Zheng v Minister for Immigration and Citizenship
[2011] AATA 304
•10 May 2011
CATCHWORDS – CITIZENSHIP – permanent resident – whether of good character – previous convictions – conduct since convictions – decision affirmed.
PRACTICE AND PROCEDURE – the time at which good character to be determined.
PRACTICE AND PROCEDURE – guidelines – varying purposes for which guidelines made – purpose of Australian Citizenship Instructions – whether consistent with legislation as interpreted judicially.
PRACTICE AND PROCEDURE – credibility and credible witnesses – relevance – assessment of the evidence.
Briginshaw v Briginshaw and Another [1938] HCA 34; (1938) 60 CLR 336; 12 ALJR 100
Chen v Minister for Immigration and Citizenship [2011] FCAFC 56
Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232; 41 AAR 539; 89 ALD 258
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409
Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277; (1999) 56 ALD 321
Government Insurance Office (NSW) v Bailey (1992) 27 NSWLR 304
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; 139 ALR 84
Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329
McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354; 6 ALD 6
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; 45 ALD 136; 24 AAR 457
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673; 33 AAR 1
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1; 231 ALR 340; 92 ALD 513; 81 ALJR 304
R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322; 25 ALR 497
Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815
Re Clough and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1158
Re Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re Easton and Repatriation Commission (1987) 12 ALD 777
Re Gibson and Minister for Immigration and Citizenship [2007] AATA 1679; (2007) 45 AAR 424
Re Grimaldi and Minister for Immigration and Citizenship [2010] AATA 922
Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Re Lobo and Department of Immigration and Citizenship [2010] AATA 583; (2010) 116 ALD 639; 52 AAR 304
Re McGourty and Repatriation Commission (1988) 9 AAR 87
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Re Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Rankmore and Minister for Immigration and Citizenship [2010] AATA 1079
Re Rosales and Minister for Immigration and Citizenship [2008] AATA 518
Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44
Re Wasu Deo Naidu and Department of Immigration and Ethnic Affairs [1994] AATA 287
Re Wasu Deo Naidu and Minister for Immigration and Ethnic Affairs [1996] AATA 155
Repatriation Commission v Smith (1987) 74 ALR 537; 15 FCR 327; 12 ALD 798; 7 AAR 17
Secretary, Department of Primary Industry and Energy v Collins [1992] FCA 61; 34 FCR 340; 106 ALR 351; 26 ALD 265; 15 AAR 184
Shi v Migration Agents’ Registration Authority [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152
Surinakova v Minister for Immigration and Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87; 26 ALD 203
The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 28 ALD 50; 16 AAR 566
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447; 77 ALJR 1598
A New Tax System (Family Assistance) (Administration) Act 1999 s 16
Administrative Appeals Tribunal Act 1975 s 33(1)(c)
Australian Citizenship Act 1948 ss 13(1)(f)
Australian Citizenship Act 2007 ss 3, 5, 16(2), 21(1), 21(2)(h), 21(2), 21(2A), 22, 23, 24(3), 24(4), 24(5), 24(6), 24(1A), 24(4A)
Australian Security Intelligence Organisation Act 1979
Bankruptcy Act 1966 ss 139W(2), 149K
Commonwealth Electoral Act 1918 s 93
Crimes Act 1958 (Vic) s 75A
Evidence Act 2005 ss 79, 80(a)
Fisheries Act 1952 s 7B
Migration Act 1958 ss 5A(1)(g), 5A(2)(a) and (b), 5A(3), 5A(3)(g), 5C(1)(c), 36, 40(1), 180A, 501, 501(2)
National Health Act 1953
Safety, Rehabilitation and Compensation Act 1988 ss 28(1), 28(2), 28(3), 28(3A), 28(4)
Social Security (Administration) Act 1999 ss 9(1), 9(3), 9(4)
Social Security Act 1991 ss 541B(3A), 541B(3B)
Veterans’ Entitlements Act 1986 ss 120(4)
Australian Citizenship Instructions
Migration Regulations 1994 rr 2.04(1)(b)(ii)
Youth Allowance (Satisfactory Study Progress Guidelines) Determination 1998 cl 1.6, 2.1(1), 2.1(2)
Macquarie Dictionary, 3rd ediction, 2001, The Macquarie Library Pty Ltd
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
DECISION AND REASONS FOR DECISION [2011] AATA 304
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/3636
GENERAL ADMINISTRATIVE DIVISION )
Re:DA WEI ZHENG
Applicant
And:MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 10 May 2011
Decision:The Tribunal affirms the decision of the respondent dated 8 June 2010.
S A Forgie
Deputy President
On 8 June 2010, a delegate of the Minister for Immigration and Citizenship (Minister) refused Mr Da Wei Zheng’s application for Australian citizenship. She did so on the basis that Mr Zheng did not meet the requirements of s 21(2)(h) of the Australian Citizenship Act 2007 (AC Act). I have decided to affirm the decision under review.
BACKGROUND
Mr Zheng is a Chinese citizen but has been a permanent resident of Australia since 24 May 2000. Mr Zheng’s general history set out in the report of the consulting clinical and forensic psychologist, Mr Jeffrey Cummins,[1] was not challenged by either party. It is consistent with the more general evidence given by Mr Zheng on the same subjects. In light of the evidence from both Mr Cummins and Mr Zheng, I have made the findings of fact set out in this section of my reasons. Their evidence is also relevant when I make further findings later in these reasons.
[1] Exhibit L
Mr Zheng’s parents are also permanent residents of Australia but his father spends most of his time in China where he sells medical equipment. Mr Zheng’s older brother also spends a lot of his time in China while Mr Zheng and his mother live in Australia.
The family arrived in Australia in 1997 when Mr Zheng was aged nine years. He attended English language classes for three months before starting school at St Joseph’s Primary School. After completing Grade 4, he attended Haileybury College until the end of Year 7. For Years 8, 9, 10 and part of 11, Mr Zheng attended the Glen Waverley Campus of Wesley College.
In April 2005 while he was attending Wesley College and studying Year 11, Mr Zheng committed the offences of armed robbery and attempted armed robbery. I will return to this later in these reasons.
Part way through Year 11, Mr Zheng transferred to the Rowville Secondary College and completed Year 12 at that school with his VCE and a TER score of 82. In 2006, Rowville Secondary College gave him a Year 12 Subject Award for each of the subjects of Economics and Business Management.[2] During that year, Mr Zheng worked part time as a telephone interviewer for Roy Morgan Research Pty Ltd.
[2] Exhibit H
Mr Zheng was charged with having, on 8 April 2005, committed the offence of armed robbery contrary to s 75A of the Crimes Act 1958 (Vic) (Crimes Act). That section provides that:
“(1) A person is guilty of armed robbery if he commits any robbery and at the time has with him a firearm, imitation of firearm, offensive weapon, explosive or imitation explosive within the meaning assigned to those terms for the purposes of section 77(1).
(2) A person guilty of armed robbery is guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum).”
Mr Zheng was also charged with attempted armed robbery. Like armed robbery, that is an offence under s 321M of the Crimes Act.
On 21 February 2006, Mr Zheng appeared in the Melbourne Children’s Court. He was recorded as having pleaded guilty and the court as having made the following order:
“Without conviction, adjourned to 10.00am on 20/2/2007 at MELBOURNE CHILDREN’S COURT
The offender is released upon entering a Good Behaviour Bond in the amount of $250
The offender is to be of good behaviour during the period of Good Behaviour Bond
Forfeiture order made by consentOrder all Property/s seized be forfeited and destroyed.”[3]
Twelve months later, on 20 February 2007, the Children’s Court noted that there had been compliance with the bond. The order made was “Dismissed”.[4] I note that the Certified Extract recording this refers to the offence of attempted armed robbery whereas the Certified Extract referring to events on 21 February 2006 refers only to the offence of armed robbery. Reading the two together, I am satisfied that both charges have had the same outcome and that outcome took the form of the bond and associated orders.
[3] Exhibit F
[4] Exhibit G
Mr Zheng is currently in his final year of a double degree in business and commerce and business communication at Monash University. He has maintained a credit average and has not failed any subjects. He achieved a High Distinction in the subject of Business Statistics in 2008.[5]
[5] Exhibit I
On 15 September 2009, Mr Zheng signed an application for Australian citizenship by conferral. He lodged it with the Department of Immigration and Citizenship (Department) on the same day. Eight days later, on 23 September 2009, Mr Zheng left Australia to travel to Japan. He spent the following six months or so in Japan as an exchange student. He did so as part of a programme offered by Monash University.
During Mr Zheng’s first year at Monash University, he worked for two months as a part time waiter at Crown Casino. Since then, he has assisted his brother in administrative work relating to the establishment of a business exporting red wine to China. Mr Zheng sees his future in investment and accounting in Australia.
