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

Ahmadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1877 (25 June 2021)
Division:GENERAL DIVISION
File Number(s): 2020/1457
Re:Sajid Ahmadi
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:25 June 2021
Place:Brisbane

The decision under review is set aside and is remitted to the Respondent for reconsideration with a direction that the Applicant should now be considered to be of good character for the purposes of s 21(2)(h) of the Act.
............................[SGD].........................
Deputy President J Sosso
Catchwords
CITIZENSHIP – application for citizenship by conferral – refusal of citizenship – character test – false statements in a Statutory Declaration – false identity provided to the Department – fear of persecution – passage of time – Applicant now of good character – decision set aside and remitted
Legislation
Australian Citizenship Act 2007 (Cth)
Statutory Declarations Act 1959 (Cth)
Migration Act 1958 (Cth)
Cases
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Minister for Home Affairs v G and Another (2019) 266 FCR 569
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72
Secondary Materials
Department of Home Affairs, Citizenship Policy
Department of Home Affairs, Citizenship Procedural Instructions
REASONS FOR DECISION
Deputy President J Sosso
25 June 2021
INTRODUCTION

On 2 October 2015 Mr Sajid Hussain Ahmadi (the Applicant) lodged an application for Australian citizenship by conferral – Exhibit 1 T4 pp. 137 – 165.
On 28 January 2020 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) refused the application (the reviewable decision) as the delegate was not satisfied that the Applicant was of good character pursuant to s 21(2)(h) of the Australian Citizenship Act 2007 (the Act) – Exhibit 1 T2 pp. 8 – 21.
The Applicant subsequently applied under the Administrative Appeals Tribunal Act 1975 for a review of the reviewable decision – Exhibit 1 T1 pp. 1 – 7.
It would appear that the Applicant was born in Pakistan in April 1981. The delegate proceeded on the assumption that the Applicant was born in Afghanistan – Exhibit 1 T2 p. 11. This misapprehension was based, in part, on a Statutory Declaration made by the Applicant on 6 March 2010 whilst he was being held on Christmas Island. The Applicant made the following declaration – Exhibit 2 ST5 p. 71:
“1. I am an Afghan citizen by birth. I have no other citizenships and I am not entitled to a citizenship nor have I right to residence in any other country.
2. I am a Hazara, Shia Muslim, single, born in Baki, Oruzgan, Khas, Tarincourt, Afghanistan on 31/12/1985.”
The Applicant arrived in Australia as an Illegal Maritime Arrival on 4 January 2010 – Exhibit 2 ST5 p. 75 para 44.
After arriving at Christmas Island, the Applicant, on various occasions, provided false information with respect to his name, date and place of birth as well as other key life information.
On the day after his arrival the Applicant gave his name as Jawad Ahmady, his date of birth as 1984 and his place of birth as Afghanistan – Exhibit 2 ST1 p. 1. The Applicant also stated that his father had been “killed” – Exhibit 2 ST1 p. 3.
Between 1:20 pm and 5:00 pm on 31 January 2010, the Applicant was interviewed by officers of the Department of Immigration and Citizenship. The interview was facilitated with the assistance of a Dari interpreter – Exhibit 2 ST2 p. 6.
The Applicant claimed that his name was Jawad Ahmadi and his place of birth was Baki, Afghanistan – Exhibit 2 ST2 p. 8. He further claimed that he lived in Afghanistan between 1985 and 1998 – Exhibit 2 ST2 p. 9. Consistent with his earlier statement, the Applicant claimed that his father, Mohammad Jan Ahmadi, a farmer, was killed in late 1998 – Exhibit 2 ST2 p. 12.
In addition, the Applicant claimed that he entered Pakistan from Afghanistan illegally – Exhibit 2 ST2 p. 14. The following account was provided of the Applicant’s reasons for leaving Afghanistan and moving to Pakistan – Exhibit 2 ST2 p. 16:
“Afghanistan – My father was killed, then we left the country & came into Pakistan. What happened? Our village was surrounded by Pashtuns. They wanted us to pay tax from our own land, for them & not for the government. When Taliban were in control they wanted the land as well as the tax. Tax, land and people to join & fight for them. Several times, they came & burned houses. One night I remember clearly, I heard my mother screaming. I woke and saw houses burning, my house was burning and I was injured. How did you injure yourself? I don’t know what happened to me, maybe if a stick hit me or a gun shot. As a result of the injury, the next day injured people were taken to Pakistan for treatment. I was among those people taken for treatment. I don’t know what happened, my grandfather took my family a few days later to Pakistan, I don’t know what happened to my father, only that my father had been killed.”
