Azimi and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 722
•20 September 2016
Azimi and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 722 (20 September 2016)
Division
GENERAL DIVISION
File Number
2015/2148
Re
Abdula Azimi
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr W. Evans, Member
Date 20 September 2016 Place Perth The decision under review is affirmed.
...........[Sgd].............................................................
Mr W. Evans, Member
CATCHWORDS
CITIZENSHIP – citizenship by conferral – whether the applicant satisfies the legislative requirement showing that he is of good character – trafficking of documents proven to be counterfeit – consideration of mitigating circumstances - evidence establishes failure of Good Character requirements – decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) – s 21(2)(h)
CASES
Assafiri v Minister for Immigration and Border Protection [2014] AATA 35
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996]
Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326
Zheng and Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Policy dated 1 June 2016
REASONS FOR DECISION
Mr W. Evans, Member
20 September 2016
INTRODUCTION
Mr Abdula Hussain Azimi (the applicant) made an application to the Administrative Appeals Tribunal (the Tribunal) seeking review of a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) dated 20 April 2015 refusing his application for conferral of Australian citizenship.
FACTS
Mr Azimi is a 32-year-old citizen of Afghanistan who first arrived in Australia at Christmas Island on 10 December 2008. On 19 March 2009 he was granted a Subclass 866 visa. The applicant then resided in South Australia for almost five years before moving to Western Australia in 2014.
On 25 April 2012 whilst still resident in South Australia, Mr Azimi and his family went to Quetta, Pakistan to visit extended family. The trip lasted 43 days with Mr Azimi and his family returning to South Australia on 9 June 2012.
Upon his arrival at Adelaide Airport, South Australia, he was found to be in possession of three Afghanistan driver’s licences containing photographs of other young males. The licences were devoid of biographical data but had been stamped by the ‘Kabul Licence Department’. The licences were initially examined by Australian Customs but after a short time were returned to the applicant without comment.
The three licences were later handed by the applicant to persons of Afghanistan descent in South Australia who attempted to use them to obtain Australian driver’s licences. The licences were seized by authorities and declared fraudulent.
On 28 May 2013 the applicant lodged an application for Australian citizenship [T6, pp 135-143]. That application was subject of departmental assessment and review until 20 April 2015 when the delegate refused citizenship on the grounds the applicant did not meet the requirements of section 21(2)(h) of the Australian Citizenship Act 2007 (the Act) relating to “good character”.
ISSUE
The issue here is whether Mr Azimi meets the requirement of “good character”.
LEGISLATION AND POLICY
Section 21(2)(h) of the Act provides:
A person is eligible to become and Australian citizen if the Minister is satisfied that the person:
…
(h)is of good character at the time of the Minister’s decision on the application.
Good Character
The respondent advised the Tribunal that the Department has developed policy in the form of the Citizenship policy 1 June 2016 in support of the Act. The Citizenship Policy replaces the policy guidance content previously provided by the Australian Citizenship Instructions (ACIs).
The relevant “good character” policy guidelines are outlined in Chapter 11 of the Australian Citizenship Policy 1 June 2016.
The Tribunal notes that in the Introduction to Citizenship Policy, the role of that policy is:
The role of Citizenship Policy is to support the Australian Citizenship Act 2007 (the Act). Citizenship Policy provides guidance on the interpretation of, and the exercise of powers under, the Act and the Australian Citizenship Regulations 2007 (the Regulations). Policy cannot constrain the exercise of delegated powers under the Act or the Regulations.
The Citizenship Policy states:
The term ‘good character’ is not defined in the Act. The decision maker should have regard to the ordinary meaning of the words in assessing good character: see Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 139 ALR 84 where Lee J noted at [94]:
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 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 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. (citations of authorities omitted).
Relevant Cases
In Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326 the Tribunal stated 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.
In Zheng and Minister for Immigration and Citizenship [2011] AATA 304, at [120]:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, 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 for 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 do.
Chapter 11 page 147 of the Citizenship Policy provides that an applicant of good character would:
Respect and abide by the law in Australia and other countries.
…
be truthful and not practise deception of fraud in their dealings with the Australian Government, or other governments and organisations.
not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia.
In relation to weighing up the decision, the Citizenship Policy (at page 149) provides the following guidance:
Would a person of good character have behaved the way the applicant did?