Mr Zheng is not recorded as having committed any criminal offence in Hong Kong or in Japan.[6]
LEGISLATIVE BACKGROUND
[6] Exhibits D and E
Summary of provisions relating to acquisition of citizenship by application
The AC Act sets out two main ways in which a person may become an Australian citizen. The first is automatically in one of the circumstances provided for in Division 1 of Part 2 of the AC Act. The second is by acquiring it by application to the Minister under Division 2 of Part 2.
Division 2 sets out three circumstances in which citizenship may be acquired for the first time. I am concerned with those provided for in Subdivision B of that Division. It sets out seven situations in which a person may acquire citizenship. I am concerned with the first situation, which is provided for in ss 21(2) and (2A). Section 21(2) provides:
“A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)is aged 18 or over at the time the person made the application; and
(b)is a permanent resident:
(i)at the time the person made the application; and
(ii)at the time of the Minister’s decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or has completed relevant defence service (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister’s decision on the application.”
Section 21(2A) sets out certain criteria that must be satisfied before ss 21(2)(d), (e) and (f) are taken to be satisfied. They do not arise in this case. Nor do the qualifications to s 21(1) found in the remaining provisions of s 22 and of s 23.
Once a person satisfies the criteria in s 21(2), the Minister may approve his or her becoming an Australian citizen but is not obliged to do so. That is the effect of ss 24(1A) and (2). Section 24 goes on to provide for circumstances in which the Minister must not approve a person’s becoming an Australian citizen. Examples of those circumstances include his not being satisfied of the person’s identity,[7] the person is the subject of an adverse or qualified security assessment under the Australian Security Intelligence Organisation Act 1979,[8] has been convicted of certain offences[9] or, in certain circumstances, the person is not present in Australia.[10]
[7] s 24(3)
[8] s 24(4)
[9] s 24(4A) and (6)
[10] s 24(5)
The time at which I must be satisfied of good character
Section 21(2)(h) tells me that the Minister must be “satisfied” that Mr Zheng is of good character at the time of his decision on the application for citizenship. That time was 8 June 2010 when the delegate made her decision. Is that the time at which I decide the issue or is it another time such as the time I make my decision? It is important to answer this question for it has some impact on whether I can have regard to events that have occurred since the decision under review was made or evidence that has come to hand since then.
Until Shi v Migration Agents’ Registration Authority[11] (Shi) was decided in 2008, authorities such as Freeman v Secretary, Department of Social Security[12] (Freeman), Re Tiknaz and Director-General of Social Services[13] (Tiknaz), Jebb v Repatriation Commission[14] (Jebb), Re Easton and Repatriation Commission[15] (Easton) and Re McGourty and Repatriation Commission[16] (McGourty) had decided that careful regard had to be paid to the nature of the decision under review. The Tribunal was entitled to take into account all of the facts proved before it but must do so within the confines of the decision under review. As a general proposition, the Tribunal was not limited to the facts that were before the decision-maker. Its role was, as stated by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs:[17]
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.”[18]
[11] [2008] HCA 31; (2008) 235 CLR 286; 248 ALR 390; 48 AAR 345; 103 ALD 467; 82 ALJR 1147; Kirby, Hayne, Heydon, Crennan and Kiefel JJ
[12] [1988] FCA 294; (1988) 19 FCR 342; 87 ALR 506; 15 ALD 671; 9 AAR 255
[13] (1981) 4 ALN N44 (Davies J, President, Senior Member Ballard and Dr Garlick, Member)
[14] [1988] FCA 105; (1988) 80 ALR 329 (Davies J)
[15] (1987) 12 ALD 777 (Davies J)
[16] (1988) 9 AAR 87 (Davies J)
[17] [1979] AATA 179; (1979) 24 ALR 577
[18] [1979] AATA 179; (1979) 24 ALR 577 at 589
Although the Tribunal could look to the material before it and was not confined to the material before the original decision-maker, it did so to see whether “that decision”, which was the original decision-maker’s decision, was the correct or preferable decision. The nature of the decision under review still had a role and it was a determinative role in assessing the material to which the Tribunal could have regard. The point was made by Davies J in Freeman. His Honour said that, if the Tribunal were reviewing a decision to cancel a pension as was the case before him, the issue to be decided by the Tribunal:
“…was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow’s pension as at the date of the Tribunal’s decision.”[19]
[19] (1988) 19 FCR 342 at 345
Davies J contrasted the task that the Tribunal had to undertake in:
“… Re Tiknaz, in Re Easton, in Jebb’s case and in McGourty’s case, [where] the decision under review was a decision refusing to grant a pension or benefit that had been applied for. In each case, it was held that there was jurisdiction to consider entitlement not only as from the date of the application but also entitlement up to the date of the Tribunal’s decision. This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal’s decision.”[20]
[20] (1988) 19 FCR 342 at 345
If limited to reviewing the decision at the time it was made, there were limits on the evidence to which the Tribunal might have regard. Those limits are illustrated by the judgment of Wilcox, Burchett and French JJ in The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services[21] (HBF case). The limited way in which regard could be had to evidence of events after the date of the decision was referred to a year earlier by Hill J in Surinakova v Minister for Immigration and Ethnic Affairs[22] (Surinakova).
[21] [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 28 ALD 50; 16 AAR 566
[22] [1991] FCA 596; (1991) 33 FCR 87; 26 ALD 203; Hill J
The HBF case illustrated the way in which evidence of matters happening after a relevant period might relate to that period. Under the National Health Act 1953, the Minister might give directions to a registered health insurance organisation with respect to the scope and level of benefits available to contributors. Once registered, the organisation was required to notify the Secretary of certain changes it made to its constitution, articles of association or rules. If the Minister was of the opinion that a change might, among other matters, impose an unreasonable or inequitable condition affecting the rights of any contributors, that Minister might declare that the change had not come into operation. Wilcox, Burchett and French JJ explained how the particular decision limited the evidence to which the Tribunal could have regard:
“In the present case, the question before the primary decision-maker (the delegate of the Minister) was whether, at the time it took effect, the change imposed an unreasonable or inequitable condition; not whether, in the light of developments over the ensuing three years until the Tribunal hearing, the effect of the rule change was to occasion a state of unreasonableness and inequity to contributors. Of course, in considering the position as at the date of the rule change, the Tribunal is not confined to the historical position. It is entitled to receive evidence as to prospective developments in relation to IVF, as they appear at the date of the rule change. The reason is that, in evaluating the effect of the change as at that date, account may be taken of predictable developments. But the evidence must be related back to the date of the change.”[23]
[23] [1992] FCA 599; (1992) 39 FCR 225; 111 ALR 1; 28 ALD 50; 16 AAR 566 at [24]; 234; 11; 59; 575
The second example is found in Surinakova, in which Hill J said:
“There may be occasions where evidence of events subsequent to the decision may have relevance, not in the sense that those events are matters that should have been taken into account at the time the decision was made, but rather as showing that the probability of the subsequent event happening is one that could be taken into consideration.”[24]
[24] [1991] FCA 596; (1991) 33 FCR 87; 26 ALD 203 at [19]; 94; 205
Since the High Court’s decision in Shi, the Tribunal’s task has changed. Unless the legislative provisions under which the decision under review was made provide to the contrary, I am now required to address the issues raised by those provisions at the time I make the decision. While those issues will be the issues considered and decided upon by the person who made the decision under review, I will no longer necessarily be deciding whether the decision was the correct or preferable decision at the time it was made. I will be deciding whether it is the correct or preferable decision made at the time I make my decision on review. Unless the relevant legislative provisions provide to the contrary, the time at which I will make that decision will no longer be influenced by the characterisation of the decision as a cancellation decision or the like.
As I said in Re Lobo and Department of Immigration and Citizenship,[25] since Shi the task of the Tribunal is this:
[25] [2010] AATA 583; (2010) 116 ALD 639; 52 AAR 304
“(1) the decision that the Tribunal must review is determined by reference to the statutory provisions conferring jurisdiction on it;
(2)the Tribunal will address the same issues or questions as those addressed by the original decision-maker;
(3)unless there is a temporal element in the legislation requiring a contrary conclusion, the Tribunal reviews a decision as at the date it conducts that review and reaches its own decision;
(4)the Tribunal may have regard to evidence on issues and matters up to the date of its decision on review; and
(5)the task of the Tribunal:
(a)is to reach a decision that is the correct or preferable decision i.e. the decision that is correct according to the law and on the evidence and, where more than one decision meets that description, the decision that is preferable having regard to the limits imposed by the legislation under which the decision is made and the facts of the case; and
(b)is not to decide whether the decision under review is itself the correct or preferable decision.”[26]
[26] [2010] AATA 583; (2010) 116 ALD 639; 52 AAR 304 at [39]; 653-654;319-320
Section 21(2)(h) is not a provision that directs me to follow any different path. Although expressed to be assessed at the time that the Minister makes his decision, good character is clearly intended to be assessed from time to time until the application is finally determined on its merits. This is consistent with the approach taken by the authorities that preceded Shi for the decision under review can broadly be characterised as an entitlement decision. Entitlement is determined from time to time on current material as Davies J explained in Freeman. The approach is also consistent with that in Shi.
