Bashi and Minister for Immigration and Border Protection (Citizenship)
[2016] AATA 453
•30 June 2016
Bashi and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 453 (30 June 2016)
Division
GENERAL DIVISION
File Number
2014/5073
Re
Romel Bashi
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President F J Alpins
Date 30 June 2016 Place Melbourne The decision under review is affirmed.
[sgd]........................................................................
Deputy President F J Alpins
CITIZENSHIP – acquisition of Australian citizenship by application – citizenship by conferral - cancellation of approval given to a person becoming an Australian citizen – whether person is not of good character
Legislation
Australian Citizenship Act 2007 (Cth), ss 21, 24, 25, 26, 52
Cases
Al Temimi v Minister for Immigration and Border Protection [2014] AATA 97
Amosa and Minister for Immigration and Border Protection [2015] AATA 55
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection [2014] FCA 393Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48
Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Prasad and Minister of Immigration and Ethnic Affairs [1994] AATA 326
Setiawan and Minister for Immigration and Border Protection [2014] AATA 682
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Tacalan v Minister for Immigration and Border Protection [2014] AATA 767
Zheng and Minister for Immigration and Citizenship [2011] AATA 304Secondary Materials
Australian Citizenship Instructions, Chapter 10
Citizenship Policy, Chapter 11
REASONS FOR DECISION
Deputy President F J Alpins
30 June 2016
INTRODUCTION
This is an application for review of the decision of the respondent’s delegate made on 2 September 2014 to cancel the approval of the applicant, Mr Romel Bashi, becoming an Australian citizen. That decision was made pursuant to s 25(1) of the Australian Citizenship Act 2007 (Cth) (the “Act”) (see s 52(1)(c) of the Act). The approval was cancelled on the basis that the delegate was satisfied that Mr Bashi was “not of good character” for the purposes of s 25(2)(b)(iii) of the Act.
LEGISLATION AND POLICY
Legislation
Div 2 of Pt 2 of the Act concerns the acquisition of Australian citizenship by application. Subdivision B of Div 2 (ss 19G – 28) provides for citizenship by conferral. Section 24(1) provides that, if a person makes an application to become an Australian citizen under s 21, the Minister must approve or refuse to approve the person becoming an Australian citizen.
Section 25(1) of the Act provides that “[t]he Minister may, by writing, cancel an approval given to a person under section 24 if ... the person has not become an Australian citizen under section 28” and one either of two situations prescribed in subsections 25(2) or 25(3) apply. Relevantly, s 25(2) enumerates the criteria which must be fulfilled for the first situation to apply:
“(2)The first situation applies if:
(a)the person is covered by subsection 21(2), (3) or (4); and
(b)the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.”
Section 25(5) concerns the effect of cancellation of an approval given to a person under s 24 of the Act – it provides that “[i]f the Minister cancels an approval given to a person, the approval is taken never to have been given”.
The issue before the Tribunal upon review is whether the Tribunal is satisfied that Mr Bashi is not of good character for the purposes of s 25(2)(b)(iii) of the Act (see Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [97]-[101]). Accordingly, the Tribunal must be positively satisfied of a negative matter – that he is not of good character.
I note by way of contradistinction that s 21(2) of the Act, which relevantly arises in the context of s 25(2)(a) and concerns general eligibility for citizenship, differs from s 25(2) not only in temporal terms, that is to say as to when the Minister must possess the requisite state of satisfaction (see Grass v Minister for Immigration and Border Protection [2014] FCA 393 at [7] per Buchanan J) but also, more significantly, because that provision requires the Minister, and therefore the Tribunal, to be satisfied that the person is of good character.
Citizenship Policy
It is appropriate for the Tribunal to have regard to the policy expressed in the Citizenship Policy (the “Policy”), which very recently replaced the policy guidance previously provided in the form of the Australian Citizenship Instructions, in reviewing the respondent’s decision (see Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48 at [73]-[82]), although as I explain below there has been no change in policy material to this case.
However, the Tribunal is not bound by the Policy, as the law lies in the statutory text rather than in the policy (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69-70 per Bowen CJ and Deane J). In any event, in my view the relevant parts of the Policy provide assistance in the application of s 25(2)(b)(iii) of the Act.
Chapter 11 of the Policy is designed “to provide guidance on the administration of the ‘good character’ provisions under the Act and to define, for administrative purposes, the meaning of ‘good character’”. It is stated in the prefatory words that:
“It is not departmental policy for decision makers to be bound by a check-list. Decision makers need to look at the merits of each case and to turn their minds to the issues of character until they are ‘satisfied’, on a reasoned basis that an applicant is, or is not, of good character.”
Under the heading “What is good character”, it is stated that:
“ ‘Good character refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.” (Emphasis added.)
Characteristics of good character are enumerated later in the chapter, in what is said to be a non-exhaustive list. It is stated that “an an applicant of good character would”, amongst other things:
·Respect and abide by the law in Australia and other countries
·Be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
·Be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
o providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
...
o concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
...
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people[.]
Under the heading “Weighing up the character decision, it is stated that:
“Essentially, the question for decision makers is whether any mitigating circumstances and/or explanation provided by the applicant outweigh the behaviour in question. The assessment about whether an applicant is of ‘good character’ requires the consideration of an aggregate of qualities. Decision makers should place more weight on significant offences.”