What is there to demonstrate that the applicant has upheld and obeyed the law?
Has the applicant behaved in accordance with Australia’s community standards?
Does the applicant share Australia’s democratic beliefs and respect its rights and liberties?
In Assafiri v Minister for Immigration and Border Protection [2014] AATA 35, Senior Member Toohey stated:
There is no formula for determining how much is sufficient time to be satisfied that a person is of good character.
…
It is submitted for Mr Assafiri that sufficient time has now passed for him to be considered of good character. I am not satisfied that is so. Time of itself is not enough. The “enduring moral qualities” of which good character speaks must be demonstrated objectively over a sufficient period. How long that will be will depend on all the circumstances of the case.
…
I accept that absence of offending is itself an indicator of a person’s rehabilitation, and more so, as time passes. It counts in Mr Assafiri’s favour that nearly six years have passed without any further offences. However, there is not in my view sufficient objective evidence yet of his good character.
RESPONDENT’S CONTENTIONS
Respondent’s Evidence Currently before the Tribunal
Relevantly, the respondent’s Statement of Facts Issues and Contentions (SOFIC) provides as follows at paragraphs 4 - 9 and 19 - 27:
4. The Department wrote to the applicant seeking comment in relation to adverse information in the following terms [T16, pp 189-190]:
“Your departmental file contains information regarding your arrival in Australia 09 June 2012. Upon your arrival into Australia you were found to be in possession of three Afghan driver’s licences containing photos of other young males. The licences had been translated but were blank with no identifying details except for the photos which were stamped by the ‘Kabul Licence Department’. As the licences are blank they were deemed to be fraudulent. It is likely that these driver’s licences were obtained to facilitate identity related fraud.”
5.On 4 April 2014 the applicant provided a statement in response [T19, pp 193], providing the following explanation:
“On 25 April 2012 I left Adelaide and went to Quetta Pakistan to visit my wife and children.
I spent about 43 days in Quetta, Pakistan with my family.
I returned to Australian on 9 June 2012.
When I was leaving Australia to go to Pakistan, one of my friends in Australia, Ali Ahmadi, asked me, to bring his driving license from his family when I returned to Australia.
When I was leaving Pakistan to return to Australia on 8 June 2012 Ali Ahmadi’s family brought his driver’s license to me in a plastic bag and gave it to my brother. My brother put the license in my luggage.
At the same time, one of my friends mehrab (sic) who lives in Australia close friends family (sic) also brought 1 driving licenses and gave them to my brother. My brother put those licenses as well in my luggage. While my brother took these licenses I was out in the market for shopping with my wife and children. I did not look at those licenses because I thought those licenses belong to those people.
I did not open the licenses or the plastic bag.
Upon my arrival at the Adelaide airport the officers searched my bag and found these licenses. They questioned me and I explained the same details to them. I asked if they needed to clarify what I had just explained to them. They would call the owner of these driving licenses whose contact numbers were included in the plastic bag.
The officers did not say anything to me and let me leave with the driving licenses. As soon as I arrived home, I gave the driving licenses to Ali Ahmadi and my friend Mehrab’s wife. I have nothing to do with the issuing of the licenses and they are not in my possession as I gave them to their owners.
If those drivers’ licenses were seen as suspicious why did the authorities at the Adelaide airport return them to me at time (sic).
I am of good character and have never committed any crimes or fraud.”
6.The applicant also submitted a number of brief character witness statements. The Respondent notes that none of these witness statements express any knowledge or view of the applicant’s conduct in relation to the licences. (The Tribunal noted that two of the character witness statements are from recipients of the false licences).
7. On 20 April 2015, a delegate decided to refuse the applicant’s application.
8. The applicant has subsequently filed a very brief witness statement of Ali Ahmadi (A9) which states:
“I declare that Abdula H Azimi brought a blank Afghani driving licence from Pakistan without knowing. I am sure that he didn’t know about that.”
9.It is not clear whether the deponent of that witness statement is the same Ali Ahmadi who is referred to in the applicant’s witness statement (at [T19]) or on what grounds Mr Ahmadi believes the applicant had no knowledge the driving licences were fraudulent.
