations contained in it.

14. First, the Respondent asserts that the Tribunal should place considerable weight on the fact that the Chinese authorities have issued a warrant for the Applicant’s arrest in relation to serious corruption charges.  Secondly, it asserts that the Applicant has made limited efforts to face those allegations, and that by maintaining his innocence the Applicant has not shown remorse.

15. In the Respondent’s written submissions, the allegations against the Applicant in the Red Notice were characterised as being akin to fraud.  When pressed by the Tribunal, the Respondent asserted in final submissions that the charges were equivalent in Australian law to the offence of obtaining property by deception.

    APPLICANT’S SUBMISSION

16. The Applicant acknowledged, in his final submission to the Tribunal, that the 500,000 yuan was a large amount of money which had been transferred to him without documentation, and he thought at the time that it could lead to trouble.  He claimed that at the time he was caught in a difficult position.  His employer did not want him to return to Hubei after the first two years in Beijing, and the company to which he was seconded was insistent that he continue working with them in Beijing.  For two years, he had lived in very poor accommodation which was not sustainable, and he needed to acquire better accommodation if he was to survive in Beijing in the longer term.  He said that he felt he had to accept the 500,000 yuan offered by his employer, even though he recognised that it may involve irregularity or illegality.  He said that no issue was raised with the arrangement over the 16 years until he retired in 2010; and it was only once his employer went into administration that the liquidator approached him to repay the money.

    ASSESSMENT OF CHARACTER

17. The only issue for determination by the Tribunal is whether the Applicant is a person of good character for the purposes of s 21(4)(f) of the Act. This requires an assessment of whether the Applicant “is of good character, at the time of the Minister’s decision on the application”. As the Tribunal now stands in the shoes of the Minister for the purpose of these proceedings, the assessment as to the Applicant’s character is to be made at the time of the Tribunal’s decision.

18. In considering the character requirement in the context of a citizenship application, it is important to bear in mind that 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.[23]

    [23] Fenn v Minister for Immigration and Multicultural Aàairs [2000] AATA 931 at [8].

19. The term good character is not defined in the Act.

20. The Tribunal has, in many decisions, adopted the observations of Justice Lee in Irving v Minister for Immigration, Local Government and Ethnic Affairs:[24]

    ...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.

    [24] (1996) 68 FCR 422 at 431-432 (Irving).

21. The term enduring moral qualities encompasses characteristics which have endured over a long period of time, the ability to distinguish right from wrong and behaviour which is ethical and conforms to the rules and values of Australian society.

22. The assessment of character is to be viewed in a holistic way and may have regard to a broad range of matters relevant to the Applicant.[25]  It requires consideration of an aggregate of qualities although those qualities can be outweighed by a single adverse incident if it is sufficiently serious.[26]

    [25] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [46] (BOY19).

    [26] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7].

23. Section 21(4)(f) requires a decision maker to be satisfied that an applicant is of good character. The word ‘satisfied’ in that context is not amenable to the application of an evidentiary burden of proof, such as ‘balance of probabilities’. Satisfaction requires the decision maker, acting reasonably, to reach an affirmative belief that the applicant is a person of good character.[27]

    [27] Justice O’Bryan in BOY19 at [54]–[55].

24. While the Tribunal is not bound to apply the guidelines for assessment of good character set out in CPI 15,[28]  it will generally do so unless there is a cogent reason not to do so.[29] 

    [28] Minister for Home Affairs v G (2019) 266 FCR 569 at [18].

    [29] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Justice Brennan.

25. CPI 15 provides a framework for assessing an applicant’s character under the ‘good character’ provisions. It indicates that decision-makers should:

    ·consider any character issues that arise on the facts of a case;

    ·consider all relevant information;

    ·guard against bias;

    ·be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;

    ·be mindful that a person who may not have been of good character can become a person of good character; and

    ·continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an applicant is, or is not, of good character.

26. CPI 15 makes it clear that, in most cases, it is not appropriate to automatically conclude that a person is not of good character because the person has been convicted of an offence. A full assessment is required.