I note in passing that Chapter 10 of the predecessor policy in the Australian Citizenship Instructions differed from Chapter 11 of the Policy in that it enumerated factors to take into account when assessing good character, in a very prescriptive manner. However, given the aspects of the Policy to which I have referred above, particularly the “Characteristics of good character”, the principles to be derived from relevant authorities and my reasons which follow, there is no difference between the predecessor policy and the Policy which would have led me to reach a different conclusion with respect to the issue before the Tribunal.
FACTS AND EVIDENCE
Mr Bashi gave evidence by way of witness statement; he was cross-examined and re-examined with the assistance of an Arabic interpreter.
Mr Bashi was born in Iraq in December 1981. Mr Bashi explained that when he was 16 years old, his father suggested that he travel to Jordan to work and because he wanted him to avoid conscription into the army when he reached 18 years of age. However, under cross-examination, Mr Bashi said that his father said he should leave the country in order to help his family remaining in Iraq.
Mr Bashi lived and worked in Jordan for six months. In his witness statement, Mr Bashi said that, while living there, his cousin suggested that they travel to Lebanon, as their work prospects might be better there. However, under cross-examination, Mr Bashi said that his decision to travel to Lebanon was motivated by the fact that there “was some problem” [sic] for the Iraqi community in Jordan.
While Mr Bashi had a visa permitting entry into Jordan, he did not obtain a visa to travel to Lebanon. Under cross-examination, Mr Bashi stated that he and others in a group instead paid $400 each to people smugglers to reach Lebanon, as “[i]t was more expensive” to obtain a visa and also that “it was better for me to be with my relatives” who arranged to travel to Lebanon in such a way.
He lived in Beirut with friends and worked there, sending money to his family. Early one morning the police arrived at Mr Bashi’s cousin’s house, where he was staying; Mr Bashi told them that he did not have any documents establishing his identity with him. Under cross-examination, Mr Bashi said that he did have his certificate of Iraqi citizenship with him at the time; he said that the police “didn’t give me a chance” to show it to them and denied that he withheld it because he was seeking to avoid his illegal entry into Lebanon being revealed.
Mr Bashi was arrested at his cousin’s house, interrogated by police and consequently charged with armed robbery; Mr Bashi gave evidence that he was informed under interrogation that the charge related to an incident involving a home invasion by a gang.
The documents before the Tribunal establish that, in February 2001, Mr Bashi was sentenced by a Lebanese Criminal Court to five years imprisonment and deportation for theft, rather than armed robbery. It is apparent from Mr Bashi’s evidence, considering his witness statement as a whole together with his evidence given under cross-examination, that the charge of armed robbery and his conviction for theft were both related to the same events. In his evidence given in his witness statement, as clarified under cross-examination, Mr Bashi stated that he appeared without representation before the court briefly on three occasions, that “[t]here was no trial, no jury, no evidence called” and that “[t]he allegations against me were never tested”.
In his witness statement, Mr Bashi stated that he was also convicted for illegal entry into Lebanon. Under cross-examination, Mr Bashi was not ultimately able to recall whether he had been asked at any stage during his appearances before the court whether he was in Lebanon illegally, although he had previously admitted that that was so to the investigators. The better view, based on the documents before the Tribunal, particularly a copy of his Lebanese criminal record and a letter from Lebanese authorities dated 8 March 2014, is that Mr Bashi was found guilty of theft and was sentenced to five years’ imprisonment on that account and also to deportation – the documents do not establish that illegal entry constituted a separate charge; rather, I infer that deportation was ordered given that he was found to be in Lebanon illegally. In any event, given the reasons that follow, nothing ultimately turns on that distinction.
Mr Bashi did recall that he had denied to the court that he was guilty of any crime relating to the alleged home invasion – under cross-examination, Mr Bashi said that he was asked whether he had “commit[ted] a theft with people” and that he had denied it. In his witness statement and under cross-examination, Mr Bashi continued to maintain his innocence, despite his conviction for theft.
After serving his sentence, Mr Bashi returned to his family in Iraq. His family were fearful for their safety in Iraq, given that they are Chaldean Christians. Accordingly, in 2007 Mr Bashi and his family left Iraq, travelled to Syria and began living in Damascus. Mr Bashi worked there as a carpenter. After six months, Mr Bashi and his family registered for resettlement with UNHCR (The United Nations Refugee Agency).
In his witness statement and under cross-examination, Mr Bashi admitted that, in making his application for a Global Special Humanitarian (subclass XB202) visa, he did not disclose his criminal record in Lebanon. Mr Bashi said in his witness statement that when he and his family were preparing their visa applications, they “spoke to an Iraqi man in Syria who had helped a lot of people do their applications successfully” and “who knew how the UNHCR process worked and how to fill in the forms”. Under cross-examination he describe the man as “help[ing] [Iraqis in Syria] in making the story”, in that he “look [sic] to the story the family give to him and he see [sic] if it’s helpful or beneficial or not .. to put in the application”. Mr Bashi said that his family had paid the man between $US500 and $US700, which was a considerable sum for his family. He said that “this was our only hope to leave this place and go to another country”.