The standard of proof or the yardstick by which I decide whether Mr Zheng is a person of good character
The standard of proof is the yardstick by which courts and tribunals decide whether or not the evidence or material they have supports their finding that a fact has, or has not, occurred. At common law, the yardstick varies according to whether the finding of fact must be made in the context of a criminal charge or in the context of civil litigation. In the former, the yardstick is that of proof beyond reasonable doubt. In the latter, it is proof on the balance of probabilities. The yardstick implicit in the civil standard of proof is that of the preponderance of probability or the balance of probabilities.[27]
[27] Repatriation Commission v Smith (1987) 74 ALR 537; 15 FCR 327; 7 AAR 17 at 546; 334-335; 25-26; Northrop, Beaumont and Spender JJ
Parliament can choose its own standard. In the case of s 21(2)(h) of the AC Act, it has chosen the yardstick of “satisfaction”. It is a yardstick that Parliament has chosen in other contexts such as the Bankruptcy Act 1966 (Bankruptcy Act)[28] and the A New Tax System (Family Assistance) (Administration) Act 1999 (FAA Act).[29] At times, the yardstick is expressed as “reasonable satisfaction” as is the case in s 120(4) of the Veterans’ Entitlements Act 1986 (VE Act). It is in that context that Beaumont J, with whom Northrop and Spender JJ agreed, decided in Repatriation Commission v Smith[30] that “… this could only have been intended to introduce the standard of proof required in civil litigation.”[31] When the Tribunal applies that standard of proof, it asks itself:
“… whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other …”.[32]
[28] e.g. Bankruptcy Act, ss 139W(2) and 149K
[29] FAA Act, s 16
[30] (1987) 74 ALR 537; 15 FCR 327; 12 ALD 798; 7 AAR 17
[31] (1987) 74 ALR 537; 15 FCR 327; 12 ALD 798; 7 AAR 17 at 547; 335; 800; 26
[32] (1987) 74 ALR 537; 15 FCR 327; 12 ALD 798; 7 AAR 17 at 538; 335; 800; 26
In the context of the Migration Act 1958 (Migration Act), the Federal Court has decided that the word “satisfied” should be interpreted in the same way. It has done so in relation to s 116 which gives the Minister power to cancel a visa if “satisfied” of certain matters and after considering Repatriation Commission v Smith.[33] Having regard to the context in which s 21(2)(h) of the AC Act appears and the authorities to which I have referred, there is no reason to distinguish between satisfaction and reasonable satisfaction. For the purposes of s 21(2)(h) the standard of proof is the same. I must decide whether Mr Zheng is of good character by applying the civil standard of proof and so on the balance of probabilities.
[33] Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578 at [22] per Gray J followed in Parajuli v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 563 at [17] per Moore J
At the practical level, this means that I must consider all of the evidence and material I have before me. I must consider whether it is probative of the factual issues that I must decide and disregard any that is not while remembering to give reasons for doing so. I must then weigh all of the probative evidence and material and decide whether it establishes the particular fact in issue on the balance of probabilities. In doing that, I must remember the words of Dixon J in Briginshaw v Briginshaw and Another[34] regarding the civil standard of proof. Dixon J said of that standard:
“… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”[35]
Neither Mr Zheng nor the Minister carries a burden of proof and the standard of proof is no greater than that of “satisfaction”
[34] [1938] HCA 34; (1938) 60 CLR 336; Latham CJ, Rich, Starke, Dixon and McTiernan JJ
[35] [1938] HCA 34; (1938) 60 CLR 336; 12 ALJR 100 at 362
I have addressed this issue because I was referred to the reasons for decision of Senior Member McCabe when he said in Re Chen and Minister for Immigration and Citizenship[36] (Chen) that:
“The wording of the test is important. It does not require that the Minister form an adverse view of the applicant’s character. The Minister must be positively persuaded that the applicant is of good character. …”[37]
[36] [2007] AATA 1815; Senior Member McCabe
[37] [2007] AATA 1815
When read with s 21(2)(h), this passage caused me a little concern for the general rule in merits review of administrative decisions is that nobody need persuade, positively or otherwise, the decision-maker to make a particular decision. The general principles were set out in McDonald v Director-General of Social Security[38] (McDonald):
“There is certainly no legal onus of proof arising from the fact that this is an ‘appeals’ tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's. The AAT itself, in a series of cases beginning with; Re Ladybird Children's Wear Pty Ltd (1976) 1 ALD 1, has taken the view that there is no presumption that the administrator's decision is correct. This is clearly the right approach to the matter.”[39]
[38] [1984] FCA 57; (1984) 1 FCR 354; 6 ALD 6; Woodard, Northrop and Jenkinson JJ
[39] [1984] FCA 57; (1984) 1 FCR 354; 6 ALD 6 at 357; 10 per Woodward J
Similar views were expressed in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004[40] (QAAH of 2004) in relation to the Refugee Review Tribunal (RRT) when considering protection obligations arising under the Convention relating to the Status of Refugees and referred to in s 36 of the Migration Act:
“ This court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial …, and that there is an onus upon neither an applicant nor the Minister …. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to the conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened. That is so, even though, pursuant to s 91V of the Act, the Minister may require the applicant to make or verify a statement on oath or affirmation, and may draw an adverse inference against an applicant if the Minister has reason to believe that ‘the applicant was not sincere’ in complying with the request.’[41]
[40] [2006] HCA 53; (2006) 231 CLR 1; 231 ALR 340; 92 ALD 513; 81 ALJR 304; Gummow ACJ, Callinan, Heydon and Crennan JJ; Kirby J dissenting on the application of, but not on the nature of, principles that are applicable.
[41] [2006] HCA 53; (2006) 231 CLR 1; 231 ALR 340; 92 ALD 513; 81 ALJR 304 at [40]; 17; 351; 525; 315 per Gummow ACJ, Callinan, Heydon and Crennan JJ (citations omitted)
Kirby J made a point made earlier by Woodward J in McDonald:[42]
“ In an inquisitorial tribunal, the legal burden of proof typical of an adversarial trial may be missing. However, the forensic context still reflects the reality of a decision-making process. If a party that could be expected to present material in support of its case fails to do so, that party cannot then complain if the decision-maker decides that a basis for the relief claimed has not been established. …”[43]
[42] [1984] FCA 57; (1984) 1 FCR 354; 6 ALD 6 at 357; …….
[43] [2006] HCA 53; (2006) 231 CLR 1; 231 ALR 340; 92 ALD 513; 81 ALJR 304 at [136]; 46-47; 376; 550 per Kirby J and see also McDonald [1984] FCA 57; (1984) 1 FCR 354; 6 ALD 6 at 357; 10
In McDonald, Woodward J had gone on to recognise that the general position could be altered by Parliament:
“It is possible to imagine a case where the Act which the administrator is applying places a requirement or onus on one or other of the parties to an issue to establish a particular state of facts on which the administrator’s decision would be based. If that were so, the same requirement or onus would apply before the AAT.”[44]
This was not a matter addressed by the High Court in QAAH of 2004 for it was concerned with the RRT which, unlike this Tribunal, does not have a multi-jurisdictional function.
[44] [1984] FCA 57; (1984) 1 FCR 354; 6 ALD 6 at 357; 10
With these principles in mind, I looked at the provision with which Senior Member McCabe was concerned when he decided Chen and found that it was s 13(1)(f) of the Australian Citizenship Act 1948 (1948 Act). No mention has been made of that fact in the decisions of the Tribunal that have adopted his words and applied them to the AC Act. They are Re Rankmore and Minister for Immigration and Citizenship[45] (Rankmore), Re Grimaldi and Minister for Immigration and Citizenship[46] (Grimaldi) and Re Rosales and Minister for Immigration and Citizenship[47] (Rosales). The first was decided under s 16(2) and the remaining two under s 21(2)(h) of the AC Act. Although in a different context, there is no difference in substance between ss 16(2) and 21(2)(h).
[45] [2010] AATA 1079 at 9th unnumbered paragraph of extract from transcript of proceedings per Senior Member Allen
[46] [2010] AATA 922 at [9] per Senior Member Dunne
[47] [2008] AATA 518 at [47] per Deputy President Block
Where there is a difference is between those two provisions and s 13(1)(f) of the 1948 Act. Section 13(1)(f) provides:
“… Subject to this section, the Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person who satisfies the Minister that:
…
(f)the person is of good character;
…”
As Senior Member McCabe observes, the wording of the test is important and the test set out in s 13(1)(f) is different from that in ss 16(2) and 21(2)(h). The difference lies in their wording. Section 13(1)(f) speaks of the person to whom a grant of a certificate of Australian citizenship might be made as the “person who satisfies the Minister that … the person is of good character” (emphasis added). Sections 16(2) and 21(2)(h) speak of a person’s being eligible to become an Australian citizen if “… the Minister is satisfied that the person is of good character …” (emphasis added). The wording of s 13(1)(f) clearly places a burden upon the person seeking a grant to satisfy the Minister. Sections 16(2) and 21(2)(h) of the AC Act clearly do not. The Minister must be satisfied but the two provisions are referring to a state of mind. They do not impose a burden upon any person to make him achieve that state of mind.