In response to the Question of whether the Applicant had any reasons for returning to his country of nationality (residence), he provided the following responses with respect to Afghanistan and Pakistan – Exhibit 2 ST2 p. 24:
“Afghanistan – In the village where my father was killed and they kill Hazaras, I will be killed as well. Any other reasons why? My life is in danger, it is not safe for me.
Pakistan – For the same story why I left Afghanistan, I left Pakistan. I left from there to save my life and I left Pakistan for the same reason.”
The Applicant also provided a lengthy statement concerning civil strife in Pakistan. He claimed that he was selling CD’s in a Bazaar which was targeted by Baluchi extremists who said that businesses selling CD’s must close or otherwise people would be killed. Subsequently, in 2008, a bomb exploded in the Bazaar and the Applicant closed his business. Some of his clients in Afghanistan were killed by the Taliban (as it was claimed that listening to CD’s was un-Islamic) and Hazaras were being targeted because of their ethnicity and religion (Shia Islam) in both Afghanistan and Pakistan – Exhibit 2 ST2 pp. 25 – 31.
On 6 March 2010 the Applicant made a lengthy Statutory Declaration which outlined his life up until that point in time. Set out below are key details from the Statutory Declaration (Exhibit 2 ST5 pp. 71 – 76). Reference is made to the paragraph number of the Statutory Declaration where the information is located.
The Applicant declared:
(a)his name was Jawad Ahmadi;
(b)he was an Afghan citizen by birth and had no other citizenships – para 1;
(c)he was born in Baki, Afghanistan on 31 December 1985 – para 2;
(d)his father was killed by the Taliban in 1998 – para 5;
(e)his mother, two sisters and one brother resided in Quetta, Pakistan – para 6;
(f)his family owned a small farm near Baki, a Hazara village, where wheat, vegetables and clover were grown and some livestock, including sheep, cows and donkeys, were tended to – paras 8 – 10;
(g)the surrounding area was controlled by the Taliban – para 11;
(h)there was ongoing hostility between Hazara People and Pashtun People with particular conflicts over Pashtuns allowing their animals to graze on crops being cultivated by the Applicant’s family – para 14;
(i)the Taliban burned village houses and killed many local villagers, including the Applicant’s father – para 18;
(j)during this melee the Applicant was wounded in the left side of his back resulting in massive bleeding and he was taken to Quetta where he was admitted to a hospital and treated for a number of days – para 20;
(k)after his father’s death, the family escaped from the farm and relocated to Quetta – paras 13,15;
(l)initially the Applicant worked with his grandfather selling wares in Quetta and after his grandfather’s death on 31 December 2003 he commenced selling and distributing CD’s and DVD’s – paras 22 - 24;
(m)after approximately one year, the Applicant entered into a partnership with Mr Khadim Hussain and together they operated a shop distributing DVD’s until November 2008 – para 24;
(n)the Tehrik Taliban wanted to close down this business because they believed it was against Islam and those working in the industry were infidels – para 25;
(o)after receiving threatening letters, the Applicant’s shop, as well the whole business section of the Bazaar, was blown up by the Taliban resulting in many casualties, including deaths – paras 26 - 27;
(p)following this the partnership ended, but the Applicant continued to distribute DVD’s into Afghanistan through agents – para 28;
(q)two months prior to leaving Pakistan, the Taliban apprehended one of the Applicant’s agents who had “received his fate” and the Applicant was warned to “be ready for your turn”. In addition, a “Fetwa” was issued about those distributing DVD’s – paras 29 – 30;
(r)the Applicant was present at the “Big Mosque” in 2003 when more than 60 people died, in Ashura when over 50 died and in other places where anti-Shia terrorist acts resulted in the deaths of many people in Pakistan – para 32;
(s)there was an escalation of anti-Shia violence such that the environment was no longer safe for the Applicant and his family – paras 33 – 34;
(t)the Applicant, as the oldest member of his extended family, and with the blessing of his mother, determined to escape from Pakistan. The Applicant’s mother did not want him to suffer the same fate as his father – paras 35 – 37.
The Applicant made a further Statutory Declaration in May 2010 which repeated many of the claims outlined above – Exhibit 2 ST9 pp. 94 – 96. In summary, the following claims were made:
(a)his village in Afghanistan was surrounded by the Taliban who hated the Hazara People and regarded them as infidels – para 3;
(b)in late 1998 the “Pashtoon” attacked his village and killed his father – para 5;
(c)the Taliban were opposed to the distribution of all media of entertainment, and as a distributor of entertainment DVD’s the Applicant was perceived by the Taliban to be an advocate of western Christianity and against Islam – para 8;
(d)in September 2009, Nanay, one of the Applicant’s agents in Afghanistan, was kidnapped and killed by the Taliban and the Applicant was warned that it was his turn – paras 9 – 10; and
(e)if he returned to Afghanistan he would be killed by the Taliban – paras 11 – 15.
