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Should Checkered Migration History Be Obstacle to Citizenship?
Will having a “checkered” immigration history prevent a person from becoming an Australian citizen?
Will living in Australia for more than 20 years as an unlawful non-citizen, working unlawfully, and not paying tax on earnings, cause a citizenship application to be refused?
What if the applicant ultimately does gain lawful status?
These issues were all presented in an interesting citizenship decision that was handed down on 16 August 2017 by the Deputy President of the Administrative Appeals Tribunal, JW Constance: Britos and Minister for Immigration and Border Protection (Citizenship) (2017) AATA 1282.
The factual background of the case was that the applicant, who was born in the Philippines in 1959 and is a citizen of that country, originally entered Australia in January 1989. At that time he had been working as a mechanic on a merchant vessel. He was granted “shore leave” from the ship, did not return to the ship, and remained in Australia.
The applicant married an Australian citizen in 2008, was granted a bridging visa in connection with an application for a Partner visa in December 2009, and was granted permanent residency in 2011 (presumably by way of a Subclass 801 Partner (Residence) visa.
The citizenship application was lodged in November 2015, a little bit less than 4 years after the applicant had been granted permanent residency.
So the central question in this case was whether the applicant could be considered a person of “good character” within the meaning of the Australian Citizenship Act, so that he could therefore satisfy the eligibility requirements specified in section 21(2)(h) of the Act.
Although the term “good character” is not defined in the Australian Citizenship Act, it has consistently been interpreted, in light of the decision of the Federal Court in the case of Irving v Minister for immigration, Local Government and Ethnic Affairs to refer to the “enduring moral qualities” of the person and not to the “good standing, fame or repute of that person in the community”. In other words, Irving calls for an “objective assessment” of the person’s character, and not a “subjective” test of the person’s “reputation”.
Additionally, the Citizenship Policy provides (in Chapter 11) that the qualities that a person of “good character” would be expected to have would include respecting and abiding by the laws of Australia, and not having “evaded immigration control”.
In the applicant’s favour in this case was that he had not committed any offences since becoming a permanent resident in 2011; that he had been employed and had paid tax on his income since becoming a permanent resident; and that he was able to provide positive character references from the owner of the bakery where he worked and from the pastor of his church.
Unfortunately for the applicant, these factors were not sufficient, in the view of the Deputy President, to justify the approval of the citizenship application.
The Deputy President was troubled by the applicant’s immigration history, specifically his knowledge when originally entering Australia in 1989 that he was required to have a visa; his knowledge that he had no right to work in Australia without a visa; and his failure to make any attempt to return to Australia after the bridging visa he had been granted in connection with an unsuccessful application for a Protection visa had expired.
Also weighing against the applicant was that he had worked in various sod jobs in Australia on a “cash basis” for over 20 years and his failure to submit a tax return; the Deputy President took the view that this conduct did not “conform to the values of Australian society”.
It also hurt the applicant’s case that he provided a statement to the Tribunal in which he gave evidence that he had left his ship in 1989 because he needed to support a younger brother who was “still in school”, when in actuality his youngest brother was 24 years old at the time. The Tribunal characterized this evidence as “misleading”.
So in the end the Tribunal affirmed the refusal of the citizenship application.
What do you think of this outcome? Should the Tribunal have given as much weight as it did to the fact that the applicant had lived and worked in Australia for a prolonged period of time as an unlawful non-citizen, without paying tax? Or should it have given greater weight to his apparent “rehabilitation” since gaining permanent residency, as evidenced by his marriage to an Australian citizen, his “regularization” of his status by obtaining a Partner visa, and his being productively employed?
Undoubtedly, the applicant in this case is not the only person in Australia with such a history; should such persons forever be prevented from becoming Australian citizens?
Comments
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Thursday, 24 August 2017It's not a sad story. He had every chance to contribute to Australia. He never paid tax on earnings. If he had donated the equivalent to people in need then his character would have been more forgiving. Honesty gives a person credibility and the fact he lied shows his poor character. The fact that he married an Australian should not give any right to become a citizen. Deport him and never allow him to return. Tax dodger, false past given, and entered illegally. Too many faults to warrant good character. Cash economy needs to be stopped.
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Thursday, 24 August 2017
Now that I look at the issue again, I wonder why Michael bothered with the original post. The applicant does not appear to be resident material, never mind citizenship. Maybe I missed Michael's point. This case smells of getting married to secure one's residency and citizenship. The applicant is no more credible than that in Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366 (24 March 2017). On the other hand, just reading the positive attitude of the Member in Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086 (13 July 2017) speaks volumes about the vital differences in these cases.
I would repeat my question to Michael: would you take his case on a pro bono basis?