Nor do ss 16(2) and 21(2)(h) require that the state of mind that the Minister achieves is anything more than that of being “satisfied”. That is the word that Parliament has chosen. It is a word that Parliament has chosen knowing that the Federal Court and the High Court have expressed views about its meaning. That is a meaning on which there is no gloss and which cannot be interpreted as “positively persuaded”. I can understand why Senior Member McCabe chose that expression in describing his task under s 13(1)(f) of the 1948 Act but it has no place in describing the task under, in this case, s 21(2)(h) of the AC Act.
Good character
The concept of “good character” is not defined in s 21 or elsewhere in the AC Act. On behalf of the Minister, Mr Eteuati submitted that I should have regard to the decision of Deputy President Chappell in Re Mlinar and Minister for Immigration and Multicultural Affairs[48] (Mlinar) when he said:
“… The standard of good character should be even higher for citizenship cases than s 501 matters because of the importance of citizenship and the greater responsibilities and privileges attached to it …”[49]
[48] (1997) 48 ALD 771; 25 AAR 231
[49] (1997) 48 ALD 771; 25 AAR 231 at 776; 236
The reference to s 501 is a reference to s 501 of the Migration Act when it previously provided that the Minister might refuse to grant a visa or cancel a visa already granted if, having regard to certain matters, “is satisfied that the person is not of good character”.[50] That is a provision that, like s 21(2)(h) and unlike s 13(1)(f) of the 1948 Act, does not impose a burden of proof upon the person who seeks a visa or seeks to retain a visa. It is a provision that is expressed in the negative but the concept of “good character” remains unaltered. Therefore, I have considered authorities that have considered the expression in contexts such as s 501 as well as in the context of the AC Act or its predecessors.
[50] Migration Act, ss 501(2)(a) and (b) when read with s 501(1)(a)
The expression “good character” was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs[51] when reviewing a decision made under the former s 180A of the Migration Act. That section permitted the Minister to refuse or cancel a visa if satisfied that, if the person were allowed to enter or remain in Australia, he or she would be likely to engage in criminal conduct, vilify a segment of the Australian community, incite discord or represent a danger to the Australian community or a segment of it and was also satisfied that the person was not of good character. Deputy President McMahon said:
“ ‘Good character’ cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as ‘1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status;
4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.’ In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation.”[52][51] (1994) 19 AAR 148
[52] (1994) 19 AAR 148 at 154-155
Deputy President McMahon noted the structure and purpose of the Migration Act. He observed the emphasis given in the legislation to the giving of false information and concluded that:
“… These are overall requirements important in the administration of immigration procedures. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration, and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”[53]
[53] (1994) 19 AAR 148 at 155-156
A similar approach was adopted by Deputy President Forrest in Wasu Deo Naidu and Department of Immigration and Ethnic Affairs[54] and Deputy President McDonald in Ragni Mala Prasad and Minister for Immigration and Ethnic Affairs[55] (Prasad) and Wasu Deo Naidu and Minister for Immigration and Ethnic Affairs.[56] In Prasad, Deputy President McDonald added:
“… A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”[57]
[54] [1994] AATA 287
[55] [1994] AATA 326
[56] [1996] AATA 155
[57] [1994] AATA 326 at [7]
What is meant by the expression “good character” was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs[58] (Irving). While each member of the Full Court rejected the notion that good character referred to a person’s reputation or repute,[59] Lee J expressed that to which good character does refer in the following passage:
“ 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 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 while 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.
…
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry.”[60]
[58] (1996) 68 FCR 422; 139 ALR 84; Davies, Lee and RD Nicholson JJ
[59] (1996) 68 FCR 422; 139 ALR 84 at 425; 87 per Davies J and with whom RD Nicholson J agreed; 431; 94 per Lee J
[60] (1996) 68 FCR 422; 139 ALR 84 at 431-432; 94
Davies J said in Irving:
“… The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of ‘good character’ requires the exercise of a value judgment. There are no precise parameters which distinguish ‘good character’ from ‘bad character’. Although, in general, ‘good character’ can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision. …”[61]
[61] (1996) 68 FCR 422; 139 ALR 84 at 427-428; 90
His Honour spoke also of practical considerations that may impinge upon the decision-making process but retained the distinction between reputation and repute, which is not a proper focal point of the consideration, and inherent mental and moral qualities, which are:
“… 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.”[62]
[62] (1996) 68 FCR 422; 139 ALR 84 at 425; 87-88
Regard should be had to the judgment of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs.[63] It is relevant in demonstrating that the purposes for which an administrative decision must be made may influence the precise standard that a person’s enduring moral qualities must meet if he or she is to be regarded as a person of “good character”. Speaking generally of s 501 of the Migration Act as it was previously drafted, the Full Court said that it:
“… does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of ‘good character’ in s 501 is not concerned with whether an applicant meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is ‘not of good character’ within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.”[64]
“… Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal’s decision on this ground, so (sic) it is unnecessary to pursue this question.”[65]
[63] [1999] FCA 1277; (1999) 56 ALD 321; Spender, Drummond and Mansfield JJ
[64] [1999] FCA 1277; (1999) 56 ALD 321 at [8]; 324
[65] [1999] FCA 1277; (1999) 56 ALD 321 at [24]; 327
It is against this background that the comment made in Mlinar and set out in [39] above can be better understood. The comment is to the effect that the “standard of good character” should be “even higher” for citizenship cases than for those in which failure to be of good character will lead, under s 501 of the Migration Act, to refusal or cancellation of a visa to enter or remain in Australia.
That might have been a valid comment when s 501 was drafted in terms of the Minister’s having the power of refusal or cancellation if “satisfied that the person is not of good character” although I have expressed doubts in the past.[66] I do not think that it can be regarded as a valid comment any longer. Since Mlinar was decided, the Migration Act has been amended by removing the reference to “good character” in s 501.
[66] Re Gibson and Minister for Immigration and Citizenship [2007] AATA 1679; (2007) 45 AAR 424 at [35]; 437
The concept of “good character” is still referred to in the Migration Act but not in the sense of a standard that a person must meet or fails to meet. Instead, it is part of one of the circumstances in which “a non-citizen is of character concern”.[67] Its only relevance is in the process by which the Governor-General may make regulations prescribing an identifier that will be regarded as a personal identifier under s 5A(1)(g) of the Migration Act. Personal identifiers must meet the criteria specified in s 5A(2)(a) and (b) and must also promote one or more of the purposes set out in s 5A(3). One of those purposes is that the identifier will “… enhance the Department’s ability to identify non-citizens who have a criminal history, who are of character concern or who are of national security concern”[68]. Personal identifiers may be prescribed in various circumstances under the Migration Act. Section 40(1), for example, provides that the regulations may provide that visas, or specified visas, may only be granted in certain circumstances. Subject to various qualifications, those circumstances may include a situation in which the person has complied with any requirement of an officer to provide one or more personal identifiers in relation to the application for a visa.[69] A non-citizen in immigration detention must provide personal identifiers.[70] These are but a few examples.
[67] Migration Act, s 5C(1)(c): “For the purposes of this Act, a non-citizen is of character concern if: … (c) having regard to either or both of the following: (i) the non-citizen’s past or present criminal conduct; (ii) the non-citizen’s past and present general conduct; the non-citizen is not of good character; …”
[68] Migration Act, s 5A(3)(g)
[69] See also Migration Regulations 1994 rr 2.04(1)(b)(ii)
[70] Migration Act, Part 2, Division 13AA
As it is no longer a concept that is used in the Migration Act as a standard, it seems to me that any relevance of the statement in Mlinar must be confined to an acknowledgment that citizenship is both a privilege and a responsibility. Citizenship takes a person from a position in which he or she has many of the privileges and responsibilities of an Australian citizen to a position in which he or she enjoys and bears them all. In the ordinary rush of day to day living, the differences between the two are of little consequence as a rule. A citizen and a permanent resident each has access to private institutions such as banks and schools, to public institutions such as educational institutions and to benefits such as Medicare benefits and many under social security legislation. Each can own real and personal property without restriction. There are differences, however, and they relate to two main areas. The first is the freedom to come and go from Australia at will. A citizen may do that but a permanent resident must bear in mind the need to obtain the appropriate return visa. The second relates to voting. In general terms, only those who are Australian citizens are entitled to vote. That is the effect of s 93 of the Commonwealth Electoral Act 1918. The differences are greater between the privileges of an Australian citizen and a person who is permitted to remain in Australia on a temporary visa.