During this time the Applicant was assessed by a Departmental officer who undertook a Refugee Status Assessment (RSA). It was determined that the Applicant was not a refugee as defined in the 1951 Convention and the 1967 Protocol relating to the Status of Refugees – Exhibit 2 ST8 pp. 82 – 93. The Departmental officer accepted the veracity of the Applicant’s claims about his life in Afghanistan and Pakistan.
On 19 May 2010 the Applicant applied for an Independent Merits Review of the RSA. Once again the Applicant stated that his name was Jawad Ahmadi – Exhibit 2 ST11 pp. 103 – 109.
Despite this lengthy history of maintaining that he was an Afghan and claiming in considerable detail the travails of his family at the hands of the Taliban, on 18 June 2010 the Applicant informed a Departmental officer that the above account was not correct and then revealed his true identity – Exhibit 2 ST14 p. 150.
In a letter dated 11 July 2010 from the Applicant’s then legal advisors to the Independent Merits Reviewer, the following information was provided – Exhibit 2 ST13 pp. 127 – 147:
(a)the Applicant’s true name is Sajid Hussain Ahmadi – para 2;
(b)he was born in Quetta, Pakistan, in 1981 – para 3;
(c)he held a Pakistani passport which he threw away on his passage from Malaysia to Indonesia – para 3;
(d)his forefathers came from Kandahar and his family identified as Hazara – para 4;
(e)his father was a retired public servant who worked as an Assistant Collector/Tehsildar. This position entailed administering all laws regarding property holdings in an entire district, which, in his father’s case, included all districts in Baluchistan – para 5;
(f)the Applicant’s father died in December 2003 of natural causes – para 6;
(g)the Applicant was a member of the Pakistan Shia Conference, which in his case involved providing information to government security forces for the protection of Shia’s during Muharam – para 7;
(h)he was given written permission to search any houses that might be a security risk and duly identified one property where two suicide bombers killed themselves in the course of a Police raid – paras 7 – 11;
(i)from 2008 the Applicant was approached by the Pakistan Intelligence Agencies to spy for them – para 13;
(j)the Applicant claimed that he was asked to join the Hazara Democratic Party and gather information about its funding from Afghanistan and Iran – para 14;
(k)he refused to spy for the Agencies and claimed that he told them that if he did so his family would be destroyed – para 15;
(l)his family ran a CD business in Pakistan, including operating three shops. In 2008 two of the family shops were blown up – paras 16 – 18;
(m)in November 2009 a man on a motorcycle attempted to kill him by shooting at his car. The Applicant was of the view the gunman may have been a member of an extremist Sunni Muslim organisation (such as the Taliban) or employed by Pakistan Intelligence – paras 20 – 22;
(n)following the shooting incident the Applicant made plans to escape from Pakistan – para 23;
(o)he did not reveal his true identity when he arrived at Christmas Island because he was afraid for his family’s safety. He invented a new identity because otherwise there would be problems for his family. He did not trust the interpreter not to pass information on that would result in his family being placed in danger – para 25;
(p)the Applicant claimed that he knew he would have to declare his true identity if he wished to remain in Australia, he was just waiting for the specific time to reveal the truth – para 26; and
(q)he further claimed that he would be killed if he returned to Pakistan for both political and religious reasons – paras 27 – 29.
On 30 August 2010 the Independent Merits Review Panel found that the Applicant met the definition of a refugee pursuant to Article 1A of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees as he had a well-founded fear of persecution for reason of religion and imputed political opinion – Exhibit 2 ST14 pp. 148 – 166.
Another inconsistency in the life history provided by the Applicant relates to his marital status.
Immediately after arriving at Christmas Island (5 January 2010), the Applicant informed the Department that he did not have a spouse – Exhibit 2 ST1 p. 3. The Applicant again repeated this in his interviews of 31 January and 6 March 2010 – Exhibit 2 ST2 p. 11, ST3 p. 39. On 6 March 2010 the Applicant completed a “Personal particulars for character assessment” Form. At paragraph 36 of the Form was a Declaration which provided as follows – Exhibit 2 ST4 p. 65:
“WARNING: Giving false or misleading information is a serious offence.