Mr Bashi said that, having disclosed his conviction and imprisonment to that man, the man advised him against disclosing that information in “any of my forms because it would mean that my family and I wouldn’t get resettled anywhere”; Mr Bashi said that he followed that advice. Mr Bashi said that the man “did a story” for other people, “different than the story they put themselves and they get approval”. He said further that the man told his family that “Lebanon and the prison, we have to delete it from the story” as “[t]hat’s the only way you can get approval for protection”. Mr Bashi said that his family was told by the man that they had no choice about the matter and that they should instead say that during the period when he was in Lebanon that he had fled to Northern Iraq to avoid military service.
Under cross-examination, Mr Bashi said that the man filled in his application form for him. In his witness statement Mr Bashi said that “I felt torn about this” but that his concern for his family was paramount and that at that stage he “didn’t feel any love or loyalty to Australia the way I do now”.
Mr Bashi was granted a Global Special Humanitarian (subclass XB202) visa and accordingly travelled to Australia with his family on that visa, arriving in 2009. It became apparent on the first day of the hearing that the copy of a completed incoming passenger card set out in Arabic (which had subsequently been translated into English) lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) was not a copy of Mr Bashi’s completed card but rather a copy of the card completed by his father. Accordingly, by consent, the respondent did not ultimately press the tender of that document, nor the translated version of that document.
On the following day of the hearing, the respondent produced what he contended to be the incoming passenger card completed by the applicant, expressed in Arabic, which was then translated in full by the interpreter at the hearing. The form was dated 30 March 2009 and set out the applicant’s name and his date of birth; however, it was not signed. Relevantly, the form set out the question “Do you have any criminal conviction?” and the answer “no” was marked with a cross.
Under cross-examination Mr Bashi, while accepting that the handwriting on the form setting out his name appeared to be his handwriting, denied having written his date of birth in the manner set out in the form, which on its face appeared to have been corrected. Moreover, he insisted that the form he had filled out had instead been expressed in English, which was he unable to understand, and that he had therefore required the assistance of another refugee he knew from Syria who was on the flight in filling in the form. He explained that that man understood English and had translated the form to him into Arabic. Mr Bashi said that he gave the form in the English language to an immigration officer at the entry point into Australia when he presented his visa.
Given Mr Bashi’s denial that the unsigned form before the Tribunal was the form he had completed and the possibility that there might be a signed version by which Mr Bashi had gained entry into Australia, the Department of Immigration and Border Protection (the “Department”) conducted a further search after the hearing but was unable to find any other incoming passenger card bearing Mr Bashi’s name in its possession.
In any event, Mr Bashi gave evidence under cross-examination that he answered the question as to whether he had any previous convictions on the form he did complete negatively; he said that his acquaintance on the flight translated that question from English and read it out to him in Arabic. He also recalled that the person who had read the form to him had read to him the declaration set out in the form that he was required to make, namely that “[t]he information I have given is true, correct and complete” and that “I understand failure to answer any questions may have serious consequences”.
On 1 May 2013, Mr Bashi lodged his application for Australian citizenship with what was then known as the Department of Immigration and Citizenship. In evidence before the Tribunal was a copy of the application form, dated 5 April 2013 and, as accepted by Mr Bashi under cross-examination, signed by him. In that form, Mr Bashi answered the question “[h]ave you been convicted of, or found guilty of, ANY offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent residence application and any ‘spent’ convictions)?” by ticking the box marked “No”. Although it was not the subject of focus at the hearing, I note that Mr Bashi also answered a subsequent question, particularly “[h]ave you ever been removed or deported from any country (including Australia)” negatively.
I further note that the final part of the form contained the following warning:
“WARNING: It is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application” (Emphasis in original.)
The following statement was set out as part of the declaration contained in the final part of the form:
“I declare that the information I have supplied in this form is complete, truthful and correct in every detail.”
Mr Bashi did not dispute that his answer to the question on the form set out above was false. In his witness statement, he said stated that:
“When I was filling in the form for the citizenship, I realized that the same question about convictions and prison was there. I really wanted to tell the truth and reveal what had happened, but I was very scared that if I did that, my whole family’s situation would unravel, and that they might suffer or have their visas or citizenship cancelled because of my conviction.”
Under cross-examination, Mr Bashi said that his then wife assisted him to fill out the form by reading it to him and also by filling out some parts of the form for him. In particular, he said that, with respect to the question concerning past convictions set out above, he said that his wife had read it out to him and that he had answered “no”, and that she had then ticked the corresponding box. Later under cross-examination Mr Bashi said that his wife did not read out the question but instead asked him “[d]id you go to jail? … [d]id you spend time in prison?”
Mr Bashi married in 2013 but separated from his wife in acrimonious circumstances four months later. At the time of completing his citizenship application form they had been married for two months, having met 18 months earlier. Under cross-examination and in answer to a question posed by the Tribunal, Mr Bashi said that, although he had “told her the whole story” concerning his conviction and imprisonment for theft and his illegal entry into Lebanon before they had married, they did not discuss his intended answer to the question and, when he said that the answer was “no”, “she didn’t say anything”, despite knowing of his conviction, and that they then continued to complete the form. He said that he knew at the time that she had ticked the box corresponding with his answer. I return to this aspect of Mr Bashi’s evidence shortly.
