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

[2021] AATA 4733

Balladraf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4733 (17 December 2021)

Division:GENERAL DIVISION

File Number:          2020/2886

Re:Saleh Balladraf

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:17 December 2021

Place:Sydney

The decision of the delegate of the Minister made on 7 May 2020 to refuse the Applicant’s application for Australian Citizenship by conferral pursuant to s 24 of the Australian Citizenship Act 2007 (Cth) is affirmed.

..................................[sgd]......................................

Senior Member M J McGrowdie

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral – assessment of ‘good character’ as required by the legislation – incorrect information contained in the application for citizenship – decision of Minister’s delegate refusing the application affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) s 21(2)(h) and s 24(1A)

CASES

Zheng v Minister for Immigration and Citizenship [2011] AATA 3  

Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

SECONDARY MATERIALS

Australian Citizenship Policy Statement  

Citizenship Procedural Instruction

REASONS FOR DECISION

Senior Member M J McGrowdie

17 December 2021

INTRODUCTION

1. The Applicant was born in India in 1974 and is a citizen of that country.

2. On 24 June 2010, while living in New Zealand, the Applicant applied for and was then granted a temporary (Visitor) (subclass 676) visa to visit Australia. The visa was issued for one month with no further stay. The Applicant arrived in Australia on 21 July 2010.

3. The Applicant continued to stay in Australia and married Ms B on 23 April 2011. He had commenced contact online with Ms B before leaving New Zealand. For a period of time, the Applicant remained in Australia as an illegal immigrant and then was granted a series of bridging visas.

4. On 3 April 2013 a request by the Applicant to waive the “no further stay” condition from his temporary visa was granted. Shortly thereafter the Applicant sought a partner visa upon the basis of his relationship with Ms B. A temporary partner visa was granted on 18 March 2014 and a permanent partner visa on 28 February 2017.

5. On 29 March 2018 the Applicant lodged an application for citizenship by conferral. On 7 May 2020 the Minister’s delegate refused the application upon the basis that the delegate was not satisfied that the Applicant was a person of good character as required under the citizenship legislation.

   ISSUES

6. The primary issue for determination is whether the Tribunal can be satisfied that the Applicant is a person of good character for the purposes of s.21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).

7. In addressing that issue, it is relevant to consider the Applicant’s conduct over a number of years particularly in relation to visa matters in relation to his stays in Australia and other countries.

   THE LEGISLATION

8. Section 24(1A) of the Act provides that the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied, as required by section 21(2)(h), that the person is of good character.

9. The term “good character” is not defined in the Act, however, guidance is provided to decision makers in the Australian Citizenship Policy Statement (the Policy) and the revised Citizenship Procedural Instruction (the Instruction).

10. In the Policy, under the heading “General eligibility” it is stated that it is necessary that the Minister be satisfied that the person is of good character at the time of the Minister’s decision on the application. There is reference in the Policy to CPI 15 of the Instruction.

11. CPI 15 is entitled “Assessing Good Character under the Citizenship Act”. According to the Instructions, good character refers to the enduring moral qualities of a person. It does not mean that a person must be of perfect character. In Zheng v Minister for Immigration andCitizenship [2011] AATA 304, DP Forgie considered that the values a person holds are not to be assessed in the abstract but are measured “in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do”.

12. In CPI 15.4, reference is made to the proposition that a person of good character would not practice deception or fraud in dealing with the Australian Government. In CPI 15.6, reference is made to the citizenship character assessment as being informed by the Applicant’s conduct prior to applying for a visa and during their time in Australia.

    BACKGROUND

13. The Minister’s office wrote to the Applicant in respect of his application for citizenship in relation to various matters of concern. These concerns included the Applicant’s previous time in the United States. After a second marriage in the US, there had not been a divorce, suggesting that when he married Ms B in Australia, it was a bigamous marriage. A concern was also raised that the Applicant initially arrived in Australia on a tourist visa when it appeared that he came to pursue a relationship with Ms B. There were also concerns regarding the Applicant’s stay in the US.

14. In the Applicant’s application for citizenship, details were provided as to where he resided at various times. For instance, in his application it was indicated that he had lived in India between April 2003 and September 2008 and between September 2008 and October 2009, when in fact the Applicant was living in the US. In his application the Applicant had said he had visited the US on business between November 2002 and April 2003.

15. The Applicant’s general response was that his partner, Ms B, who is an accountant, completed his application for citizenship and he had merely signed it, trusting that the details were correct and indicating that paperwork was not one of his strengths.