36 I hereby declare that the information I have supplied in this form is, so far as I know or could reasonably find out, correct in every detail.”
Question 7 dealt with the Applicant’s relationship status. Options included, Married, Engaged, De facto, Separated, Divorced, Widowed and Never married or been in a de facto relationship. The Applicant ticked the never married or been in a de facto relationship box – Exhibit 2 ST4 p. 59.
After the Applicant revealed his true identity to Departmental officers, he also gave a different account of his marital status.
In the statement of reasons of the Independent Merits Review Panel of 30 August 2010, the Reviewer refers on at least two occasions to the Applicant being married to Ms Ali.
First, after referring to the Applicant revealing his true identity to Departmental officers, the Reviewer made these observations – Exhibit 2 ST14 p. 150:
“He also stated that in 2006 he had married, in Pakistan, a woman who is a Danish citizen currently residing in Denmark, and who lodged a spouse visa application for him. This had been refused by the Danish authorities and although she lodged an appeal, the claimant was unsure of the progress of the appeal. He stated that his wife did not know his current situation or location.”
Second, the Reviewer provided the following additional information – Exhibit 2 ST14 p. 153:
“…He said that his wife is of Pakistani background but her father migrated to Denmark after the Second World War and subsequently took out citizenship. His daughter was born in Denmark and has Danish citizenship but frequently comes to Pakistan to visit her various relatives there. The claimant met her on one of her visits and they married in 2006. Her visitor visa expired and she returned to Denmark, after which the claimant went to Islamabad in early 2007 and lodged a spouse visa application at the Danish Embassy. About four months later, they got a rejection letter. The wife investigated and it seemed that the Danish migration authorities assumed that it had been a forced marriage. She then lodged an appeal in Denmark, having first bought a flat in Denmark to show that they would have a marital home together…”
On 8 November 2010 the Applicant again stated that his spouse was Fatima Ali, who was living in Denmark, had Danish citizenship and worked as an IT Consultant – Exhibit 2 ST15 p. 171. Further, the Applicant stated that his father-in-law was Ewaz Ali, who was deceased – Exhibit 2 ST15 p. 173.
Despite claiming that Ms Ali was his spouse to Departmental Officers in 2010, less than two years later, on 20 September 2012, the Applicant lodged a “Sponsorship for a partner to migrate to Australia” Form in which he claimed that his partner was Ms Fouzia Khanum. The Applicant stated that he first met Ms Khanum on 14 April 2008 in Quetta and he commenced a relationship with her on 28 April 2008. He also claimed that he married Ms Khanum on 27 August 2011 and that he was not engaged to, legally married to or in a de facto relationship with any other person – Exhibit 2 ST18 pp. 218 – 219.
The Applicant also made a Statutory Declaration on 20 September 2012 in the following terms – Exhibit 2 ST18 p. 227:
“That I and my wife Fouzia Khanum, were in relation/love since 2008.
That we got married on 27/8/2011, in the presence of witnesses both at Quetta Pakistan and Australia and a religious scholar, who declared us as husband and wife through Skype, which is legal and recognized by the Government of Pakistan and by virtue of Islamic teaching.
That our marriage is genuine and continue.”
In a Statement dated 20 September 2012 the Applicant explained his relationship with both Ms Ali and Ms Fouzia – Exhibit 2 ST18 p. 229:
“I know my wife namely Fouzia Khanum since my childhood, and we used to be neighbours, our relation started in April 2008, when she started giving yoga classes to my family at my house and then we started liking each other, but we could not get married as I was already engaged with Fatima Ali who was a Danish Citizen and lives in Denmark. I always postponed marrying Fatima, because I was deeply attached with Fouzia Khanum, and I really wanted to spent my life with Fouzia, but unfortunately I could not take any further steps as the situated turned against me living in Pakistan, I started struggling to stay alive from the fear of persecution, no one can get married or decide anything being in my situation. Fouzia always been very supporting and encouraging to me and my family, she never left me alone when I was facing persecution in Pakistan and also during my Detention period in Australia when my fortune was unsure/undecided, she already decided to spent her life with me under any circumstances, we are really very sincere with each other and want to live together, and finally got married to Fauzia on 27^th of August 2011 through Skype (which is legal and recognized in Pakistan)… I also informed my ex fiancé about my relation with Fouzia and told Fatima that, I could not live without Fouzia and then me and Fatima Ali got separated, and then I was totally free to marry Fouzia…”

The Tribunal has also been presented with a short statement purported to be made by Ms Ali which bears a date of 18 September 2012 – Exhibit 2 ST18 p. 230:
“I Fatima Ali was engaged to be married with Sajid Hussain, we never been together since our engagement ‘in the year 2006’, and in the year 2009 i have come to know about his relations with Fauzia and then we both mutually decided to end the engagement…we ended [our] engagement in the year 2011, as soon he was released in community. And then Sajid was free to marry Fouzia.”