Mr Bashi said under cross-examination that his wife did not read out to him the section of the form containing the warning and relevant part of the declaration to which I have referred. However, he accepted that, as put to him “it is important that immigration forms are filled out truthfully and correctly”.
Also in evidence before the Tribunal was a departmental form described as a “Declaration of service” completed by Mr Bashi and dated 8 July 2013. As is indicated in the completed content of the form, Mr Bashi confirmed under cross-examination that he had also completed that form with the assistance of his wife. In that form, in the section requiring that the details of the applicant’s tertiary education be provided, Mr Bashi stated that from July 1997 to May 2003 he had undertaken a carpentry course at an “industry institution” in Iraq. Under cross-examination, Mr Bashi admitted that that statement was untrue and said that he had made that statement “[t]o cover up the date [sic] when I was in Lebanon” as “[t]he person who helped me to make the story” in Syria referred to earlier in these reasons “he told me to continue with the same thing in here, to fill the form according to what we – the statement we did”.
When Mr Bashi was reminded of his oral evidence that he had been told by the man in Syria who had assisted with his visa application that he should say that he had fled to Northern Iraq for the period during which he was in fact in Lebanon, Mr Bashi explained that at the time he filled in the declaration of service form what he “remembered from the story” he had been advised by the man in Syria to maintain was that he should claim that he had undertaken a carpentry course, which is why he had made such a statement in that form with respect to the stated period.
However, having regard to Mr Bashi’s oral evidence given under cross-examination and in response to questions posed by the Tribunal considered as a whole, it is somewhat unclear whether Mr Bashi understood the advice he said he was given at the time or later (when completing the declaration of service form), to consist of a “story” that involved successive or contemporaneous activities for the period in question, although his later evidence given under cross-examination suggests the former. In any event, what ultimately matters is that, as Mr Bashi accepted, the statement in the declaration of service form was false and, I infer, was made to conceal the fact of his criminal record in Lebanon from the Department.
In the declaration of service form, Mr Bashi also stated, in the section requiring details of all places in which an applicant for citizenship has lived for six months or longer, that during the period December 1981 to April 2006 he lived in Baghdad, Iraq. Under cross-examination, Mr Bashi admitted that that statement was false in that it omitted the period during which he had lived in Jordan and Lebanon and that his statement was made to conceal his conviction and illegal entry into Lebanon.
While Mr Bashi accepted that, as put to him, at the time he filled in that form he “consider[ed] it to be a wrong thing to do to lie in that way to the Department”, he said that he did it because he “was scared” that if there was any contradiction between his answers to the questions in the form and the answers given by his family in their visa application forms lodged in Syria, “that will affect my family”.
Mr Bashi accepted under cross-examination that, at the time he completed his application for citizenship, he was aware that the visa he held was a permanent visa in that, as put to him, he knew that he “had the right to stay in Australia forever”. When asked why, in view of that understanding, he feared that “telling the truth at the time you applied would affect your rights to stay in Australia forever”, he replied that that was so “[b]ecause some people told me that if you change the story they will expel you from the country ... I would be deported”.
When asked who had told him that, Mr Bashi then said that his wife had told him that her uncle had made such a statement, but that he had not spoken to her uncle about the matter himself. I note that neither Mr Bashi’s former wife (with whom he apparently continues to have an acrimonious relationship), nor her uncle, gave evidence.
This aspect of Mr Bashi’s oral evidence brought into issue his prior oral evidence concerning the circumstances in which he gave a false answer to the relevant question posed in the citizenship application form a couple of months earlier. It became apparent that Mr Bashi’s evidence was that his wife had conveyed her uncle’s statement to him during the course of completing that form, which he then explained had been completed over four or five days, although the questions had been completed in order. In answer to questions posed by the Tribunal, Mr Bashi then said that on the “first day” on which he and his wife were completing the citizenship application form, he “told her that I want to say the truth” and that once they reached the end of the first page of the form, although he later said “after a few pages”, his wife told him her uncle’s view.
Nevertheless, Mr Bashi maintained that when he answered the relevant question in the citizenship application form negatively, despite having previously told his wife that he wished to disclose his criminal conviction, his wife made no comment and that they did not discuss her uncle’s statement again. I consider that aspects of Mr Bashi’s evidence about the circumstances in which he completed his citizenship application form were vague, inconsistent and somewhat implausible.
Mr Bashi’s application for citizenship was approved by the Department on 16 July 2013. However, by letter dated 5 September 2013, the Department notified Mr Bashi that his making of a pledge of commitment was being delayed until 4 September 2014 pursuant to s 26(3) of the Act because consideration was being given to the cancellation of his visa because of information received by the Department.
By letter dated 6 January 2014, the Department notified Mr Bashi that he was being provided with the opportunity to address adverse information which might result in his approval for Australian citizenship being cancelled, on the basis that that information would require the Department to reassess whether he was of good character. The information was stated as follows:
“On 17 December 2013 the Australian Embassy in Beirut received confirmation from the Lebanese authorities that one ‘Roumel Boulos, born 1981’, son of ‘Habib’ and ‘Leila’, was convicted in Lebanon on 22 February 2011 for theft and sentenced to 5 years imprisonment and deportation.