…
19. Whilst the applicant has not been convicted of any offence, the Citizenship Policy makes it clear that (an assessment of) whether a person is of good character is not limited to the existence of criminal convictions. The Citizenship Policy at page 149 provides specific guidance on the assessment of an applicant’s general conduct. The Tribunal looks holistically at an applicant’s behaviour over a lasting or enduring period of time. The amount of time depends on the merits of each case.
20. The respondent submits that any involvement in a scheme engineered towards the production of counterfeit documents or the use of bogus documents in an attempt to obtain official identity documents is conduct which is patently at odds with Australian standards. The respondent submitted that it has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character (Lachmaiya v Department of Immigration and Ethnic Affairs [1994] 19 AAR 148, Al Temimi v Minister for Immigration and Border Protection [2014] AARA 97, Beyan v Minister for Immigration and Border Protection [2015] AATA 256). The respondent contends that the involvement with the procurement of bogus documents to allow others to deceive government departments is equally as grave. It is at the very least evidence of an inability to distinguish between right and wrong. Put simply, and in the context of the Policy, a person of good character would not be part of such a scheme or associate with others who were part of such a scheme.
21. In addition, the respondent submitted evidence of an elevated risk of identity fraud with Afghanistan identity documents (R4). In this regard the respondent refers to the witness statement of Roslind Winter, Assistant Director of the Department’s Forensic Identity Services Section, which states:
“Since February 2013 I have examined approximately 80 Afghanistan driving licences. The majority of the licences I have examined I have determined to be counterfeit or fraudulent.”
22. The respondent contends that Ms Winter’s statement demonstrates there is widespread identity fraud relating to Afghanistan driving licences. Whilst any involvement with fraudulent identity documentation is of deep concern, it is all the more troubling in the context of widespread abuse and the impositions that places upon government departments.
23. Ms Winter’s statement also provides specific information in relation to the applicant’s case:
“On 6 February 2013 I was contacted by Kate Butler of the Department of Planning Transport and Infrastructure (DPTI) in Adelaide and requested to examine four Afghanistan driving licences. Subsequently to this initial request a further 22 licences were submitted over the period 26 February 2013 until 26 February 2014. During this period I searched the department’s intelligence systems for information regarding Afghanistan driving licences. In undertaking this search I found Imtel report number 354295 with images of three Afghanistan driving licences which were found in the possession of Mr Abdula Hussain Azimi on the 9 June 2012 at Adelaide airport. Imtel is used as a repository of integrity information which supports knowledge sharing across the Department. The licences in this Imtel report were blank with the exception of a photograph, issuing stamps and issuing signatures.
On the 20 February 2014 the DPTI submitted licence number 3040 for examination. This licence was one of the licences found in the possession of Mr Azimi. The licence which was blank when found at Adelaide airport when submitted by the DPTI contained the handwritten bio-data. I have examined this licence and I am of the opinion that the licence is counterfeit.”
24. The respondent contends that it is clear from the applicant’s own statement and Ms Winter’s investigation that:
· The applicant brought blank Afghanistan driving licences into Australia;
· Those licences were subsequently altered to include handwritten bio-data; and
· The licences were subsequently submitted to the Department of Planning and Transport Infrastructure (DPTI) in Adelaide.
25. Thus whilst there is no evidence of any criminal prosecutions, it is clear that the applicant’s role in bringing counterfeit documents into Australia was significant. At the very least he has associated with persons involved in deceptive and fraudulent conduct. Given his critical role in obtaining and transporting the fraudulent documents into Australia the respondent submits that the applicant’s claim to have no knowledge in this regard clearly lacks credibility. Furthermore, it is difficult to accept the applicant’s claim that he bears no responsibility whatsoever for items he brought into Australia.
26.What is equally concerning is that there is no evidence of remorse from the applicant or an appreciation of the gravity of his conduct. Indeed, the applicant appears to consider that there is nothing wrong with his conduct and is dismissive of any concerns in respect of his behaviour. This, in itself, it is alleged, is an indication that the applicant lacks the ability to distinguish between right and wrong. The respondent contends that it is not an attitude which accords with Australian values and community standards.
27.In the absence of any objective evidence of remorse or any evidence that the applicant appreciates the seriousness of his conduct the respondent contends that insufficient time has passed to assess whether the applicant is fully rehabilitated. The respondent submits that at this time it cannot be said that the applicant fully comprehends and shares the values of the Australia community.