Again, I mention "forever." No one is barred forever from further applications and further appeals. -
Thursday, 24 August 2017
A short note to respond to the comments above:
1. Why bother with the original post? Because the case raises a serious and consequential issue, in my view: should a person who has a lengthy history of residing in Australia as an unlawful citizen, but who subsequently regularises her/his visa status to become lawful, be permanently barred from Australian citizenship? In my view, the answer to that question is a categorical and emphatic "NO!!!!!!!!". I do not believe that a person who has been "unlawful" should be kept "permanently in the shadows". The AAT decision makes it clear that this applicant did regularise his status, apparently through a Partner visa and did reside in Australia as an apparent law-abiding, tax-paying person for several years after he gained permanent residency status. There is no indication in the AAT decision that he had any other history of unlawful conduct save for not paying taxes and his immigration history of being "unlawful". I do not think it is fair to assume, as is suggested in one of the comments, that the applicant married only for visa purposes. We simply do not know that is the case, and even if it is, my answer is: that does not matter, there is case law that says that the motives of persons entering a relationship are irrelevant to whether the applicant satisfies the criteria for the grant of a Partner visa. What des matter here in my personal view is that this applicant did ultimately regularise his status and he had a history of several years of living in Australia as a law-abiding person, and thus in my opinion his past history doesn't preclude a finding of good character. Whatever happened to the concepts of rehabilitation, redemption, and Australia as the land of the proverbial "second chance".
2. As for the other comment: the AAT decision does record that the applicant did pay tax on his earnings after gaining a Partner visa, which he had held for 6 years prior to the citizenship application. We cannot presume that thisperson made no contribution to Australia during his years of living here unlawfully - the record indicates he undertook undesirable, menial work that is nonetheless socially necessary. As for "deport him and never allow him to return" because he was in the commenter's words, a "tax dodger" - there is no indication in the AAT record that this person had a substantial criminal record or otherwise failed the character test under section 501(6) of the Act, so there is no basis for "deporting" ((stated in legally correct terms, "removing") him. The comment appears to me to be driven to some extent by general animus against migrants, sorry but that's just the way it sounds to me, its "Trumpesque".
As for "why bother" posting anything about this case: I choose topics and cases for this site because I think they will raise interesting or controversial issues that will generate thought or discussion, or that are of general interest to people working in the migration field and might serve to help those in this field to serve their clients better and in a more informed way.
I don't expect or desire readers to agree with my perspective, and that is absolutely fine.
However this case did seem to raise an interesting question concerning the character test under the Citizenship Act.
And to answer the question "would I act for this applicant", the answer is a categorical "YES!!!". I do happen to believe that people can change and rehabilitate themselves, and I do not believe that having a checkered migration history would necessitate the refusal of a citizenship application.
Everyone is entitled to their opinions on this case and you're free to disagree if you choose!· Emma - Hungerford likes this comment. -
Friday, 25 August 2017
Hi Michael. Overstaying a visa is now being taken to great heights by Immigration. Judgement if these prople l, whilst it might seem to many to be their right, is unfair and in this case a contradiction to the law applicable when he became illegal.
At that time he was eligible to apply for permanent residency as an absorbed person if he has been bere illegally for 10 years. The law allowed it and made a pathway for it.
How can they bow assess this as illegal? And a character problem when at one time it was Law. That time being when he arrived.? -
Thursday, 24 August 2017
Please also see my recent article on the Kerris case. In my view, people can make mistakes, especially when they are young, but at any age, but they can also reform their conduct and lead highly productive contributing lives. In my opinion, people who do have some history of unlawful conduct or bad immigration history should not definitionally be barred from getting a visa or citizenship. Let's not forget that refusal of a visa or of citizenship on character grounds is a matter of discretion, it is not mandatory!
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Thursday, 24 August 2017
The question was not would you act for this applicant. The question was would you take his case on a pro bono basis?
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Thursday, 24 August 2017
Michael Arch.
Just because my view is different, doesn't mean you are right. Not paying taxes is a big issue. Otherwise I should be compensated for taxes I have already paid. That would be a deposit on a house. My wife was corporate bullied and lost over $3M in revenue and I have messaged a number of lawyers to represent her. All have declined as we requested pro bono. Let's see if someone here will step up to the plate, or will you fight for illegals doing the wrong thing then having a change of heart because now they want to marry an Australian. We have lost our lifestyle, struggled to make ends meet and don't know if we can afford the next bill. We lost our house and almost our marriage. So why should people like this get any representation when struggling families who pay taxes, abide by the laws of this country and do what is right and get screwed over by these criminals. Let's see how many of your profession get back to me and fight for what is right. -
Friday, 25 August 2017
Brad: how many Australians are guilty of offences feom driving to parking and non payment of taxes. If you are a migration agent you see them every day and process their visas. How many people, Australian Citizens, receive cash and do not declare it. Should we treat tem differnetly and remove citizenship from them?
This is not about free representation it is about fairness and equality in the migration law.
Is it fair to accept an application knowing it will fail and charge the applicant anyway?
Is it fair to have two rules for the same assessment? Character Test? -
Friday, 25 August 2017
i say it was a fair decision, 20 years of illegal activity cannot be easily overlooked. He knew everything he did was wrong. I do not believe he should ever get the gold pass citizenship.
