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

[2021] AATA 798

Ali Abed and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 798 (8 April 2021)

Division:GENERAL DIVISION

File Number:2020/6291          

Re:Rania Ali Abed  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President R I Hanger AM QC

Date:08/04/2021

Place:Brisbane

The Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that the applicant satisfies section 21(2)(h) of the Australian Citizenship Act (Cth).

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

Deputy President R I Hanger AM QC

CATCHWORDS

CITIZENSHIP – character test – application for citizenship by conferral – applicant is Iraqi national – Titre de Voyage asserted applicant was stateless – whether applicant claimed to be stateless – whether applicant incorrectly asserted her husband was stateless – whether applicant incorrectly asserted her daughter was stateless – whether applicant misled officials – whether applicant is of good character – decision set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth)

SECONDARY MATERIALS

Department of Home Affairs, Citizenship Procedural Instruction (CPI 15, 27 November 2020)

REASONS FOR DECISION

Deputy President R I Hanger AM QC

08/04/2021

1. The applicant seeks a review of a decision of a delegate of the respondent made on 30 September 2020 to refuse the grant of Australian citizenship pursuant to section 24 of the Australian Citizenship Act 2007 (Cth) (Act).

   LEGISLATION

2. In order to become an Australian citizen a person must be of good character at the time of the decision (section 21(2)(h) of the Act). While the term ‘good character’ is not defined, Citizenship Procedural Instruction number 15 (CPI 15) states that the concept of good character refers to a person’s ‘enduring moral qualities’ which encompasses:

   (a)characteristics which have endured over a long period of time;

   (b)distinguishing right from wrong; and

   (c)behaving in an ethical manner and conforming to the rules and values of Australian society.

3. In particular, presenting incorrect information knowingly to the government may reflect poorly on a person’s character.

4. The respondent contends that the Tribunal should not be satisfied that the applicant is of good character for the purposes of section 21(2)(h) of the Act. The respondent relies on three items of alleged deception.

   ALLEGATIONS

   The applicant’s Protection Visa application

5. The first is that in Part C of her Protection Visa application the applicant declared that her citizenship at birth was ‘Iraqi’ (question 19) and that her current citizenship was ‘N/A’ (question 20).[1] The respondent appears to interpret the answer ‘N/A’ as being a representation that she was stateless. The relevant questions and answers are as follows:

   Question 19:     Your citizenship at birth

   Answer:          Iraqi

   Question 20:     Your current citizenship (if different to at birth)

   Answer:          N/A

   [1] T4, page 22; Respondent’s SFIC paragraph 22.

6. I interpret the answer to question 20 as being ‘not applicable’.

7. It was not untrue. A later question (23) and answer also indicate that she was not claiming to be stateless.

8. In another document, Form 866C[2] which is entitled ‘Application for an applicant who wishes to submit their own claims to be a refugee’, in answer to question 19, the applicant’s husband, Mr Heywari, asserts that he is stateless. That does not appear to be a document of the applicant.

   [2] T4, page 39.

9. The document lodged for the applicant’s daughter[3] refers to the child as stateless but the attachment to that application refers to the present applicant as being Iraqi.[4]

   [3] T4, page 54.

   [4] T4, page 61.

10. In any event, the applicant says that the document was filled out by a migration agent and although she signed it, she could not read it. She had no English and unfortunately appears to have no English now. There is obviously some confusion about the documents.

11. I am satisfied that the applicant did not mislead the respondent about her Iraqi nationality.

    The applicant’s Titre de Voyage

12. The second allegation to give rise to a suggestion that she is not of good character relates to the issue of a Titre de Voyage. That is akin to a passport. That document under the heading of ‘nationality’ refers to her as ‘stateless’. When she was cross-examined about this, there were some difficulties doubtless arising from the fact that all evidence was given through an interpreter. It was to some extent inconsistent. However, the evidence which I accept is that after receiving the Titre de Voyage she raised a concern with the relevant official about the document that asserted that she was ‘stateless’. She told the official that she was Iraqi. The official went away and came back sometime later and said that the document correctly reflected what was in her records. This was the only evidence on the subject, and I accept her evidence. It is, after all, consistent with the material dealt with earlier in relation to the meaning of ‘N/A’.