I note that in … your application form, regarding good character and criminal offences, you had stated that you had not been convicted of any offences overseas nor had you ever been deported from any country.”
Mr Bashi responded by email almost a month later, on 4 February 2014, as follows:
“My name is Romel Bashi, you sent me a letter regarding my citizenship, and stated that I was convicted in Lebanon in 2001 and sentenced for 5 years.
I have never entered Lebanon I left Iraq in July 2006 and went to Syria Legally [sic] by passport which the department of immigration has a copy of my passport when we completed our application to enter Australia. I do not have the passports because they went missing from our house, we tried to look for them but could not find them anywhere I strongly believe that my ex-wife took them. I do not know how my name came in your database that I was imprisoned in Lebanon?? All I know is my ex-wife and her family threatened me and told me that they will do the impossible to send me back to Iraq and also said that my whole family will be sent back to Iraq and make our lives miserable. I do not have any proof to show you except my identity card which was issued on 24/08/2005, which I have attached a copy of it. As for the passports I am very certain that the department of immigration has a copy of it which shows my passport number and date of issue.
Please consider my situation because I do not know what will happen to me and my family.” (Emphasis added.)
Under cross-examination, Mr Bashi explained that the email was typed for him by his friend, Mr Carlos Lopez, who gave evidence at the hearing. He said that he told Mr Lopez “the answers” and that he translated them into English.
It was conceded by Mr Bashi at the commencement of the hearing that the statements emphasised in bold above were false. Under cross-examination, Mr Bashi claimed that when he read the letter from the Department, he first thought that he had possibly been mistaken for someone else, because “the names is [sic] not 100 per cent the same”. I note that Mr Bashi had formerly been known, as noted on the documents issued to his family for travel to Australia, as “Romeel Habeb Bulis”, while his mother was known as “Layla”. He then said “[a]nd then I decided not to tell them the truth because I was worried that could affect my family”.
Mr Bashi’s evidence about who he sought and obtained advice from about the Department’s letter was somewhat inconsistent. At an earlier stage of the hearing, Mr Bashi said, in answer to questions posed by the Tribunal that “other people”, being “[p]eople we meet in the cafeteria or coffee shops” had advised him at the time he received that letter to similar effect as his wife’s uncle had advised her; that is to say some such people had said that it would be “dangerous” to change his “story” and that he should not do so “because it could affect your family”. However, I note that Mr Bashi’s evidence at that point seemed somewhat confused, as he appeared, as clarified by his counsel, to be referring to that letter yet also appeared to assume that he received it before he completed his citizenship application.
When Mr Bashi was cross-examined about the Department’s letter and his response at a later stage of the hearing, Mr Bashi said that when he received the letter from the Department, he showed it to Mr Lopez and that they took it to the office of a local Member of Parliament, although he did not obtain advice but was instead asked to provide documents. Mr Bashi said that he discussed the Department’s letter with his family, with respect to how it might affect them, but that they did not advise him “because I’m the elder son in the family”. He said that he only spoke to Mr Lopez about his response to the Department. However, later in his evidence under cross-examination after being taken to another document he appeared to state that he sought advice from a migration agent in relation to the Department’s letter of 6 January 2014.
More significantly, Mr Bashi accepted under cross-examination that he had known at the time he sent his response to the Department’s letter that the false statements to which I have referred were false. When asked why he did not tell the truth, he claimed that he had noted that the letter erroneously stated he had been imprisoned for six years, not five. I note that, in fact, it is stated in the reasons for the respondent’s decision that it was alleged that he was imprisoned for six years, not in the Department’s letter sent in January 2014. Furthermore, as was put to him, Mr Bashi’s concern about chronology expressed at the hearing does not sit well with his unqualified statement in his response that “I have never entered Lebanon”. To the extent that he suggested in his oral evidence that he was confused in some way by the Department’s correspondence as to whether the Department had correctly identified him, I do not accept that evidence.
Mr Bashi accepted under cross-examination that he provided a copy of his identity card (which he obtained one month after his return to Iraq) with his response to the Department because he was hoping to mislead the Department into believing that he was in Iraq instead of in Lebanon during the period of his sentence.
Mr Bashi said that the second reason why he did not tell the truth was “[f]ear that something could happen”.
Mr Bashi was also cross-examined about events following his receipt of the delegate’s letter dated 2 September 2014 informing him of the decision to cancel the approval of his citizenship. He said that when he received it, he discussed it with his family and with Mr Lopez. Mr Bashi’s evidence about the circumstances in which he decided be truthful with the Department about his criminal conviction in Lebanon was inconsistent. At first, Mr Bashi said that he decided to be truthful with the Department with respect to his criminal conviction in Lebanon in about July or August 2014, “before” his parents became Australian citizens. However, he said that he did not take any steps to inform the Department about his conviction before receiving the Department’s decision in September 2014 because he “was a bit hesitant”.
However, later he said that he decided to tell the truth once he was “convinced” that doing so would not affect his family’s applications for citizenship. He said that he decided to tell the Department that he had been convicted of an offence in Lebanon after receiving legal advice, which he obtained after receiving the letter informing him of the delegate’s decision in September 2014. When it was put to him that he had said earlier that he had decided to be truthful before receiving that letter, he said that “[t]hat’s personally I decided that inside myself but I didn’t do it”. Mr Bashi said that “I had a fight internally” before he sought legal advice and that that had been the case when he applied for citizenship.