The evidence presented to the Tribunal, then, supports the following submissions of the Respondent (Respondent’s Statement of Facts, Issues and Contentions (RSFIC) – Exhibit 3 para 16), that the Applicant in his initial dealings with the Department:
(a)provided an incorrect name;
(b)provided an incorrect date of birth;
(c)provided an incorrect place of birth
(d)provided other substantial incorrect information; and
(e)did not tell the truth about his marital status.
When rejecting the Applicant’s application for citizenship, the delegate of the Respondent gave the following reasons – Exhibit 1 T2 pp. 15 – 16:
“In your response you stated that when you first arrived in 2010 you were scared to reveal your true identity as it was very hard for you to trust anyone due to your previous life incidents. You claimed that you could not sleep well during the period when you had provided the Department your fake identity. You revealed your true identity when you felt safe and recuperated from your past trauma. You further stated that after revealing your true identity you could sleep well for the remaining period of your detention. You however, were still fearful of revealing your identity and asked the Department to retain your initial supplied name for the records. You also asked the department not to book any interpreters.
You advised the Department that you had no deliberate intention to misguide the Department with your fraudulent identity and revealing your true identity was only a matter of time. You provided your identity documents from Pakistan and supplied a letter of condolences addressed to you by the chief Minister of Baluchistan when your father passed away in 2004. You attribute the reason for providing a false identity to being scared due to your previous life incidents. I note that you only notified the department of this dishonesty once the negative outcome of the Refugee Status Assessment was given to you. Although you state that revealing your second identity did not have anything to do with your refugee status I find that the timing of your claims regarding your second identity coincide with the negative decision that was made on your refugee status. Additionally, you arrived in Australia on 31 January 2010 claiming to be Jawad Ahamadi born 1985 and it was only after the negative assessment of our Refugee Status Assessment on 10 May 2010 that you chose to reveal that you are Sajid Hussain Ahmadi born 14 April 1981. I find that the three month delay in informing the Department is indicative of your willingness to conceal [your] identity. Had there been a positive outcome for the Refugee status assessment, you would have continued indefinitely with your fraudulent identity. As a result, I find that you have deliberatively claimed a second identity with the objective of gaining a positive visa result.
With regards to your spouse, you admit that you informed the Department that you were married to Fatima Ali in your arrival interview. You state your engagement ceremony was performed, which culturally means that you are committed to the person you are engaged to. You further state that you did not live with her and you were not emotionally attached to her. You claim that your Rukhsati was not performed. Rukhsati is a cultural practice where in the bride goes to her new family after the wedding.
You state that you used the word ‘married’ as you were socially, culturally committed to someone. You did not say that you were single or explain the situation as you understood that the interview was regarding your refugee status not marital status. I note that although you claim that you were only engaged to Fatima Ali, you did not live with her or were emotionally attached to her and Rukhsati was not performed, you informed the Department that you were married.
Being engaged to someone and married to someone are two totally different relationships and are not used interchangeably. I therefore give little weight to your statement that you told the Department you were married when you actually wanted to express that you were engaged. In your refugee status assessment interview you also stated that Fatima Ali has sponsored you for a spouse visa. I find that you cannot be sponsored for a spouse visa if you were not married. Based on the above, I do not accept that you informed the Department you were married, as you could not explain your relationship adequately. Based on this information, I find that you have changed the status of your relationship with Fatima Ali to obtain a favourable outcome for your partner application.”
The delegate found that the Applicant was not a person of good character and concluded as follows – Exhibit 1 T2 p. 17:
“I consider a person of good character would not provide false information in relation to their personal information and family composition. The provision of false and/or misleading information during your visa and citizenship application history is considered a serious matter. The Australian Government and community legitimately expect applicants for government services to provide correct, consistent and complete information when applying for those services. I find you have failed to provide a reasonable explanation for the multiple inconsistencies in information you have provided to the Department. A person of good character would reasonably be expected not to provide inaccurate information to gain advantage in the making of a visa or citizenship application. I find based on the provision of false information noted above, that you are not a person of good character.”
ISSUE FOR DETERMINATION
The only issue for determination by the Tribunal is whether the Applicant is a person of good character for the purposes of s 21(2)(h) of the Act.