The Australian Citizenship Instructions
A. The submissions
It was contended on behalf of the Minister that:
“In determining whether an applicant is of good character for the purposes of section 21(2)(h) of the Act, decision makers (including the Tribunal) are guided by the Australian Citizenship Instructions (‘ACI’). Decision makers will ordinarily apply policy such as the ACIs unless its application produces an unjust decision in the circumstances (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).”[71]
[71] Respondent’s Statement of Facts and Contentions at [2.4]
B.Categorisation of policy and guidelines
Administrative decision-makers must make their decisions within the confines of the powers and discretions conferred upon them by the relevant legislation. Therefore, the enabling legislation is the first place to look for the factors and principles that guide their decisions. That legislation may refer to guidelines in relation to decisions or it may not. The decision-makers may choose to formulate their own guidelines to assist them in their decision-making. Guidelines, therefore, may take more than one form. Examples are:
(1)Decision-maker required to make guidelines and make specified decisions “under” them.
Comcare, for example, is given the power to prepare a Guide to the Assessment of the Degree of Permanent Impairment (Guide), which must set out certain criteria and methods. It may vary or revoke the Guide, which must be approved by the relevant Minister.[72] The Guide is a legislative instrument.[73] Comcare, licensees and the Tribunal must, as appropriate, assess, re-assess or review the degree of permanent impairment of an employee resulting from an injury or the degree of non-economic loss suffered by an employee “under the relevant provisions of the approved Guide”.[74]
[72] Safety, Rehabilitation and Compensation Act 1988 (SRC Act), ss 28(1), (2) and (3)
[73] SRC Act, s 28(3A)
[74] SRC Act, s 28(4)
Such guidelines form part of the legislative scheme and, as such:
“… it may be accepted that the Guide, as made at the time of the enactment of the SRC Act, forms part of a legislative scheme and may be referred to in order to ascertain the nature of that scheme – Pearce & Geddes, Statutory Interpretation in Australia, 5th Edition, Butterworths (2001) at 337. As Mason J said in Brayson Motors Pty Ltd (In Liq) v Federal Commissioner of Taxation [1985] HCA 20; (1985) 156 CLR 651 at 652:
‘One looks at regulations, not to construe an overall scheme or to throw light on ambiguity in a statutory provision, but to ascertain what the scheme is.’”[75]
[75] Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232; 41 AAR 539; 89 ALD 258 at [72]; 251; 558; 276-277 per French and Stone JJ; Gyles J dissenting
(2)Decision-maker required to “have regard to” certain criteria specified in legislation
As previously drafted, s 501(2) of the Migration Act provided that s 501, which permitted refusal and cancellation of visas, applied to a person “… if the Minister: (a) having regard to: (i) the person’s past criminal conduct; or (ii) the person’s general conduct; is satisfied that the person is not of good character.”
The expression “having regard to” or “have regard to”:
“… is capable of different meanings, depending on its context. As Mr Williams pointed out, a statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and ‘give weight to them as a fundamental element in making his [or her] determination’: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. But the phrase ‘have regard to’ can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.”[76]
[76] Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [54]; 163 per Sackville J
In R v Hunt; Ex parte Sean Investments Pty Ltd,[77] Mason J, with whom Gibbs J agreed, considered s 40AA(7) of the National Health Act 1953, which provided that “The Permanent Head shall, in determining the scale of fees in relation to a nursing home … have regard to costs necessarily incurred in providing nursing home care in the nursing home.” His Honour decided:
[77] [1979] HCA 32; (1979) 180 CLR 322; 25 ALR 497; (1979) 53 ALJR 552; Gibbs, Mason and Murphy JJ
“ When sub-s. (7) directs the Permanent Head to ‘have regard to’ the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination. There are two reasons for saying that the costs are a fundamental element in the making of the determination. First, they are the only matter explicitly mentioned as a matter to be taken into account. Secondly, the scheme of the provisions is that, once the premises of the proprietor are approved as a nursing home, he is bound by the conditions of approval not to exceed the scale of fees fixed by the Permanent Head in relation to the nursing home. In many cases it is to be expected that the scale of fees will be fixed by ascertaining the costs necessarily incurred and adding to them a profit factor. In the very nature of things, the costs necessarily incurred by the proprietor in providing nursing home care in the nursing home are a fundamental matter for consideration.
However, the sub-section does not direct the Permanent Head to fix the scale of fees exclusively by reference to costs necessarily incurred and profit. The sub-section is so generally expressed that it is not possible to say that he is confined to these two considerations. The Permanent Head is entitled to have regard to other considerations which show or tend to show that a scale of fees arrived at by reference to costs necessarily incurred, with or without a profit factor, is excessive or unreasonable. It may be that the rent paid by the proprietor of a nursing home, though a cost necessarily incurred, exceeds the prevailing rental which is paid for comparable premises and that the determination of a scale of fees by reference to that rent would result in a scale of fees which is unreasonably high. The Permanent Head would be entitled to take this factor into account in making his determination.”[78]
[78] [1979] HCA 32; (1979) 180 CLR 322; 25 ALR 497; (1979) 53 ALJR 552 at 329; 504; 554
In Minister for Immigration and Ethnic Affairs v Baker,[79] the Full Court of the Federal Court considered s 501(2) holding:
[79] (1997) 73 FCR 187; 153 ALR 463; 45 ALD 136; 24 AAR 457; Burchett, Branson and Tamberlin JJ
“… [A]n obligation to have regard to certain matters is not the same thing as an obligation to confine consideration to those matters. It is not conceivable that Parliament intended anything so unreasonable as a conclusion whether a person is now not of good character, based exclusively on his past criminal conduct, without regard to any recent good conduct, whether or not falling within the description of ‘general conduct’. So the words ‘having regard to’ and the disjunctive ‘or’ must not be given the effect of requiring a blinkered decision to be made on the basis of criminal conduct considered in isolation.
An obligation, in a statute, to have regard to specified matters when making an administrative decision may have the effect of requiring the administrator ‘to take [the specified matters] into account and to give weight to them as a fundamental element in making his determination’, but not to make it by reference to them exclusively: Re Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 623. …”[80]
[80] (1997) 73 FCR 187; 153 ALR 463; 45 ALD 136; 24 AAR 457 at 194; 469; 141-142; 463-464
These authorities show that the words “have regard to” or their equivalent must be interpreted and applied carefully according to the context in which they appear and the purpose for which the decision is being made. They do not necessarily signify that the matters specified are the only matters to be taken into consideration.
(3)Decision-maker required “to have regard” to guidelines set by another such as the relevant Minister
There are several examples to be found in connection with social security law. The broadest example arises under s 9(1) of the Social Security (Administration) Act 1999 (SSA Act). It provides that the “… Minister may prepare a written statement of the policy of the Commonwealth Government in relation to the administration of the social security law …” (policy statement). The Minister may give a copy of the policy statement to the Secretary and the Executive Director of the Social Security Appeals Tribunal (SSAT). In exercising powers under the social security law, an officer must have regard to the Minister’s policy statement[81] and so too must the Executive Director of the SSAT.[82]
An example more limited in its scope is found in s 541B(3B) of the Social Security Act 1991 (SS Act), which requires the relevant Minister, by legislative instrument, to “… set guidelines for the exercise of the Secretary’s discretion under subsection (3A)” when deciding whether a person is qualified for a youth allowance. Section 541B(3A) provides that, “In forming an opinion about whether a person is making a satisfactory progress for the purpose of … [deciding whether the person is making satisfactory progress towards completing an approved course of education or study] the Secretary is to have regard to the guidelines.”
There is no reason to think that the expression “have regard to” would be interpreted other than by reference to the principles I have touched upon in [53(2)].[83]
(4)Guidelines made by decision-maker for which there is no legislative requirement and of which there is no legislative acknowledgment
The Australian Citizenship Instructions (ACIs) are an example of guidelines of this sort. As is any decision-maker, the Minister:
“… is equally free, in point of law, to adopt such a policy in order to guide him in the exercise of the statutory discretion, provided the policy is consistent with the statute.”[84]
[81] SSA Act, s 9(3)
[82] SSA Act, s 9(4)
[83] Regretfully, I find myself a little at odds with the views expressed by Deputy Constance when, in Re Richards and Secretary, Department of Education, Employment and Workplace Relations [2011] AATA 116 at [17], he considered the Youth Allowance (Satisfactory Study Progress Guidelines) Determination 1998 (Guidelines) made by the relevant Minister under s 541B(3) of the SS Act. Their purpose, set out in cl 1.3, was to “… set out the guidelines for the exercise of the Secretary’s discretion under subsection 541B(3A) of the Act, to form an opinion about whether a person is making satisfactory progress for paragraph 541B(1)(d) of the Act.” Clause 2.1(1) provides:
“Satisfactory progress in a long course is completion of the course within a period of time comprising: (a) the standard minimum length of the course; and (b) an additional period for completion of one uncompleted subject or unit that is part of the course.”