Mr Bashi said that when he obtained legal advice, he asked whether telling the truth would affect his family’s rights to remain in Australia and was advised that it would not because it was his “own personal problem”. When Mr Bashi was asked why, prior to obtaining that advice, he had believed that the position of his family members might be jeopardised if he was truthful given that only his application for a protection visa had involved a falsehood, he said that it was because of the advice of the man in Syria who had assisted with his family’s visa applications, as he had prepared “a family story”.
Having regard to the documents before the Tribunal. I note that the first admission by Mr Bashi of his criminal conviction in Lebanon was made by him after he commenced this proceeding, and in that context.
Under re-examination, Mr Bashi said that, over the period he had maintained his deception in dealing with the Department, he had felt “worried” and “stressed” and had “felt guilt”. He expressed his happiness in living in Australia, which he now regards as his “only country”.
At the time of the hearing, Mr Bashi worked as a school cleaner, five days per week for two hours per day. In his witness statement, Mr Bashi said that he also receives social security benefits in respect of the care he provides to his mother. Furthermore, he said that his mother suffers from severe depression (although I note that there was no corroborating evidence in that regard) and that she is most concerned that he acquire Australian citizenship. Apart from caring for his mother, he spends his time helping at home, attending social gatherings and playing soccer. Although Mr Bashi said in his witness statement that he attends church, under cross-examination he said that he is not involved in the Chaldean Church or other community organizations. It did not appear to be in dispute that Mr Bashi has not been the subject of criminal charges since his arrival in Australia.
Mr Bashi relied on witness statements made by Mr Bassil Gabara and Mr Salam Khaya. Mr Gabara, amongst other things, said that Mr Bashi “is an excellent member of our community” and described his false statements “on his forms for immigration and citizenship” as “a silly thing to do but I know how frightened he is of returning to Iraq”.
Mr Khaya, similarly to Mr Gabara, described Mr Bashi, amongst other things, as “very respectful” and said “I am sure that he is a person of good character”.
Mr Bashi also relied on the witness statement of Mr Lopez, to whom I have referred earlier in these reasons. Mr Lopez corroborated Mr Bashi’s evidence of having attended the office of their local Member of Parliament upon Mr Bashi’s receipt of the Department’s letter of 6 January 2014. He said that “[e]veryone advised [Mr Bashi] not to tell the truth about being in Lebanon and his time in jail. .. [e]veryone said he and his family would be deported if he told the truth”. Shortly stated, he said that Mr Bashi had been very conflicted with respect to his response to that letter, on one handed being fearful and one the hand being “so stressed about being dishonest in response to the letter”. He described Mr Bashi as “a very good man” who was not naturally dishonest.
Mr Lopez was cross-examined. He said that he had known Mr Bashi since 2009, as his wife “pretty much grew up with them back home in Iraq”. He described Mr Bashi as being “family”. He said that Mr Bashi had told him of his arrest and imprisonment in Lebanon about four years ago and had said that he was “falsely accused”. When asked whether it would change his view about whether Mr Bashi if of good character if he had in fact committed the theft he was convicted of, Mr Lopez said “[w]ell of course it would. ... [i]f he did commit [sic], yes but it’s very hard to believe”.
Evidence of Mr Coffey
Mr Bashi relied upon the evidence of Mr Guy Coffey, clinical psychologist, who had prepared a report dated 1 March 2015. Mr Coffey gave oral evidence and was cross-examined.
In his report, which was based on two interviews of Mr Bashi conducted in February 2015, Mr Coffey provided his opinion “regarding Mr Bashi’s current and past mental health and in particular any relevant psychological considerations in relation to misleading statements he made to the Department ... when applying for Australian citizenship”. After recording Mr Bashi’s personal history as provided by him, he opined that Mr Bashi “did not have any mental disorder at the time I assessed him” and that he did not appear to have a history of mental disorder. Shortly stated, Mr Coffey opined that:
(a)Mr Bashi’s concealment of his criminal conviction in making his visa application had been motivated by well-founded fears for his family, given that he was a refugee, and the advice he had received at the time in Syria;
(b)His concealment of his criminal conviction in making his citizenship application appeared to have been made “in order to avoid undermining the basis for his family’s residency in Australia”;
(c)While he acknowledged that “[q]uestions of character are of course beyond the expertise of a psychologist ... I have concluded that the falsification of his forensic history is not explicable in terms of mental illness or abnormal psychology and is best understood in terms of Mr Bashi’s objectives and circumstances at the time”;
(d)“the dishonesty displayed in his visa and citizenship applications, while serious misconduct, is likely to be situation specific and not a symptom of his personality functioning more broadly” and that “the probability of him engaging in offences involving dishonesty, or indeed other forms of serious misconduct in the future, is reasonably low”.
In his oral evidence, Mr Coffey, said that, based on his experience in treating asylum seekers and refugees, dishonest conduct by refugees can be confined to their particular circumstances at the time and therefore not necessarily indicative of their propensity to be dishonest in the future. – he said that the fact that an asylum seeker might have “misrepresented some aspect of their history ... is not a reliable guide to how they’ll conduct themselves in the future”, which will depend upon their individual characteristics and other factors, given the “very particular context” of such conduct.