27. In this case, the Tribunal is satisfied that the following characteristics of a person who is of good character, set out in Clause 4 of CPI 15, are relevant:

    ·respect and abide by the law in Australia and other countries;

    ·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);

    ·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:

    ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications; ...

    oconcealing criminal convictions;...

    ·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct...

    ·not associate with persons who are involved in anti-social or criminal behaviour…;

    ·not be involved in war crimes, or acts of genocide or terrorism…

28. Clause 4 of CPI 15 adds that it is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case.

    ASSESSMENT OF THE APPLICANT

29. There are a number of important considerations in assessing the relevance of the Red Notice, and the weight to be given to the allegations contained in it to an assessment of the Applicant’s character.

30. First, the Applicant has not been found guilty of any crime and should be presumed innocent. 

31. Secondly, the Red Notice was issued twenty years after the alleged conduct forming the basis of the corruption allegations[30],  which raises legitimate questions about the reliability of the evidence upon which the allegations are based and the relevance of the allegations, to a contemporary assessment of the Applicant’s character.

    [30] The Notice is dated 29 June 2015.  The purchase of the property was in 1995.

32. Thirdly, the factual basis for the allegations is disputed by the Applicant, and he specifically disputes:

    (i)     that the Jianchang Machinery Plant decided to set up an office in Beijing;

    (ii)    that he was designated to deal with the matter;

    (iii)   that he received 500,000 yuan for the purchase of a house and car for the office; and

    (iv)   that he changed the contract for purchase of the house from his own name to his sister-in-law.

33. Fourthly, there is a legitimate question about the commitment of the Chinese authorities to pursue the matter.  While steps were clearly taken to pursue the matter with the Applicant in 2016, the evidence does not indicate that this has been continued in recent years. And there is no evidence that the Chinese authorities have taken any steps under Australian law, by way of extradition or otherwise, to bring the Applicant to trial in relation to the matters raised in the Red Notice.

34. Finally, there is doubt about the status of the alleged case against the Applicant. The assertions in the Red Notice that the Applicant is wanted for prosecution on the charge of corruption is contradicted by the letter from the Chinese Department of International Cooperation of the National Commission of Supervision dated 29 September 2021[31],  which states that the Applicant remains a suspect wanted in China and the subject of a local criminal investigation. While the Red Notice appears to say that the Applicant has been charged with criminal offences, the later correspondence suggests that he is merely a suspect in an investigation.

    [31] Exhibit R2.

35. The Applicant’s explanation of the matters underlying the allegations in the Red Notice raises issues of irregularity and possible illegality on the part of the factory manager who provided the money to him.  If the money was provided to the Applicant as he asserts, it is possible that the factory manager may have acted in breach of his duty to his employer and the state by making an unauthorised payment.  In an Australian context, it appears more likely that this would give rise to a civil dispute between the liquidator and the Applicant over ownership of the property rather than a criminal charge of fraud or obtaining property by deception against the Applicant as posited by the Respondent.

36. Clearly, the Tribunal is not in a position to reach any conclusion regarding the factual basis for the allegations in the Red Notice and it does not do so.  The Tribunal does note, however, that the factual basis for the allegations is disputed and, on the Applicant’s version of events, an allegation of dishonest or fraudulent conduct (however framed) would be unlikely to be sustained.  The Applicant should be presumed to be innocent.  Accordingly, on the facts before it, the Tribunal is not prepared to draw a conclusion that the Applicant was involved in any criminal conduct in 1995 when he received the money, or since when he has been faced with demands to repay it.

37. The evidence regarding the steps taken by the Applicant in response to the allegations in the Red Notice is not entirely clear.  The Tribunal gives little weight to the translation of the WeChat messages, between the Chinese officials and the Applicant and his family, included in the bundle of documents produced by the Applicant.[32]  Ms Zhang acknowledged in her evidence that the reply entries she translated were from notes made by the Applicant and not the actual screenshots of the messages.  However, the Tribunal is satisfied, on the evidence as a whole, that the Applicant did not ignore the allegations and that he took steps to explain himself to the Chinese officials and to mount a defence to the allegations. 