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Friday, 25 August 2017
I think you are doing great Michael. You can't please everyone but just so you know I appreciate your time and the contents you have selected.
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Friday, 25 August 2017
This person would have been eligible for the absorbed person visa after his first10 years illegally in Australia. He obviously was not aware if this so many yeara ago.
Given this was part of our legal migration options under the migration law at that time it seems contradictory that we can give Permanent Residency and meet ths character test then refuse Citizenship for failing the character test for actions undertaken prior to the Permanent Residency grant.
Does this mean immigration is allowing people of poor character to be granted Permanent Residency. Why the difference between citizenship and Permanent Residency character tests. Both are legally entitled to remain indefinitely in Australia.
Immigration, i believe, has lost the plot over the last few years.
We have objective rules for decision makers. How can that promote procedural fairness?
Applicants are at a loss because there is no specific information posted about what is and is not acceptable when applying.
Pure guess work so much of the time in how a case officer will assess the information.
This is not the case with many other countries and since we are a first world country we should be leaders in fairness and open disclosure, not entrapment for people applying when they have no chance of success but are still encouraged to pay the fees to the government so they can be refused. -
Friday, 25 August 2017
Brad Halicek
I think you missed the point. What Michael is saying was that regardless of his past conduct if the person has reformed and rehabilitated this should mitigate in his favour. We all have made one mistake or the other but this should not be used against us to the extent of denying us citizenship. Most people have committed far worst crimes but have been granted visas on discretionary grounds. -
Friday, 25 August 2017
20 years illegal is not a small mistake.
Immigration law is complex and needs to be. This is why there are immigration lawyers and migration agents to advise. -
Sunday, 27 August 2017
I wish to thank Michael Arch for posting this stimulating article and I also agreed with the sentiments expressed by Paul O in this case.
Many unlawful non-citizens (non-refugees) have been granted Permanent Resident status (PR) through a variety of visas and obviously and at the time of grant, the issue of bad character has not be been raised otherwise they would not have been successful. By granting them PR would imply that all is forgiven and if the person remains law abiding after a grant of PR, and in principle, he/she should not be judged again, in a retrospective manner. Such action may be almost be analogous in having a similar charge against a person who was acquitted for the same crime without fresh evidence. If the applicant had a serious criminal past which was not revealed, the PR visa may be cancelled without the need to consider the citizenship application.
This case is worth challenging in the Federal Court for 2 reasons, (a) that this decision creates a unfair precedent in judging a person’s character retrospectively where there is no serious criminal record or adverse findings in terms of national security; and (b) the decision does not argue well for consistency in the interpretation of the current relevant sections of the (Citizenship) Act and its associated findings when many applicants were granted citizenship with similar backgrounds.
Perhaps, this may be a good case for Ministerial intervention if the Act allows it.
If it is the intention of parliament to have the test of character applied continuously to PR and subsequent citizenship applications, then the Act should be amended to make it more explicit. -
Tuesday, 29 August 2017
The bar for citizenship is far higher than for PR and so it should be. Leaving a person with a serious negative history on PR gives a chance for their PR to be cancelled if they offend again. It is far harder to cancel citizenship. Maybe, just maybe down the track he may be able to show he has proven himself worthy of the world gold class citizenship.
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Tuesday, 29 August 2017
Hello Tony, thanks for the well thought out post. This is one of Michael Arch's best potboilers. You say "This case is worth challenging in the Federal Court for 2 reasons, (a) that this decision creates a unfair precedent in judging a person’s character retrospectively..."
All character judgements are retrospective. We know a person by his past actions not his present pleadings. We judge the prospective by the retrospective.
"[T]he decision does not argue well for consistency in the interpretation of the current relevant sections of the (Citizenship) Act and its associated findings when many applicants were granted citizenship with similar backgrounds."
There are 41 recent cases (last 39 months). The ruling here is consistent with them all. Maybe I am misconstruing your point. Is there a particular case of which you are speaking where the decisive utterance was founded on the same facts?
I would like to have seen the outcome of an appeal in this case, but I would not want to be the lawyer to pursue it.
As for the point about "Such action may be almost be analogous in having a similar charge against a person who was acquitted for the same crime without fresh evidence," I agree. But that is what we do every day when we avoid interaction with convicted criminals or ask our kids not to hang around with troublemakers at school. It's simply a social decision to seek out the good and avoid the bad.
If you would like to start a crowd funding for pursuing a different judicial outcome for this applicant, I believe you might be able to raise the funds. I'll be interested to see how it turns out. -
Tuesday, 29 August 2017
Its sad that he didn't the citizenship but I side with the Australian government here. They have full right to reject his application as he had a good chance to make things right but he didn't. The he lied about his brother being of school age while he was 24 seals his fate as someone who can't be trusted. Harsh yes, but surprising? I don't think so.
Immigration blog
Sad story.
There was clearly not a lot of rehabilitation in that he continued purposefully to present an erroneous picture of his past and current relationships. Would you do a pro bono representation here? "Forever?" That's not the issue. Right now is the issue.