Under cross-examination, Mr Coffey maintained his view concerning Mr Bashi’s propensity for engaging in offences involving dishonesty or other serious conduct despite Mr Bashi’s conviction (although he had understood that it was for armed robbery rather than theft) given that he was only 19 years of age when convicted. He said that he had not asked Mr Bashi about his mental state at the time of the events leading to his conviction but had instead focussed on his mental state at the time of his visa and citizenship applications and at the time of their interviews. He said that he did not view conduct in the context of visa and citizenship applications made by refugees as being “a good guide to character” and that a person’s general conduct beyond that particular context would be more indicative of their character.
When Mr Bashi’s response to the Department’s letter of 6 January 2014 was shown to him, Mr Coffey opined that Mr Bashi, “[h]aving lied in Syria, ... futilely, he’s trying to hold that lie together still”. When it was put to Mr Coffey that his opinion as to what had motivated Mr Bashi to make a false statement in his visa application was, in essence, speculation or conjecture or alternatively required expertise he did not possess, Mr Coffey said that that aspect of his report was based on his lengthy experience in hearing the background stories of asylum seekers.
When it was put to Mr Coffey that he had erroneously treated Mr Bashi’s false statements “as being a once-off rather than viewing it as the continuation of ... a pattern of behaviour which evidences his tendency to be dishonest”, Mr Coffey said that “I don’t think it’s a repeated act” and that “[t]his person had told a lie and he hasn’t corrected it”. When the Tribunal asked Mr Coffey how he considered that view to sit with Mr Bashi’s response to the Department’s letter of 6 January 2014, he said “I see that as the perpetuation of the lie that he began in Syria” and “it’s a continuation of the same lie”.
Mr Coffey confirmed under cross-examination that in his view Mr Bashi’s “judgment was... not impaired by mental illness” when he made his visa application, nor when he made his citizenship application and also opined that it had not been so impaired at the time of the events leading to his conviction in Lebanon.
SUBMISSIONS
Given the nature of the statutory question posed by s 25(2)(b)(iii) of the Act, it is convenient to refer first to the respondent’s submissions as to why the Tribunal should properly be satisfied that Mr Bashi is “not of good character” for the purposes of that provision. Shortly stated, the respondent contended that that the following matters should lead the Tribunal to such a conclusion and that his decision should therefore be affirmed:
(a)Mr Bashi’s convictions for theft and illegal entry into Lebanon in 2001, which had resulted a sentence of imprisonment for five years and deportation (although I note my finding above that Mr Bashi’s illegal entry was not the subject of a conviction as such but rather resulted in deportation);
(b)what the respondent submitted as being “Mr Bashi’s persistent and deliberate attempts to mislead the Australian government with respect to these convictions, including by making false statements to the [Department] and its predecessor departments”, particularly in 2007 in his Australian visa application form, in 2009 in his incoming passenger card, in 2013 in his citizenship application and in 2014 in response to the Department’s letter of 6 January 2014.
Shortly stated, Mr Bashi contended that the Tribunal should not be satisfied that he was “not of good character” for the purposes of s 25(2)(b)(iii) despite his conviction for theft (emphasising that the respondent’s reasons for its decision revealed and were founded on an erroneous assumption that he had been convicted of armed robbery) and despite the false statements he now admitted that he had made concerning his criminal record. Mr Bashi contended that he was, despite those matters, nevertheless of “good character” for the following reasons:
(a)the fact of Mr Bashi’s illegal entry into Lebanon should not be taken to be evidence that he was not of good character in itself given his particular circumstances, including that he was later found to be “genuine refugee fleeing persecution”;
(b)Mr Bashi had decided not to disclose his criminal record in Lebanon in making his visa application upon the advice of the man he had referred to in Syria and out of concern to ensure that he and his family achieved resettlement in another country, so that “his dishonesty was purely situational”, relying on the opinion of Mr Coffey in that regard;
(c)the (as it was described in his statement of facts, issues and contentions and closing written submissions) “misleading” statement he had made in his citizenship application form had been made “in a situation of extreme pressure”, adverting in that regard to his evidence as to the advice he had been given in Syria by the man assisting with his family’s visa applications and because he “felt that it was too late to change his story and declare his history .... having regard primarily to the fear he held of refoulement and for the welfare of his family”, relying again on Mr Coffey’s evidence;
(d)the “misleading” statements he had made in his response to the Department’s letter of 6 January 2014 had been made out of fear that he would jeopardise his family’s status in Australia if he admitted his criminal record in Lebanon and out of concern for his mother’s health, which was “quite poor” (although, as I have noted, there was no corroborating evidence in that regard);
(e)having regard to the evidence given by Messrs Lopez, Gabarra and Khaya.