DISCUSSION
Mr Blades, for the applicant, stated that there was no deliberate attempt by the applicant to deceive or commit fraud by bringing the Afghanistan licences into Australia. It was contended that the applicant had in good faith merely agreed to collect his friend Mr Ahmadi’s licence from his family in Afghanistan during the applicant’s visit there. Supporting that were submitted the following alleged facts as detailed in the Applicant’s Statement of Facts, Issues and Contentions (SOFIC) at paragraph 19:
i.The Applicant was stopped and questioned by Australian Customs when entering Australia on 9 June 2012;
ii.The documents in question were taken and examined by the Australian Customs authorities;
iii.After inspection, the documents were returned to the Applicant;
iv.The Applicant was immigration cleared and allowed to enter Australia without further enquiry;
v.The Applicant was not charged with an offence at the time of the incident in questions (sic) or since the time of the incident in question;
vi.The Applicant was not referred to the relevant law enforcement authorities at the time of the incident; and,
vii.The Applicant has not since been charged with an offence with respect to the incident in question.
The applicant submitted that while he provided the documents (to those requesting them), “he cannot ultimately be held responsible for the actions of those who own the documents”.
It was contended by Counsel for the Applicant during the hearing that the applicant “has no criminal prosecutions … he has not acted evasively or untruthfully in any dealings with governmental agencies”. Indeed, “he had surrendered the documents to Customs and they had in turn returned them to him without further ado”. Given the actions of the Customs authorities and the lack of subsequent law enforcement follow-up, the applicant considers the incident to be minor in nature.
Nevertheless, when submitting his application for citizenship, the incident became paramount. The licences, after distribution, were used to obtain Australian driver’s licences by those holding the alleged fraudulent Afghanistan licences. At paragraph 25 of the Applicant’s SOFIC, he:
… concedes that his actions may be characterised in a way which may seem contrary to Australian values and standards, for which he is sorry for his involvement, however remote. Given his time again, he would not have transported the licences back to Australia.
At paragraph 34 of the Applicant’s SOFIC, the applicant contended that he:
… has had no convictions or charges in any jurisdictions, clearly demonstrating an ability to distinguish right from wrong. In all his time in Australia, the applicant has behaved in an ethical manner; he has found gainful employment; contributed to Australian society and is successfully raising his young daughters, first in Adelaide and now in Perth.
At paragraph 39 of the Applicant’s SOFIC, the applicant states that he:
… has been in contact with one of the recipients of the driver’s licences and is not in contact with the other two recipients. The nature of the association is through the Afghan community in Adelaide and the Applicant has had infrequent contact with the recipients of the driver’s licences. The Applicant’s submission is that the overall association with those accused of not obeying Australia’s laws is minimal.
The applicant contended that he had accepted responsibility and is remorseful of his actions. In 7 years and 4 months in Australia there is no evidence that he has been before police for any offence of any nature.
In his oral evidence, the applicant stated:
I have learnt my lesson; if anyone gives me anything, I will look at it more clearly.
The applicant relocated to Perth as it provided an opportunity for employment; however, he started his own business instead. That business is a tiling business (ADJ Ceramic Tiling Pty Ltd), correctly established and registered. Initially, he employed nine Afghans as tilers but now employs only two; one is a qualified tiler and the other is a learner. The applicant himself holds no qualifications but learnt the trade “on the job working with other Afghans in Adelaide”. The tiling work in Adelaide was not confined to the Afghanistan community alone, but right across the board, as it now is in Perth. The business is home-based and is going well. Last year it turned over $139,000 after tax. Mr Azimi’s personal taxable income was $79,417.
Mr Azimi stated that he rented the premises at 47 Gaby Way, Marangaroo and resided there with his wife, two daughters aged 9 and 7 and a son aged 3. He continues to own a mortgaged residence in Adelaide which he rents out.
When questioned by the Tribunal as to whether the tiling business was registered as a home-based business in his local council jurisdiction, after an adjournment, the answer was that the City of Wanneroo deemed the business a Category 1 business NOT requiring planning approval. The Tribunal was satisfied that no local council law was being broken after perusing documentary evidence produced by Counsel for the applicant.
Mr Azimi went on to explain that he was involved in the Afghan community in Adelaide for some seven years and still has some contact with that community albeit minimal.