    Whether the applicant incorrectly alleged that her daughter was stateless

13. The third point raised by the respondent relates to the birth of the applicant’s child. At the time of the birth of her child, she and her husband were living in Iran. In Part D of the Protection Visa application it was declared that the daughter at birth was ‘stateless’.[5] In fact it is common ground that a child born in Iran does not automatically obtain Iranian citizenship. Such a child is Iraqi if either of its parents is Iraqi. I accept the evidence of the applicant that she and her husband tried to officially register the birth of the child in Iran but were advised it was not possible and that they would have to do it in Iraq. That was not done. The applicant said that she only returned to Iraq to deal with the death of her mother. Therefore, at the time of the daughter’s birth, while there is a record of the birth of the child in Iran there was no registration of that birth in the country of its nationality. It is understandable that the applicant might refer to the child as ‘stateless’. Putting that aside for the time being, the respondent, being the model litigant, points out that the statement that the child is ‘stateless’ appears to have been made, not by the applicant, but by her husband. Nevertheless, she has explained how it occurred and I accept that explanation.

    [5] T4, page 55.

    Whether the applicant incorrectly alleged that her husband was stateless

14. The fact that I am satisfied that in her own application for a Protection Visa[6] she did not misstate her nationality is not an end of the matter. When considering her integrity, it is also relevant to ascertain whether she deliberately misled officials about her husband’s nationality. She provided a statement which included the following:

    While they [Mr Heywari and his father] were in Iraq his father approached the Iraqi authorities to regain their Iraqi citizenship but he was told that the authorities have no records of him or his family on file and unless he can prove that he used to be an Iraqi citizen he cannot get his citizenship back.

    When my husband proposed we initially wanted to go to Iran and stay there for a while until the situation in Iraq improved. We got married in Iraq but we could not register our marriage either in Iraq or Iran because we don’t have the necessary documentation. We only have a certificate from the marriage celebrant. My husband returned to Iran right after the wedding because he was not allowed to stay any longer. I followed him after I had applied for my passport. I entered Iran on a visitor visa and extended it every six months.

    My husband approached the Iraqi embassy and asked whether he would be permitted to life [sic] in Iraq. He was told that only a person who holds a national ID certificate can reapply for Iraqi citizenship. My husband has no documents and could not apply.

    [6] T4, pages 21-32.

15. In support of her application, the applicant provided a marriage certificate which indicated that she and her husband were married on 7 May 2004.[7] She also provided a document which purports to be a certificate dated 6 May 2009 which provides as follows:

    On the strength of birth certificate No. XXXXX X dated XX/XX/2006 of Seyedolshohada Hospital, from Mr. Emad Heywari son of Abdol Amir, holding ID.Card No. XXXXX XXXXX XX, a citizen of Iraq, and Ms Rania Ali Abd, holding passport No. XXXXX , a girl of name of [redacted] has been registered at the abovementioned hospital. Therefore, this certificate is issued in response to their request for the purpose of translation and it does not carry any other value[8]

    [7] T7, page 139.

    [8] T7, page 141.

16. It is evident from this document that on 6 May 2009, the applicant and her husband appear to have asserted that her husband, Mr Heywari, was a citizen of Iraq.

17. The respondent relied on evidence which tended to establish that the applicant’s brother‑in‑law has previously provided to the Department his Certificate of Iraqi Nationality and a Ministry of Interior Personal Identity Card. The applicant challenges whether or not the documents are genuine. This has not been suggested prior to the hearing. Had that occurred its authenticity could have been checked. The applicant does not assert it is false—simply that she does not know.

18. I am satisfied that in relation to her own application for a protection Visa the applicant did in fact disclose that she was Iraqi. I am satisfied that while she may have been incorrect about the nationality of her daughter, she was not deliberately dishonest. However, I am satisfied that she probably knew of the Iraqi nationality of her husband even though his nationality is not clearly established. Furthermore, being charitable to an applicant who has little education and given her perception of the non-acceptance of her husband in both Iran and Iraq for reasons which she explains[9] it is not a great misdemeanour to incorrectly allege that he is stateless.

    [9] T4, Pages 98-99.

    CONCLUSION

19. I take into account references of good character. I must also take into account the fact that misleading government officials is regarded as a serious matter. The guidelines for assessing good character under CPI 15 specifically refer to the fact that a person of good character as a general proposition would not materially deceive the officers of the Australian government during a citizenship application. She has not done that in respect of her own application, but it appears she may well have assisted in misleading decision makers in respect of her husband. However, I must weigh that against other matters. There is no suggestion that she is in any other way of bad character or has broken the law in Australia. 

20. I am satisfied that she is of good character. I set aside the decision under review and remit the matter to the respondent with a direction that the applicant satisfies section 21(2)(h) of the Act.

I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger AM QC

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

Associate

Dated: 08/04/2021

Date(s) of hearing:	17 March 2021
Advocate for the Applicant:	Mrs Roya Madj
Solicitors for the Respondent:	Sparke Helmore