16. With regard to his second marriage in the US, the Applicant’s evidence was that he believed that the paperwork to obtain a divorce was attended to by his second spouse in the US just as it had been attended to by his first spouse, also in the US, in relation to his first marriage.

17. The information provided in the application for citizenship in relation to past employment was that the Applicant had worked as a sales manager in India between 1994 and 2010. There was no mention of him working in the US which he had for many years. The Applicant indicated in the application that he had lived in India, New Zealand and Australia with no mention of the US.

18. The Applicant had lived and worked in the US after he had been granted a ten year visa with there to be no one stay in that ten year period for more than 6 months during that ten year period. At one point he was taken into immigration detention in the US for overstaying in that ten year period and charged accordingly. However, it appears that the matter was resolved and the Applicant’s continued stay in the US was regularised. Nonetheless, there was no disclosure of this charge in the Applicant’s application for citizenship in Australia.

19. Furthermore, details of past employment supplied by the Applicant in his application for citizenship was incorrect.

20. The Applicant and Ms B have now separated. In the Applicant’s application for a partner visa on 6 April 2013, it was stated that he had not been married to or been in a defacto relationship with any person other than Ms B. In a Queensland Marriage Certificate relating to the Applicant’s marriage to Ms B, the Applicant’s marital status was stated to be “Never Validly Married” as opposed to “never married”. In the case of Ms B, it was “never married”.

21. In a Statutory Declaration made on 6 July 2020 the Applicant states:-

    The decision made by the delegate of the Minister, reflects the disappointment about the non-disclosure of my marriage and the life in the US. I did not intentionally conceal that information. My circumstances, fear, trauma and disappointment in life, I was undergoing at that time period pressurized me with a tremendous stress to accommodate any way to apply for residency.

    I sincerely apologise for my mistakes in my life for giving such information without full disclosure.

22. There is a letter in evidence dated June 12, 2022 from the Applicant’s second wife in the US. In that letter she states that their marriage ended in 2009. She goes on to state that she was to arrange for the divorce but the process was difficult for her and she lacked the funds to see it through. A further matter she had considered was that, as the Applicant had left the country, it probably wasn’t necessary in any event. The letter also states that after ten years she was contacted by the Applicant and the Applicant was helping financially to have the matter finalised. It appears that this action on the part of the Applicant was prevented by the problems he was having with his citizenship application.

23. During the hearing it was put to the Applicant by the Respondent that the Applicant should not have simply left it to his wife in the US without following the matter up earlier. It is clear that the Applicant was able to contact his wife in the US once it had become a problem for him. It might be that that the Applicant neglected to ascertain that the divorce had gone through particularly when he had gone through a previous divorce from his first wife in the US, which she had attended to, and of which he had been made aware.

    DISCUSSION

24. In Australia, the Applicant appears to have assimilated well. During his time with Ms B from whom he is now separated, he was very supportive of her and in particular with regard to her ill-health for several years. This had previously been indicated by her in support of a partner visa application.

25. However, Ms B appears to have changed her attitude towards the Applicant since their separation. In fact, Ms B wrote to the Department in early 2020 referring to fraud on the Applicant’s part and asserting that the Applicant remains married in India and had children in that country, that he had spent many years in the US, was still married to a woman there and had a criminal history there. Despite saying that she would send everything to the Department, Ms B did not do so. The assertion that the Applicant had a wife in India was not made out. How Ms B came by information contained in relation to her allegations is not made clear except that she says in relation to a wife and children in India that “he [the Applicant] came clean last year about them”.

26. This led the Department to make a chain of enquiries about the Applicant’s previous marital status and his time in the US. The Applicant has denied that that he ever had a wife or children in India.

27. Ms B was not called to give evidence by the Respondent.

28. One can only speculate what information Ms B had at the time she filled out the citizenship form on the Applicant’s behalf or whether she simply acted on limited information supplied to her by the Applicant. The Applicant does say, however, that he gave Ms B his passport. Whatever the case, the Applicant signed the application and declared that the information supplied was true and correct which it clearly was not. At the very least, the Applicant did not responsibly check the information contained in the application. That the Applicant deliberately presented false information is speculative. What is clear is that the Applicant did not demonstrate an appreciation of the need to provide clear and accurate information as a necessary part of an application for citizenship.

29. Since being in Australia, the Applicant has established a successful metal recycling business which expanded into the repair of white goods. This is certainly to his credit. In India he completed high school. He retains an accountant to assist with the accounting aspects of the business.