    [32] Exhibit A1 at pp.29-34.

38. The Tribunal also accepts that the Applicant had a reasonable basis of concern that he may not get a fair trial if he were to return to China, for reasons including, that the conduct in issue occurred over 26 years ago, that the responsible manager of the Jianchang Machinery Plant may not be available and, if he were available, he may be motivated to protect his own position and that there is no documentary evidence for the provision of the 500,000 yuan.

39. Finally, s 21(4)(f) requires the Tribunal to assess whether an applicant is of good character at the time of its decision.  The allegations in the Red Notice concern matters which occurred some 26 years ago, in circumstances very different to the Applicant’s life in Australia.  Their relevance to a contemporary assessment of the Applicant’s character is thereby diminished.

1. For these reasons, the Tribunal does not accept that the Red Notice, or the Applicant’s response to it, offer any reliable evidence that the Applicant is now not of good character.

2. The Tribunal has had the opportunity to observe the Applicant in giving his evidence.  He was forthright, candid and respectful.  His candour was demonstrated by his willingness to admit to the Tribunal that he had misgivings about the way in which the payment of 500,000 yuan was made to him at the time but said that he felt the payment was justified and he was compelled by his circumstances to accept it.  The Applicant also expressed a concern for fairness and justice and the importance of the rule of law.

3. The objective evidence is that he has an unblemished criminal record in China and Australia over his 71 years.

4. Otherwise, the evidence shows the Applicant to be a hardworking and loyal employee, with a stable family life, who raised two successful daughters, and established his own business so as to be self-supporting in his later years.  While the Tribunal does not attach too much weight to the two letters of support included in the evidence, they do offer some affirmation of the Applicant’s character. The Tribunal also takes note of the fact that the Applicant’s daughter has stood by her father throughout his dealings with the Red Notice allegations and the citizenship application, and supported him at the hearing.  Her support for the Applicant attests to the strength of their relationship and the respect that she has for her father.  This, in turn, is affirmation that the Applicant is deserving of her respect.

5. The evidence shows that the Applicant has respected and abided by the laws of Australia and China, and he is honest and financially responsible.  There is no evidence that he has acted fraudulently in relation to the Australian government or otherwise, that he has been violent or involved in antisocial behaviours such as drug use or unlawful sexual activity, or that he has been associated with persons involved in antisocial or criminal activities. When viewed in the context of the factors identified in Clause 4 of CPI-15, the Tribunal is satisfied that, at the time of its decision, the Applicant is of good character.

6. Accordingly, the correct and preferable decision is to set aside the decision under review and remit the application for citizenship to the Minister for further consideration.

   DECISION

7. The Tribunal sets aside the decision under review and remits the matter to the Respondent with the direction that the Applicant satisfies s 21(4)(f) of the Australian Citizenship Act 2007.

I certify that the preceding 75 (seventy -five) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 20 April 2022

Dates of hearing:	1 and 2 March 2022
Date final submissions received:	18 March 2022
Advocate for the Applicant:	Lifang Zhang
Advocate for the Respondent:	Eleanor Cannon
Solicitors for the Respondent:	Clayton Utz

APPENDIX A

List of exhibits
A1	Bundle of documents lodged by the Applicant on 11 February 2020 (53 pages)
A2	Reference letter of Athanasia Tzovla dated 14 February 2019
A3	Reference letter of Macro Nigro dated 15 February 2019
A4	Reference letter of Lifang Zhang dated 12 February 2019
A5	Letter of Bingkun Zhang dated 24 October 2019 (Mandarin) and English translation
A6	Declaration of Lifang Zhang regarding translation of material dated 14 September 2019
A7	Personal statement of Bingkun Zhang dated 2 August 2019
R1	Notarial Certificate dated 23 February 2012 (Mandarin) and English translation
R2	Redacted letter dated 29 September 2021 from the Department of International Cooperation, National Commission of Supervision, China