The applicant stated that he met Mr Ahmadi through contact at his local mosque in Adelaide. It was there that he also became reacquainted with Mehrab Hussaini, allegedly a friend of some 22 years; they apparently all grew up together in the same village.
Prior to his departing on his trip to Quetta in Pakistan on 24 April 2012 he was approached by Mr Ahmadi who asked if he could collect Mr Ahmadi’s driver’s licence from his family in Afghanistan whilst there. Mr Azimi agreed.
It was upon his return that the licences were discovered and examined by Customs officials and after a short delay, returned to him with no further action. There were no other delays at the airport processes.
The aftermath has taught him not to trust some people. He just wants to work hard and build his business. He is “involved in the Afghan community in Perth but not in a religious sense”.
He participates in sports and other community activities but as he works 10-11 hours a day, time is precious.
His 15 year old brother is in Indonesia but he (the applicant) has no intention to travel there any time soon.
Under cross-examination, Mr Azimi stated that he does not have an email address for his brother and that he did not think to seek a statement from him regarding the licence issue as his brother was too young to understand the requirement.
He stated that he had lived in Adelaide with Mr Ahmadi for six months shortly after arriving in Australia. He again stated that Mr Ahmadi had asked him to collect the driver’s licence when in Afghanistan. Mr Azimi stated that he did not contact the Ahmadi family in Afghanistan, instead Mr Ahmadi allegedly telephoned them and arranged for the licence to be delivered to Mr Azimi’s Quetta address.
Mr Azimi then stated that on the day prior to his departure from Quetta, Mr Ahmadi’s family delivered the licence in a plastic bag. The bag was sealed and see-through but he did not confirm that the licence was in Mr Ahmadi’s name, however, it did have a telephone number on the back of the bag, presumably the contact number back in Adelaide.
Mr Azimi went on to say that whilst out shopping with his wife, it was his brother (aged 11 or 12 at the time) who put the plastic bag in Mr Azimi’s luggage. It was not explained how Mr Azimi knew of the plastic bag’s existence when he returned home from shopping. His brother lived with neighbours in Quetta at the time.
Mr Azimi also stated that members of Mr Mehrab Hussaini’s family arrived at the house in Quetta and asked for Mr Azimi to take licences back to Australia and deliver them to Mrs Hussaini in Adelaide. It too was in a plastic bag and it too was apparently placed in Mr Azimi’s luggage by his young brother. It was not until arriving at Adelaide airport that Mr Azimi saw that there were three licences in total and that they were blank, save for photographs and the Kabul Licencing Department’s stamps. Apparently there were no names on the licences and it was only later that bio-data was handwritten on them and when they were presented to the Adelaide Department of Planning Transport and Infrastructure (DPTI), they were declared fraudulent.
Under cross-examination, Mr Azimi firstly denied that the licences were fake. However, when confronted with the fact that he identified them as blank at Adelaide airport he conceded that they were counterfeit. He continued by saying that two friends were involved and that they had asked for the licences to be delivered to him by their family members in Pakistan – he saw nothing wrong with that. Upon his return to Adelaide, he gave one blank licence package to Ali Ahmadi and the other package to Mehrab Hussaini’s wife – for persons in that family.
Mr Azimi stated that he did not appreciate that blank licences were illegal. The Tribunal finds this somewhat implausible. Mr Azimi lived in Afghanistan and Pakistan for many adult years prior to coming to Australia. During those years it is highly likely that he would have become aware of the apparently common practices within Afghanistan’s government institutions regarding bribery to obtain favours – such as false driver’s licences; as indicated in exhibit R4 (Corruption Rife in Afghan Traffic Departments). From his time living in Australia, he would have become aware of the strict identification criteria required for an Australian driver’s licence and should have appreciated the difference.
Mr Azimi then stated that he trusted both Mr Ahmadi and Mr Hussaini but he will now be more careful. He is still in limited contact with them in Adelaide and he now does not want to be part of the Adelaide Afghanistan community. He did not wish to expand on that statement.
The respondent then asked Mr Azimi why neither Mr Ahmadi or Mr Hussaini made mention in their individual Statutory Declarations, of their having asked Mr Azimi to bring back driver’s licences on their behalf from Afghanistan. He responded that he did not know why.