30. The Applicant called witnesses in relation to his character. Mr Mohamed Yaghi gave evidence of his friendship with the Applicant. Mr Yaghi is an accountant and has been a neighbour of the Applicant for many years. He said he regarded the Applicant as a man of his word and was also as a charitable man. Mr Yaghi would see the Applicant at the mosque and sometimes they would have coffee together. Mr Yaghi had made a Statutory Declaration dated 22 January 2020.

31. Mr Mohamed Nadvi gave oral evidence. Mr Nadvi read prayers at various mosques and had come to know the Applicant. He said that over the last couple of years he would see the Applicant once or twice a month and regards the Applicant a generous and charitable man of good standing in the community. Mr Nadvi agreed that it was someone else who prepared the Statutory Declaration and although he signed it, his English was not good and it may have contained some errors including that he had known the Applicant for more years than was in fact the case.

32. Mr Khobor Jaghbir gave oral evidence and had made a Statutory Declaration dated 23 January 2020. Mr Jaghbir said he was a mobile mechanic. He said he had known the Applicant for many years and was a close friend. He would sese the Applicant several times a week. Mr Jaghbir said that the Applicant told him of the application for citizenship which the Applicant had made and that the application form was completed by Ms B. He also attested to the Applicant’s charitable nature. Further, he said how the Applicant was remorseful for not checking his application.

33. Whatever might be said regarding the Applicant’s feeling of remorse, he had wanted to keep things simple and avoid complications with the application and that was the suggestion made to him by Ms B. The Applicant let the application proceed as it was and did not take the responsibility to ensure that the information in the application was true and correct such that there was a disregard for the process which a responsible member of the community would consider to be of upmost importance especially in dealing with government and when the privilege of citizenship was being sought.

34. As stated by DP Breen in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, at [8]:-.

    The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community.

35. There is reference in the Policy CPI 15 - 3.3 to the Federal Court and the Tribunal adopting the meaning given to the terms ‘good character’ by the Full Federal Court in Irving v Ministerfor Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; at 431-432 where the Court stated:-

    the words “good character” should be taken to be read in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and the good standing, fame or respect of that person in the community.

36. The Policy goes on to state that:-

    The phrase ‘enduring moral qualities’ encompasses the following concept:

    ·characteristics which have endured over a long period of time;

    ·distinguishing right from wrong; and

    ·behaving in an ethical manner, conforming to the rules and values of Australian society.

37. In terms of determining whether the Tribunal is, or is not, satisfied that a person is of “good character” for the purposes of the legislation involves the exercise of a value judgment (Irving).

    CONCLUSION

38. At the hearing the Applicant presented himself in a genuine way. He detailed how he had built a successful business and in that has contributed in a positive way to society, employing people and paying taxes. Although there was the infraction in the US that saw him before a Court, there is no record that the Applicant has any criminal convictions and no history of violence. He has brought evidence from witnesses who described his charitable nature and involvement in the local community. The Applicant has also regularised his immigration status in Australia and is the holder of a permanent visa.

39. Despite those positive matters there is a history of transgressions in relation to immigration matters. Of considerable importance is the Applicant’s failure to provide information that was not false in his application for citizenship when dealing with government authority. In particular, his application for citizenship was based on information that was incorrect and misleading.

40. Whilst the Applicant sought to attribute blame for this to Ms B, it does not excuse his personal responsibility to provide accurate information to government. This is the very government from whom he sought the conferral of citizenship. As previously outlined, there have been a number of times where the Applicant has not complied with government requirements.

41. Such requirements are not simply matters of government but go to a standard of conduct existing in the community. In my view the necessity of acting responsibly, particularly with regard to official matters, is the expectation for a person showing moral qualities required of a person of good character.

42. In respect of the current application for citizenship and on the evidence, I am not satisfied that the Applicant is a person good character within the meaning of and as required by the legislation.  This does not mean that the Applicant is any way precluded from making a fresh application for citizenship in the future.

    DECISION

43. The decision of the delegate of the Minister made on 7 May 2020 to refuse the Applicant’s application for Australian Citizenship by conferral pursuant to s 24 of the Australian Citizenship Act 2007 is affirmed.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

....................................[sgd]....................................

Associate

Dated: 17 December 2021

Dates of hearing:	8 April 2021; 5 May 2021; and 1 July 2021
Counsel for the Applicant:	L. Karp
Solicitor for the Applicant:	C. Subramaniyan, Success Lawyers and Barristers
Solicitor for the Respondent:	I. Tobin, Clayton Utz