LEGAL OVERVIEW
Pursuant to s 21(1) a person may make an application to the Respondent to become an Australian citizen. Subsections 21(2) – (8) prescribe the various eligibility criteria. In the reviewable decision the only eligibility criterion the Applicant was found not to have met was s 21(2)(h), namely:
“is of good character at the time of the Minister’s decision on the application.”
The term “good character” is not defined in the Act. There have been a number of Federal Court decisions on the meaning of this term and the proper application of the good character test. Reference can be made to the following observations of Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) (1996) 68 FCR 422 at 431 – 432:
“the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review [of] subjective public opinion…A person who has been convicted of a serious crime and thereafter held in contempt in the community , nonetheless may show that he or she has reformed and is of good character…Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”
An assessment of good character, then, is an objective exercise governed by a review of the evidence presented as distinct from a popularity contest infected by emotion and only a partial understanding of a person’s character and behaviour.
Such an assessment is by no means an easy task and a decision-maker must reach the requisite state of satisfaction. The Tribunal made these observations in Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7]:
“a decision about whether a person is of good character requires the 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.”
Although the Act does not define “good character”, guidance is provided to decision-makers by the Citizenship Policy (CP) and the Citizenship Procedural Instructions (CPI).
It needs to be noted that neither the CP or the CPI are made pursuant to a specific provision in the Act. In Minister for Home Affairs v G and Another (2019) 266 FCR 569 the Full Court (Murphy, Moshinsky and O’Callaghan JJ) made the following observations ([18]/574):
“There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.”
Their Honours also made the following observations ([58]/586):
“It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created…”
The Tribunal will generally apply the CP and CPI unless there is a cogent reason not to do so – Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
However, although the CP and CPI provide sound general guidance to a decision-maker, where a level of satisfaction is reached for the purposes of s 21 of the Act, then any further requirements or steps as set out in the CP and CPI need not be addressed – Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72.
Reference can also be made to the non-exhaustive list of characteristics expected of a person of good character set out in Cl. 4.4 of the CI (Exhibit 2 ST22 p. 293). The relevant characteristics as set out in the CI as relevant to this matter are:
“An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
·respect and abide by the law in Australia and other countries
·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth)
·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or
oother material deception during visa and citizenship applications;…
oconcealing criminal convictions;
ofraud against the Commonwealth, such as tax fraud or Centrelink fraud;
ogiving false names and/or addresses to police…”
It is also important to set out the following guidance in Cl 4.4 which informs a decision-maker on how to sensibly apply these principles in particular circumstances – Exhibit 2 ST22 p. 293:
“Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.”
HEARING
A Hearing was convened in Brisbane on 25 February 2021. Due to ongoing social distancing requirements consequent upon the COVID 19 pandemic, the Hearing was conducted remotely utilising Microsoft Teams.
The Applicant was self-represented and gave evidence.
The Respondent was represented by Mr Kim.
Apart from the Applicant, no other person was called to give evidence.
Leave was given to the parties to provide written Closing Statements. The Applicant elected not to provide any written Closing Statement. The Respondent provided a Closing Statement (CS) which is dated 15 March 2021.
CONSIDERATION
The question to be resolved in this matter is relatively straightforward and the essential facts are not in dispute.
It is manifestly clear that the Applicant, as the Respondent correctly submits (CS para 2(a) – (b)), on multiple occasions made false statements in Statutory Declarations and provided false information to the Department. The provision of false information in a Statutory Declaration can result in a maximum penalty of 4 years’ imprisonment pursuant to s 11 of the Statutory Declarations Act 1959. Likewise, the provision of false information to the Department can result in a maximum penalty of 10 years’ imprisonment or 1,000 penalty units, or both, pursuant to s 234 of the Migration Act 1958.
In particular, the Applicant did not disclose his true identity for almost six months after his arrival on Christmas Island. For some period after his arrival in Australia, the Applicant provided a farrago of falsehoods to Departmental Officers. He invented an elaborate concocted history of his life. His false life story was lengthy, compelling and totally believable. His false life story had all the elements of a deliberate and carefully planned attempt to mislead and deceive; and for the time that the Applicant expounded this false narrative, it was believed. In short, the Applicant was a very successful liar.
At the Hearing, the Applicant testified that he was born in Pakistan as were both of his parents. In fact, it was his great grandfather who was born in Afghanistan, and he moved to Pakistan before Pakistan became independent in 1947 – Transcript (Tr.) 25.2.2021 p. 10.
Despite the length of time the Applicant’s family lived in Pakistan they still spoke the Hazara language (which is similar to Persian) and lived in an Hazara enclave in Quetta called Mariabad. Due to the communal nature of the Hazara People, they did not lose their culture, identity or language – Tr. 25.2.2021 p. 11.