Clause 2.1(2) reads:
“However, a person who, under subsection (1), is not making satisfactory progress, may, in the opinion of the Secretary, be making satisfactory progress if the person is, or has been, affected by circumstances beyond his or her control.”
Clause 1.6 of the Guidelines states:
“In considering whether a person is affected by circumstances beyond his or her control, the Secretary may have regard to the following kinds of circumstance:
(a) the person is, or has been, disabled by an illness or other medical condition;
(b) the person has suffered family trauma;
(c) the person has experienced a natural disaster;
(d) the person is obliged to relocate, necessitating repeating part of a course of study, or starting a course again (because of the requirements of the educational institution concerned);
(e) the person has caring responsibilities for another member of the person’s family;
(f) any other exceptional circumstance that interferes with the person’s ability to complete a course of education or study within the standard minimum length of time.”
It is against this background that Deputy President Constance said at [17]:
“The Guidelines are contained in a legislative instrument, and are therefore part of the law which I am bound to apply – I refer to the Secretary, Department of Primary Industry and Energy v Collins [1992] FCA 61; (1992) 26 ALD 265.”
I agree that the Guidelines are part of the law and that the Tribunal is bound to apply the law but I do not agree that this is the beginning and end of the matter.
The first difficulty that I have with the statement is that the mere fact that the Guidelines are made in the form of a legislative instrument is not determinative of how they are to be understood and applied. They are “binding” in the sense that regard must be had to them but the extent of that regard is to be assessed according to principles such as those to which I have referred in [53(2)].
The second difficulty that I have with the statement is that the case of Secretary, Department of Primary Industry and Energy v Collins cannot be regarded as relevant to the issue. It concerned a plan of management determined under s 7B of the Fisheries Act 1952. Heerey J decided:
“ Parliament clearly intended that a plan of management determined by the Minister under s 7B should create detailed rights and obligations in relation to a fishery. … The provisions of the Acts Interpretation Act concerning tabling before and disallowing by Parliament are to apply.
Thus a plan of management stands on quite a different legal footing from policy statements or guidelines. The Minister and the Secretary, like all other citizens, are bound by the law contained in a plan of management just as they are by the law in the Act itself. The AAT when reviewing a decision of the Minister and Secretary is in no different position.” [1992] FCA 61; 34 FCR 340; 106 ALR 351; 26 ALD 265; 15 AAR 184 at 345; 356; 270; 189
The important point made by Heerey J was that the plan of management was not a guideline or a statement of policy. It was not a document to which the Minister or Secretary “would have regard”. Rather, while that plan of management remained in force for the particular fishery, the Minister and the Secretary were required to “… exercise their powers in accordance with the plan of management, and not otherwise.”: Fisheries Act 1952, s 7B(8) (emphasis added).
[84] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640 per Brennan J, President and see also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590; 70 per Bowen CJ and Deane J and at 602; 80 per Smithers J
C.The role of policy and guidelines that do not have a legislative basis
It is apparent from the examples I have given that some guides or guidelines are intended to cover the field. There is no room for a decision-maker to go outside their parameters in making decisions. The Guide prepared under the SRC Act is an example. Others require that regard be had to them but do not otherwise limit the matters to which a decision-maker may have regard provided those matters are consistent with the legislation under which the decision is made. Guides prepared under social security legislation may fall within this category.
It is with guides that are not prescribed by legislation that concerned Brennan J as President of the Tribunal in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (Drake No 2) and the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs[85] (Drake). In Drake No 2, Brennan J explained the reason for adopting a policy in relation to decision-making:
“… It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.”[86]
[85] (1979) 24 ALR 577; 2 ALD 60 Bowen CJ, Smithers and Deane JJ
[86] (1979) 2 ALD 634 at 640
While acknowledging the importance of policy, Smithers J had said in Drake:
“ In the performance of the Tribunal’s function it is essential that a policy adopted by an administrator should be under review to the same extent as his evaluation of relevant matters and his general process of reasoning, not for the purpose of deciding whether it was reasonable for the administrator to make the decision he did, but for the purpose of deciding whether, by the objective standard of good government it was the right decision to make.”[87]
The views of Smithers J were consistent with those of Bowen CJ and Deane J[88] and developed by Brennan J in Drake (No. 2):
“ Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976) 136 CLR 1; Drake’s case, supra, at 589, and the cases there cited). …
That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power. (see British Oxygen Co v Board of Trade [1971] AC 610 at 625 and 631). Lord Denning referred to the distinction in Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 at 626, where he said:
‘I take it to be perfectly clear now that an administrative body, including a licensing body, which may have to consider numerous applications of a similar kind, is entitled to lay down a general policy which it proposes to follow in coming to its individual decisions, provided always that it is a reasonable policy which it is fair and just to apply. Once laid down, the administrative body is entitled to apply the policy in the individual cases which come before it. The only qualification is that the administrative body must not apply the policy so rigidly as to reject an applicant without hearing what he has to say. It must not “shut its ears to an application”: see [1971] AC 610, 625 per Lord Reid. The applicant is entitled to put forward reasons urging that the policy should be changed, or saying that in any case it should not be applied to him. But, so long as the administrative body is ready to hear him and consider what he has to say, it is entitled to apply its general policy to him as to others.’”[89]
[87] (1979) 2 ALD 60; 24 ALR 577 at 80; 602
[88] (1979) 2 ALD 60; 24 ALR 577 at 70; 589
[89] (1979) 2 ALD 634 at 640 at 640-641
The principles in these passages mean that the guidelines and policy adopted by a decision-maker must accord with the law. Therefore, the Tribunal cannot simply apply policy of guidelines such as the ACIs but must consider whether it or they accord with the law. If they do, they should inform the Tribunal of the standards and values that the decision-maker considers important in making a decision of that sort. They should be applied unless there is a very good reason to depart from it. This encourages consistency of the decisions made under a particular power and promotes a sense that decision-making will be fair.
D.The ACIs
The ACIs have been issued by the Department of Immigration and Citizenship (Department) and are part of its centralised departmental instructions system. 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.”[90]
[90] ACIs, Introduction at 1
Chapter 10 of the ACIs is concerned with the good character requirement. It begins with an overview and sets out two passages said to be from “Clough v MIMA”. This would suggest that it is from a judgment of the Federal Court but I have been unable to find such a case. The only case that I have been able to find is a decision of Deputy President Hotop and Senior Member Sweidan in Re Clough and Minister for Immigration, Multicultural and Indigenous Affairs[91] (Clough). In that case, the Tribunal quotes the two passages appearing in the overview in Chapter 10 but specifically acknowledges that they are taken from Irving. They are part of the passages I have set out from the judgments of Lee J and Davies J in [44] and [46] above.
[91] [2005] AATA 1158; Deputy President Hotop and Senior Member Sweidan
After observing that the expression “good character” is not defined in the AC Act and must be given by its ordinary use, Chapter 10 then states:
“It is the responsibility of the applicant to show that they are of good character. If a decision maker is not satisfied that an applicant is of good character at the time the application is to be decided, the application must be refused. There is no legislative provision to defer an application made under the Act.”[92]
This is followed by a note relating to another provision and there then appears the paragraph:
“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. … 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.”[93]
[92] ACIs, Chapter 10 at 156
[93] ACIs, Chapter 10 at 156
The two passages seem inconsistent in so far as the first suggests that an applicant for citizenship carries some form of burden to establish his or her good character and the second does not. That the ACIs are drafted on the basis of the applicant’s having a burden of proof is apparent from this passage in Chapter 10:
“A person’s behaviour as evidenced by a criminal record is relevant to the assessment of character. Appropriate weight must be given to a person’s behaviour immediately prior to the making of a decision.
A reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.
The applicant’s behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors that may be taken into account include whether or not the applicant has stable employment, their status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights.
The onus is on the applicant to demonstrate that there has been a change in their character since last offending.
The applicant’s present reputation in the community should also be considered. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the applicant for citizenship.
Decision makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person’s criminal background, and attest to a change in character since, should be given considerable weight.”[94]
[94] ACIs, Chapter 10 at 136
I have several difficulties with this passage, including that relating to onus:
(1)For the reasons I have given above, it seems to me that the ACIs are incorrect when they state that the “onus is on the applicant to demonstrate that there has been a change in their character since their last offending.”[95] At most, it will be in an applicant’s own interests to produce all relevant material to demonstrate good character but, contrary to what the ACIs suggest, there is no onus to do so.
(2)The ACIs speak of the applicant’s demonstrating “a good reputation in the community”. Evidence to that effect may have a place but this passage of the ACIs could be read as suggesting that reputation is indicative of good character when the Federal Court has clearly said that enduring moral qualities, and not reputation, are indicative of good character.