The respondent then asked whether he expected the Tribunal to accept:
… that two different friends arranged for two or three fake documents to be given to you, you never looked at them, you never knew what they were, you brought them into Australia without that knowledge, when they were shown to you at customs that they were blank documents but handed back to you, you still handed them back to Mehrab’s family and Ali Ahmadi and you had no idea that there was anything wrong with them. That is your story?
At paragraph 19 of your statement you say:
I am very sorry for the purposes these driver’s licenses were used and for my actions in contributing to this, no matter how inconsequential they were.
Mr Azimi responded by stating that his actions were “inconsequential”.
Mr Azimi then acknowledged that he should not have trusted Mr Ahmadi or Mr Hussaini and that he had learnt his lesson. When asked about his statement at paragraph 20(c) of his Affidavit:
“where you say you have endeavoured to become a better person by limiting the contact you have with the individuals who used the licenses in a fraudulent manner. Now, by these individuals, you mean Mehrab and Ali don’t you?”
Mr Azimi answered “Yes”.
He was then asked:
“It’s difficult for you to say to this Tribunal that you’ve limited your contact with them when you have provided statutory declarations or statements in support. So you haven’t really limited your contact with them, have you?”
Mr Azimi replied:
“It’s because I don’t want to be in contact with them and I’m in Perth as well and I’m busy as well.”
Mr Azimi was asked by the respondent why the Tribunal should place any credibility on the statutory declarations of Mr Ahmadi and Mr Hussaini as to his character, given that they were the persons who received the documents, fully aware that they were counterfeit. Mr Azimi’s reply was evasive.
Mr Azimi was then referred to the Statutory Declaration (A6) of Mr Ghulam Nabi Danish attesting to Mr Azimi’s character. Mr Danish also provided evidence by telephone. He stated that he was a great friend of Mr Azimi and had been for more than ten years, having lived in the same village in Afghanistan and again within the Adelaide Afghanistan community. They attended the Imam Ali Mosque together, interacting frequently. He was aware of the fraudulent licence issue.
In his written Statutory Declaration, Mr Danish stated:
any behaviour by Abdula that could in any way be linked to fraudulent activity would be very out of character. I know Abdula is very sorry for what he has done.
Mr Danish lives next door to the Azimi house in Adelaide. Mr Danish gave oral evidence affirming his Statutory Declaration and stated that he considered Mr Azimi to be of good character. He went on to say that had he suspected that Mr Azimi had prior knowledge of the counterfeit licences:
then I would have felt he is not a good person and he didn’t do the right thing.
CONSIDERATION
Mr Azimi was instrumental in the transportation of three counterfeit Afghanistan driver’s licences from Quetta in Pakistan to Adelaide Australia on 9 June 2012. He states that he was not aware of the licences being counterfeit until he noticed that they were blank of bio-data when discovered by Customs officials at Adelaide Airport. Despite the fact that they were inexplicably returned to him by those Customs officials, Mr Azimi did not destroy the licences but instead delivered them to those persons who had organised their delivery to him in Quetta.
Mr Azimi is a mature person who presented well at the Tribunal, however, at no time did he volunteer an explanation as to why he took no action to destroy the licences immediately when it became apparent to him that they were fake licences – that is, they each had a photograph but no bio-data entered upon them. The Tribunal opines that an honest person would have either surrendered the licences to authorities or destroyed them immediately as the implications for their use would have been apparent.
Mr Azimi maintains that the licences were handled in Quetta and placed in his luggage by his (then) 12 year old brother. Mr Azimi stated that he did not see the licences in their plastic bags but he was aware they had been packed. He further maintained that he did not see the licences until they were opened at Adelaide Airport.
Mr Azimi stated that he trusted both Mr Ahmadi and Mr Hussaini but is now aware that he had done the wrong thing by transporting the counterfeit licences for the two men. He further stated that he no longer wished to remain in contact with the men but he had contacted them to seek character references for this hearing.
The Tribunal does not believe that Mr Azimi is not in regular contact with at least Mr Hussaini who Mr Azimi admitted was a good friend. Interestingly, Mr Azimi also stated that he moved to Perth as he “endeavoured to become a better person”. This, coupled with his statement that he no longer wished to mix with the Adelaide Afghanistan community leads the Tribunal to suspect that Mr Azimi’s relationships there had perhaps soured to some extent, prompting the move to Perth.