The Applicant confirmed that his father passed away due to natural causes and was not killed by the Taliban – Tr. 25.2.2021 p. 13.
The Applicant’s testimony about Ms Ali was somewhat confusing. He referred to her as his “spouse” but then qualified this by testifying that she was his fiancée and they had never lived together as husband and wife – Tr 25.2.2021 pp. 14 – 15. While the Applicant testified that he had given Ms Ali an engagement ring, he testified he had never given her a wedding ring – Tr. 25.2.2021 p. 15.
Of some concern was the fact that the Applicant testified that Ms Ali was born in Pakistan but as a young girl went to Denmark with her family – Tr. 25.2.2021 p. 15. Previously the Applicant had informed the Department that Ms Ali was born in Denmark and her father had left Pakistan many years earlier.
The Tribunal was also presented with somewhat confused and vague testimony about the Applicant’s attempt to join with Ms Ali in Denmark and whether in his attempt to do so, misleading information was provided to the Danish authorities – Tr. 25.2.2021 pp. 19 – 21.
The Applicant testified at length about his fear of both he and members of his family being killed by Islamic extremists or by elements of the Pakistan Intelligence Agencies. It was this fear, it is claimed, that led the Applicant to lie about his true identity when he arrived in Australia.
Again, there were some inconsistencies in the Applicant’s accounts of why, if he had such fears, he nonetheless openly took steps to leave Pakistan for Denmark. The Tribunal accepts the Applicant’s testimony that these fears crystallised at some time after he attempted to join Ms Ali in Denmark – Tr. 25.2.2021 p.19.
Apart from the Applicant’s testimony at the Hearing, the Tribunal has been presented with a relative dearth of information by the Applicant.
There are three character references which attest to the good character of the Applicant.
First, there is an undated statement by Mr Mohammad Taqi Ziyahee – Exhibit 4. Mr Ziyahee stated that he had known the Applicant since 2010, having arrived in Australia on the same boat. Mr Ziyahee claimed that the Applicant was upset and stressed when he first came to Christmas Island and that the Applicant told him that he was not comfortable with hiding his true identity from the Department and would tell the Department the truth regardless of the outcomes. After the Applicant revealed his true identity he was a happy, relaxed and different person who was eating and sleeping well. Mr Ziyahee stated that he believed the Applicant was an honest person who was of good character and that he and his family remain in contact with the Applicant and his family.
The second character reference is an undated document signed by Mr Sayed Agha Musavi – Exhibit 6. Again, Mr Musavi knew the Applicant from Christmas Island. Mr Musavi claimed that the Applicant was a good and honest friend and believed that he never intended to hide his true identity. Further, Mr Musavi claimed that he was so inspired by the Applicant’s character and honesty that he preferred to live close to him and his family.
The final reference is dated 20 February 2020 and is from Mr Nazir Hussain, the President of the Hazara United Community Inc, Qld – Exhibit 2 ST20 p. 275.
Mr Hussain has known the Applicant since the days they were both living in Pakistan and the Applicant has been an active member of the Hazara United Community since March 2014. According to Mr Hussain, the Applicant has taken part in various programs in relation to culture, social life, education, religion, sports and developing multicultural relationships.
The Applicant was given ample opportunity to call the above persons to give evidence, but he did not avail himself of that opportunity. Two of the statements are undated and the Tribunal was unable to ascertain, under questioning, exactly how much interaction each of the above persons have had with the Applicant in recent years. The Tribunal has no reason to doubt the genuineness of the statements, however not much weight can be given to them for the reasons outlined.
In evaluating whether the Applicant was a person of good character at the time of the Respondent’s decision on his Citizenship application, two matters are of importance.
First, the Tribunal has taken particular note of the report of the Independent Merits Review Panel of 30 August 2010. The Reviewer prepared a comprehensive and well-constructed Report which outlined all of the relevant matters. Reference can be made to the following observations of the Reviewer – Exhibit 2 ST14 p. 161:
“The claimant is aware that this background could raise concerns about his credibility. He has now taken pains to provide as such documentary evidence as possible to support his new claims. I conducted a long hearing and asked many questions to establish the veracity of his new testimony, which I note is consistent with the statutory declaration he furnished on 11 July 2010, five days before the hearing. He was keen to answer all my questions and expand on or clarify any points as required. I note that when the claimant felt comfortable in the hearing, he began to talk almost exclusively in English although the Hazaraghi interpreter was present and could be called upon as required. The claimant had been schooled in English. Hence I feel that I received a very complete testimony from the claimant and sufficient to make a judgment about credibility. I found the claimant’s story plausible and supported by a good deal of independent evidence, including the documentation he has supplied.”