To the extent that this passage suggests that, it is contrary to the two passages reproduced at the beginning of Chapter 10 and attributed to Clough as I have noted at [59] above.
(3)Reference is made to statutory declarations that acknowledge a person’s criminal background and attest to a change in character since should be given considerable weight. That statement would be unexceptional if it did not suggest to a decision-maker that a person must necessarily be presumed to be not of good character because he or she has a criminal conviction. I fear that it does suggest that when read with the first two paragraphs I have included in the passage from the ACIs.
If it does, it fails to draw the decision-maker’s attention to the fact, commented upon by Davies J in Irving,[96] that “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.” Not every crime does so.
(4)No reference is made in the passage to the person’s behaviour before having committed any offence. This may well be relevant in setting the context in which an offence occurred. That context may reflect on a person’s enduring moral qualities no less than the offence and the person’s actions after that offence.
[95] See [.30]-[38] above
[96] See [46] above
The difficulties that I have identified discourage me from accepting, without qualification, the submission that decision-makers will ordinarily apply policy such as the ACIs unless its application produces an unjust decision in the circumstances. It seems to me that Chapter 10 of the ACIs contains guidelines of the sort that were envisaged by Davies J in Irving. That is to say, they have the air of having been written for decision-makers required to make decisions regarding good character in respect of persons who are overseas and about whom it is difficult to obtain detailed material. Understandably, the material may tend to be focused on the person’s reputation at that stage and this appears to be a primary focus of the ACIs. The authorities to which I have referred, however, focus on a person’s enduring moral qualities. A person’s reputation will be relevant evidence but certainly not determinative of that issue. Of relevance will be all aspects of the person’s behaviour in the search for his or her enduring moral qualities. To the extent that the ACIs do not make this clear, I do not propose to follow them.
CREDIBILITY
Both Mr Gerkens and Mr Eteuati referred to the credibility, or lack of credibility, in this case. Except in so far as a submission of that sort addresses an issue of whether or not a person is telling the truth and that issue is a relevant issue or sub-issue to be decided,[97] I have always struggled with accepting the words “credibility” or “credible” as part of an appropriate description of the task that is required in most cases of merits review.[98] I have always rejected the description of cases as “credibility cases”. That is not because of the meaning of the words themselves but because the adjective “credible” tends to be used to qualify the noun “witness” or “person” rather than the evidence they give and because the description of a case as a “credibility case” masks what is entailed in the task of merits review.
[97] Truthfulness may be a sub-issue in deciding whether an applicant is of good character under s 21(1)(h) of the AC Act.
[98] The Tribunal is not bound by the rules of evidence: Administrative Appeals Tribunal Act 1975, s 33(1)(c). In those courts and tribunals in which the rules do apply, I note that Part 3.7 of the Evidence Act 2005 (Evidence Act) makes provision for credibility evidence, which is evidence relevant to the credibility of a witness or other person.
To explain, I will be begin with the ordinary meanings of the word “credible” are:
“… 1. capable of being believed; believable. 2. worthy of belief or confidence; trustworthy. …”[99]
Like Mr Lam, Mr Stephen Wong was in the hearing room during most of Mr Eteuati’s cross-examination of Mr Zheng. Mr Wong is a tax accountant. In his written reference, Mr Wong wrote:
“Dawei has approached me to provide him with a character reference as a close and long time friend.
I have known Dawei for over five years as we attended Wesley College high school together.
As a good friend of Dawei for many years, I am well aware of his past behaviour and actions which have got him into trouble. I have no doubt that he fully regrets the decisions he made on that day and I recall for a period of time he was sad, not knowing what the future hold for him. However, through encouragement from his friends and family Dawei has since changed for the better, turning his life for the positive. This is exhibited through his numerous awards in high school and his studies in university while helping his family’s business.
He is currently studying at Monash University, completing his double degree in business commerce and communication. Having attended Monash University myself and completed a business degree, I commend Dawei on his efforts and ability to stay focused and i [sic] have no doubt that he will complete his degree with flying colours.
I believe that Dawei was an asset to the community of Australia because of his honest and trustworthy personality and his skills and knowledge in and outside of his field of study.”[132]
[132] Exhibit M
When asked whether he had been friendly with Mr Zheng at Wesley College, Mr Wong replied “Not as such”. He had begun talking with him recently. When Mr Zheng returned from Japan, the two had started being good friends. They see each other once a week for a coffee. Before that, Mr Wong had known nothing about the offences. Mr Wong found out about them when he was asked to write a character reference. The knowledge of the offences did not change his view of Mr Zheng for he had always known him to be a good-hearted person but he was shocked.
CONSIDERATION
Evidence of good character: what weight do I give it?
Mr Cummins concluded his report by stating that he had not assessed Mr Zheng as currently having any psychological problems and did not diagnose him as suffering from any clinical disorder. He concluded that, in his:
“… clinical opinion Mr Zheng would be assessed as being of good character. I would not expect him to re-offend. He reports having the ongoing support of his parents who are fully aware of his intention to pursue a review of the refusal of his Australian citizenship via the AAT.”[133]
[133] Exhibit L at 5
Under the Evidence Act, evidence of an opinion is not inadmissible on the sole basis that it is about a fact in issue or an ultimate issue.[134] As I have already noted, the Tribunal is not bound by the rules of evidence. Part 3.3 of the Evidence Act is concerned with opinion evidence. Generally, such evidence is not admissible to prove the existence of a fact. An exception is made, however, if the opinion is expressed by a person who has specialised knowledge based on training, study or experience and the opinion is based wholly or substantially on that knowledge.[135]
[134] Evidence Act, s 80(a)
[135] Evidence Act, s 79
Mr Cummins is clearly qualified as a psychologist and has extensive experience in that profession. He extensive experience in psychological evaluations in a broad range of contexts and for a broad range of purposes. He has appeared as an expert witness in many of the Commonwealth and State courts and tribunals. Mr Cummins lectures intermittently at Melbourne’s universities. He has co-authored the book “Psychological Evaluations for the Courts – a handbook for mental health professionals and lawyers”.[136]
[136] 2nd edition, Guildford Press, 1998
In cross-examination, Mr Cummins agreed with Mr Eteuati that a person’s good character is not something that is measured in psychology. The effect of Mr Cummins’ evidence was that he had concluded that Mr Zheng was of good character because he did not have a personality disorder, his offending was connected with his age, peer group association and separation from his girlfriend and his offending was not associated with alcohol or drugs. Had he assessed Mr Zheng as having a personality disorder, he would have had to have made further enquiries to assess whether or not he was of good character. Mr Cummins agreed with Mr Eteuati that it is possible for a person to have no personality disorder and yet not be of good character.
On the basis of Mr Cummins’ evidence, I am not satisfied that his expertise in assessing good character has been established. His undoubted and unchallenged qualifications in psychology were not questioned and I do not call them into question either. Nor do I call into question his expertise relating to a person’s likelihood of reoffending or of recidivism. What I do not think has been established is his expertise in assessing good character. As Mr Cummins acknowledged, good character is not measured in psychology. I have no evidentiary basis on which I am satisfied that Mr Cummins’ expertise in that field qualifies him as an expert in the assessment of good character.
That is not to say that Mr Cummins’ evidence is of no value. It is of value in so far as it relates to areas that have been established to be within his field of expertise i.e. psychological assessment and risk of re-offending.
Good character
I have set out the judicial authorities regarding the meaning of “good character”. Their focus is upon the enduring moral qualities of a person but by what standard are those enduring moral qualities to be identified and assessed? The ordinary meanings of the word “moral” include:
“… 1 belonging or relating to the principles of good and evil, or right and wrong. 2 conforming to what is considered by society to be good, right or proper; ethical. 3 adhering to or based on conscience or a knowledge of what is right. …”[137]
[137] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
It would seem, then, that the authorities are drawing attention to a person’s ability to know what society considers good, right and proper and to conduct him or herself in a manner that accords with society’s values. I gain some assistance in identifying what society considers good, right and proper from the Preamble to the Act. After recognising that Australian citizenship represents full and formal membership of the Australian community, the Preamble states that citizenship is a common bond, which involves reciprocal rights and obligations and unites all while respecting their diversity. The Preamble goes on to state that persons upon whom Australian citizenship is conferred:
“… enjoy these rights and undertake to accept these obligations:
(a)by pledging loyalty to Australia and its people; and
(b)by sharing their democratic beliefs; and
(c)by respecting their rights and liberties; and
(d)by upholding and obeying the laws of Australia.”
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do. Keeping out of trouble is one way in which a person may show that he or she is of good character. Doing good works and acts of kindness may be another. How a person behaves when trouble finds them or they are confronted by situations that make them uncomfortable may be yet another. The ways are not finite.