At T15, page 187, is an email from Ms Kate Butler of DPTI Adelaide in which she affirms that the three counterfeit licences were used by Ali Ahmadi, Mohammad Amin Amiri and Ali Akbar Gholami when attempting to obtain Australian driver’s licences. It appears to the Tribunal that prior to Mr Azimi leaving for his trip, Ali Ahmadi deliberately planned to obtain a counterfeit licence from Afghanistan and that he utilised family connections in Afghanistan to deliver such a licence to Mr Azimi in Quetta. It is equally apparent to the Tribunal that Mr Mehrab Hussaini also deliberately organised to have two counterfeit driver’s licences obtained through family connections in Afghanistan and to ask his friend Mr Azimi to bring them back to Australia. It is now apparent that Mr Hussaini passed those licences on to members of the Afghanistan community in Adelaide and not to members of his own family, with the full knowledge that they were to be used fraudulently to obtain Australian driver’s licences.
The Tribunal does not believe that Mr Azimi was ignorant of Mr Ahmadi’s purpose in seeking the Afghanistan licence and equally the seemingly belated request by Mr Hussaini for the same. Given the apparently popular custom of obtaining a false driver’s licence in Afghanistan, the Tribunal suspects that Mr Azimi was familiar with the practice and was therefore in full understanding of what was being requested of him.
The Tribunal places no weight on the Statutory Declarations of Mr Ahmadi or Mr Hussaini in view of their devious attempts to dismiss their own criminality relating to the trafficking of fraudulent driver’s licences. The two documents do not stand as character references for Mr Azimi.
Section 21(2)(h) of the Act relevantly provides:
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
The determination of “Good Character” is often subjective but in Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 139 ALR 84 where Lee J noted at [94]:
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 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 while the latter is a review of subjective public opinion.
It is the Tribunal’s finding that the moral qualities of Mr Azimi are in question here.
At page 149 of the Citizenship Policy, enduring moral qualities encompasses the following concepts:
·Characteristics which have been demonstrated over a very long period of time
·Distinguishing right from wrong
·Behaving in an ethical manner, conforming to the rules and values of Australian society
The Tribunal notes the references at paragraphs 11 to 16 above when assessing the “good character” of Mr Azimi. In particular, the Citizenship Policy at page 149 provides the following guidance:
Would a person of good character have behaved the way the applicant did?
What is there to demonstrate that the applicant has upheld and obeyed the law?
Has the applicant behaved in accordance with Australia’s community standards?
Does the applicant share Australia’s democratic beliefs and respect its rights and liberties?
The Tribunal finds that Mr Azimi failed to meet the requirements of the Citizenship Policy at page 149 in that he failed to behave in a manner befitting an honest person by not destroying the counterfeit licences as soon as he became aware of them; failed to recognise and obey laws relating to false documents; and, failed to behave in accordance with Australian community expectations. Mr Azimi’s democratic beliefs were not in question.
Citizenship Policy Chapter 11 page 147 states that an applicant of good character would:
Respect and abide by the law in Australia and other countries.
…
be truthful and not practise deception of fraud in their dealings with the Australian Government, or other governments and organisations.
not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia.
The Tribunal concludes that Mr Azimi failed to immediately extract himself from associating with those who do not uphold and obey the laws of Australia in that he continues to associate with the two perpetrators in the counterfeit licence incident. The Tribunal does recognise that Mr Azimi’s recent move to Perth may be an initiative to re-establish himself in a less confronting Afghanistan community in Perth.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 where Deputy President Breen stated:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.
Mr Azimi must demonstrate that he upholds Australian community standards in regard to being of ‘good character’ and in holding enduring moral fibre, and only his future actions over time will prove that. The Tribunal recognises Mr Azimi’s determination to grow his business and raise his family with honesty, integrity and by hard work and for that he is to be commended. However, his actions connected with the counterfeit driver’s licences are pejorative and adversely affect his application for citizenship in this instance. That is not to say that he cannot apply again in the future when sufficient time has passed and he can further demonstrate his commitment to Australian law and community expectations
DECISION
The decision under review is affirmed.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Mr W. Evans, Member .......[Sgd].................................................................
Administrative Assistant
Dated: 20 September 2016
Date of hearing 21 July 2016 Counsel for the
ApplicantMr D Blades Representative for the
RespondentMr A Gerrard Solicitors for the Respondent
Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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