In reaching her conclusion, the Reviewer accepted:
(a)the Applicant’s name, ethnicity and citizenship;
(b)his membership of the Baluch Shia Conference;
(c)his role in gathering information about suspicious activities by Islamic extremists;
(d)the leaking of his name which resulted in death threats;
(e)his suffering harm at the hands of the Taliban;
(f)there was a real risk of harm from Lashkar-e Jhangvi and the Taliban should he return to Pakistan;
(g)it was plausible that the Pakistan Intelligence Agency attempted to recruit him;
(h)the State of Pakistan was unwilling or unable to provide adequate protection against harm from Islamic extremists.
What is important, is that in finding that the Applicant had a well-founded fear of persecution by reason of his Shia religion and imputed political opinion, the Reviewer formed a positive view about his credibility and his life story.
The Reviewer was cognisant of the false and misleading information the Applicant had given to Departmental officers in the year prior to her decision, but having engaged in a lengthy interview process she nonetheless found him to be truthful and accepted his life story.
It is not for the Tribunal to go behind these findings as the Reviewer was, ostensibly, an experienced person and had the benefit of personally interviewing the Applicant and assessing his credibility when he was still being detained on Christmas Island. Leaving aside the relationship between the Applicant and Ms Ali, the Reviewer’s findings suggest that by August 2010 the Applicant was fully cooperating with the Department and was providing truthful answers about his identity and life history.
Second, the Respondent submits at length about the false narrative provided by the Applicant on his arrival in Australia. The Tribunal accepts these submissions as they comport with the uncontested evidence presented to the Tribunal.
However, the issue for the Tribunal is not whether the Applicant was a person of good character in 2010, but whether more than a decade later he is now a person of good character. In answering this question, I accept that if the question of good character was determined in 2010, then a negative response would almost certainly have been given.
The following factors weigh in favour of the Applicant:
(a)there is no evidence of him committing any criminal offences in Pakistan;
(b)both he and his family were well-regarded Pakistani citizens;
(c)he was, by all accounts, a successful business operator;
(d)he was heavily involved in the Shia community;
(e)he assisted the Police in attempting to prevent acts of terrorism;
(f)there is no evidence of him committing any criminal offences in Australia;
(g)he is a married man and the father of two children;
(h)he is actively involved in the Hazara community and engages in community work; and
(i)for much of his period in Australia he has been gainfully employed.
It is important when reaching a conclusion about whether a person is of good character to assess their enduring moral qualities, which as Lee J pointed out in Irving, involves an objective assessment based on the totality of the evidence before the Tribunal.
In this matter the Tribunal has formed the view that the Applicant is now a person of good character. Whilst he was deceitful when he first came to Australia, the Tribunal accepts that this deception was largely due to his fear of persecution should he be returned to Pakistan and the perceived danger posed to his family. Indeed, the Reviewer quoted above found that it had a factual basis.
The Applicant has lived in Australia for more than a decade. He married, was a parent to three children, one of whom tragically died, and has been a good member of the community. He has not committed any crimes and he has been, it would appear, mostly gainfully employed.
The question that must be answered is whether the Applicant’s initial behaviour when he arrived in Christmas Island requires a finding that he is not of good character for the purposes of s 21(2)(h). The answer to that question is in the negative. A decision-maker is required to make a contemporary decision based on the totality of an applicant’s life history. There have been numerous decisions where good character has been found and where the persons involved have had a past of petty and, sometimes, major crimes. In each case the decision-maker has looked at whether the applicant has reformed themselves, and issues such as the passage of time, contribution to society, family life, employment history and health issues have all been taken into account.
The evidence in this matter suggests that the Applicant has, since his release from detention, been a productive member of the community. Citizenship is not bestowed lightly and is a privilege and not a right. It is a precious gift that is given to those persons who come to Australia, contribute to society and embrace the Australian ethos and values. I am satisfied that the Applicant is a person who is now of good character and who is deserving of receiving citizenship.
DECISION
The decision under review is set aside and is remitted to the Respondent for reconsideration with a direction that the Applicant should now be considered to be of good character for the purposes of s 21(2)(h) of the Act.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

......................[SGD]..................
Associate
Dated: 25 June 2021

Date of hearing: 25 February 2021

Date final submissions received: 15 March 2021

Solicitor for the Respondent: Mr Kyu-Won Kim

[2021] AATA 1877

25 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Standing

Statutory Construction