Mr Zheng’s character
Mr Eteuati attempted to make something of the differences between Mr Zheng’s description of what happened when he committed the offences and the description of events in Case Progress Narrative. That was always going to be a difficult task for the Case Progress Narrative is a summary of other people’s evidence. It has no special status and I accord it no special weight. It is not my task to ascertain the precise facts of the offence. I cannot go behind the convictions themselves and question whether they were properly reached. I cannot question whether the essential elements of each offence were made out and must accept that they were.[138] Against that background, the discrepancies between Mr Zheng’s description of events and those in the Case Progress Narrative by the Victorian Police[139] become irrelevant.
[138] See Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673; 33 AAR 1 at [41]-[45]; 325-6; 684-685; 14 per Branson J for a summary of the law relating to the way in which an administrative decision-maker may have regard to a conviction and the facts on which it is based.
[139] Exhibit 1
What is more worrying is Mr Zheng’s assertion in his letter of 6 December 2010 that he did not take the boy’s wallet or mobile phone and his repetition of that to Mr Cummins, who noted it in his report. In cross-examination, he said that this was not true and that he had taken them although at the request of the rest of the group. This suggests that he was not willing to admit the full extent of his wrong doing at the time he wrote his letter last December.
Mr Zheng is to be commended for removing himself from his circle of friends after he committed the offences. That showed a strength in his character but it is not necessarily indicative of the whole of his character. On the basis of his own evidence, I find that he did not tell his parents what he had done. At one level, that is very understandable. I accept that he was ashamed and deeply distressed that he had let his family and himself down. At another level, his behaviour could show a willingness to shoulder his wrongdoing on his own without worrying his parents. That could also be commendable in some circumstances but it could also be seen as not facing up to what he had done. It seems to me that it is in that latter light that Mr Zheng’s reticence should be viewed for he did not tell his parents of the offences until he was confronted by the police.
On the basis of his own evidence, I find that Mr Zheng has continued to display a similar trait in relation to his application for citizenship. I accept his evidence that he was confused by Question 29(a). He knew that he had not been convicted of any offences in the Children’s Court. In giving evidence, Mr Zheng said that he had little recall of the events in the Children’s Court. That may be so and I do not reject his evidence but, whether he remembers what he pleaded on the day or not, he knew that he was guilty of the charges against him. As he told me, Mr Zheng knew from his solicitor that, if he were asked if had ever been charged, he had to reveal that he had been. If he were asked if had ever been convicted, he could properly deny having been. I accept that he and his solicitor had never discussed what he should say if he were asked whether he had ever been “found guilty”.
Being confused by a question and answering “No” to it when the answer should be “Yes” is not necessarily tantamount to lying but, in this case, it is indicative of Mr Zheng’s not wanting to accept and face what he had done. He accepted at the hearing that he should have asked what the question meant. The fact that he did not reveals an approach to his application that was not willing to ensure that he fully understood the substance of the question and so of his obligation to answer it correctly.
I accept that Mr Zheng might not have received the Departments’ email in December 2009 regarding his citizenship application but, on the basis of his own evidence, I accept that he received the December 2009 and the January 2010 emails at the same time. That was in approximately January 2010. I do not accept his explanation that he could not reply to the emails because he could not download their attachments in a form in which he could complete them. Whether he could download the attachments or not, he could have replied to the emails once he had received them if only to advise the Department that he was having difficulty with the attachments. If he could read the emails, he could reply to them. It was clear from the Subject line of the emails that they concerned his citizenship application.
I note that Mr Cummins reported that Mr Zheng had given him a different explanation for failing to respond to the emails. That explanation was that he had difficulty doing so because he did not have access to the relevant information whilst studying and living in Japan. As this alternative explanation was not put to Mr Zheng, I do not make any finding, adverse or otherwise, on the basis of his reported explanation. If it were an accurate explanation of his failure to respond to the emails, it does not satisfactorily explain why he could not reply to the emails to that effect.
Mr Zheng might, as he said, have understood that his application would not be processed until he returned to Australia after six months in Japan. His understanding, though, does not excuse his failure to respond to the Department’s emails, if they were all that he could open, or its letters, if he opened them on the emails. Clearly, the Department thought that it was doing what it was meant to do by considering his application. Certainly, the Minister could not make a decision that Australian citizenship be conferred unless Mr Zheng were in the country but the Department properly proceeded to check the statements made in the application. If Mr Zheng thought that this did not accord with his understanding of what was to happen with his application, he should have contacted the Department. The one telephone call that he made to the Department does not constitute an adequate attempt to find out why the Department was processing his application when he understood that it would not do so for six months.
Mr Zheng’s actions in relation to the fact of his having offended cause me more concern than the offences themselves. On the basis of the evidence of Mr Zheng regarding his feelings of shame about his behaviour and the expert evidence of Mr Cummins, I am satisfied that he is unlikely to offend in that way again. What concerns me is that he has not yet gained an understanding that Australians expect compliance with, and observance of, all of its laws and openness in their dealings. Some of those laws are criminal but, in the course of daily living, many of the laws are those regulating entitlements and privileges. An application for citizenship is but one example of a situation in which an applicant for a privilege is expected to comply with the law and to be open.
Mr Zheng’s character referees have not lessened my concerns in this regard. Although Mr Wong’s letter reads as if he has been Mr Zheng’s close friend for a long time and as if he knew about Mr Zheng’s offences for a long time, these proved to be false impressions when he gave his oral evidence. I accept their evidence that Mr Zheng and Mr Wong meet for coffee and a chat once a week. People may only speak once a week or even far less often and describe themselves as, and be, good friends. I do not doubt their current status but I do not accept that they have been good friends for a long time. On the basis of Mr Wong’s oral evidence, I find that he barely knew Mr Zheng while they were at Wesley College. They have only become friends since Mr Zheng returned from Japan in the middle of 2010. Mr Wong’s letter suggests that he knew about Mr Zheng’s past offences and had done for some time. That suggestion was dispelled when he gave evidence for he then said that Mr Zheng had only told him of the offences when he asked him for a character reference. Given that the character reference is dated 10 March 2011, it is to be presumed that the request was made only a relatively short time before that.
Mr Lam’s reference was more carefully worded. I find that he has known Mr Zheng and his family for a number of years. He has a high regard for Mr Zheng and sees his offending as having been out of character. I accept his evidence that Mr Zheng is a caring young man with strong family values.
The evidence of Mr Zheng’s referees does not remove my concerns about the manner in which Mr Zheng has behaved in relation to Question 29(a) and his dealings with the Department. I accept that he has kept out of trouble with the law since 2005. I accept that he is caring and responsible within his family and with his friends but I do not accept that he has yet understood that the Australian community expects him to show some of that care and responsibility in his wider dealings with its people and institutions. He needs to understand that it can forgive transgressions, such as the offences he committed in his youth, but that it expects him to acknowledge and take responsibility for his past actions when circumstances require it. The way in which I have found Mr Zheng behaved when confronted by Question 29(a) of the application form and when he became aware of the Department’s emails show that he has not understood that aspect. His behaviour to date is not consistent with that of a person who will act openly and honestly in his dealings with the Australian people and its institutions in the future. For the moment, I am not satisfied that Mr Zheng is a person of good character as that term is understood in the Act.
My decision does not meant that Mr Zheng cannot change his behaviour or that he will always be seen in this light. I would fervently hope that neither is the case. There is nothing to prevent him from making a fresh application in the future when he has gained greater maturity and understanding of the Australian community and its values.
For the reasons I have given, I affirm the decision of the respondent dated 8 June 2010.
I certify that the one hundred and thirty four preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Leah Berardi, Associate
Date of Hearing 14 April 2011
Date of Decision 10 May 2011
Counsel for the Applicant Mr M Gerkens
Solicitor for the Applicant Ms A Romer
FCG Lawyers
Solicitor for the Respondent Mr T Eteuati
Clayton Utz
“ We believe that most judges attempt to ‘reach their decisions utilizing facts, evidence, and highly constrained legal criteria, while putting aside personal biases, attitudes, emotions, and other individual factors.’ … Despite their best efforts, however, judges, like everyone else, have two cognitive systems for making judgments – the intuitive and the deliberative – and the intuitive system appears to have a powerful effect on judges’ decision making. The intuitive approach might work well in some cases, but it can lead to erroneous and unjust outcomes in others. The justice system should take what steps it can to increase the likelihood that judges will decide cases in a predominantly deliberative, rather than a predominantly intuitive, way.
In his recent book, How Doctors Think, Dr Jerome Groopman observes that ‘[m]uch has been made of the power of intuition, and certainly initial impressions formed in a flash can be correct. But as we hear from a range of physicians, relying too heavily on intuition has its perils. Cogent medical judgments meld first impressions – gestalt – with deliberate analysis.’ … Like cogent medical judgments, cogent legal judgments call for deliberation. Justice depends on it.”
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