Mr Bashi contended that his “dishonesty should be characterised as a single dishonest decision that was then continued over a period of time by failure to correct it” and not as a “long series of proactive deceptions”. In essence, Mr Bashi contended, relying on the evidence of Mr Coffey, that all of his “misleading” statements should be found to have their genesis and motivation in the circumstances of “extreme exigency” (see Setiawan and Minister for Immigration and Border Protection [2014] AATA 682 at [42]) in which he and his family found themselves when in Syria seeking resettlement and in his decision to conceal his criminal record made there when applying for a visa. In his written submissions in reply, Mr Bashi submitted that:
“The applicant submits that the conduct was sparked by a decisions [sic] made by Mr Bashi in Syria, and that all subsequent conduct flowed from that (admittedly unwise) decision. There was no fresh deception; the points in time at which Mr Bashi made further misleading statement to the Department were incidents of the one deception, under the shadow of which Mr Bashi found himself living. The snowball was gathering momentum and, until his family’s citizenship was safe and secure, Mr Bashi believed that he had no choice but to let it roll. This is supported by the timing of his admission to the Department of his true identity and background”.
I note that Mr Bashi contended in the alternative in his statement of facts, issues and contentions that, even if the Tribunal were to find that he is not of good character for the purposes of s 25(2)(b)(iii) of the Act, the “discretion enlivened by that finding” should “be exercised in his favour”, presumably so as not to cancel his approval pursuant to s 25(1), because:
(i)he poses “no risk or threat whatsoever to the Australian community” relying in this regard on the evidence of Mr Coffey (although it was not clear, it appears that this submission was also made with regard to the question posed by s 25(2)(b)(iii) and not merely with respect to the discretion in s 25(1));
(ii)his “misleading” statements in his visa application and also his citizenship application were made “for the best possible reason” being, in the first occasion, to reach a safe country with his family and, on the further occasion, believing that “it was too late to set the record straight and that if he did so, his family might suffer as a result”, relying on Mr Coffey’s opinion that “the dishonesty displayed in his visa and citizenship applications ... is likely to be situation specific and not a symptom of his personality functioning more broadly”;
(iii)he was youthful at the time of his conviction and there was no evidence of subsequent criminal activity;
(iv)his involvement in his family and community;
(v)his and his family’s fear of his refoulement to Iraq.
GENERAL PRINCIPLES
It is a prerequisite to the exercise of the Minister’s discretion under s 25(1) of the Act to cancel an approval given to a person becoming an Australian citizen (under s 24) that, relevantly to this case, the Minister is satisfied that, at the time the Minster proposes to cancel the approval, the person is “not of good character”. Accordingly, the Minister, and therefore the Tribunal upon review, must reach the requisite state of satisfaction for the purposes of s 25(2)(b)(iii) before then considering the exercise of the discretion under s 25(1).
In considering the exercise of that discretion, the following observation of Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8] is apt:
“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.”
While the terms of s 25(1) bestow a discretion on the Minister, and therefore the Tribunal upon review, the terms of s 25(2)(b)(iii) do not. The “question whether a person is or is not of ‘good character’ is primarily an issue of fact” (Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 424 per Davies J). Section 25(2)(b)(iii) requires that the Minister and, on review, the Tribunal be “satisfied” that, at the time of proposing to cancel the approval, “the person is ... not of good character”. The decision-maker is obliged to consider and decide whether they are properly satisfied of that factual matter; the possibility of alternative findings being made does not make that decision a discretionary one (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [127]-[128] per Gummow J). However, satisfaction of that the criterion in s 25(2)(b)(iii) will bear upon the issue of whether the discretion to cancel an approval in s 25(1) is enlivened.
The expression “good character” in s 25(2)(b)(iii) is not defined in the Act and therefore should be taken to bear its ordinary meaning, “namely, a reference to the enduring moral qualities of a person” (Irving at 431-432 per Lee J, approved by the Full Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197; cf. Irving at 425 per Davies J)
As Deputy President McDonald observed in Prasad and Minister of Immigration and Ethnic Affairs [1994] AATA 326 at [7]:
“A decision about whether a person is of good character requires a 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.”
The making of false and deceptive statements by an applicant for citizenship to government agencies would tend to suggest that that applicant is not of good character, particularly where the falsehood is repeated and perpetuated over a significant period of time (see Al Temimi v Minister for Immigration and Border Protection [2014] AATA 97 at [38]; Tacalan v Minister for Immigration and Border Protection [2014] AATA 767 at [16]); Amosa and Minister for Immigration and Border Protection [2015] AATA 55 at [58]; Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [132]).
As Deputy President McMahon observed in Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35]:
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercise in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld”.
I consider those remarks to be germane to applications for citizenship and to the construction and application of s 25(2)(b)(iii) of the Act.
CONSIDERATION
I note first that, to the extent that Mr Bashi’s arguments focussed on the erroneous statement in the reasons for the decision under review that he had been convicted of armed robbery, that argument is misconceived, given that the Tribunal is reviewing the decision in question, not the reasons for that decision, and “the Tribunal’s task is ‘to do over again’ what the original decision-maker did” (Shi at [100]).
As I have indicated, the gravamen of Mr Bashi’s case was that his conduct in concealing the fact of his criminal record in Lebanon from the Department at various stages, from the time of his visa application onwards, ought to be characterised as a single instance of deception which occurred when he made his visa application and which was subsequently, to employ the words of Mr Coffey, merely “the perpetuation of the lie that he began in Syria”, such conduct being explicable in terms of the “situational” pressure Mr Bashi faced to ensure his safety and that of his family, and therefore not indicative of a lack of good character.
I do not accept that contention – it conflates Mr Bashi’s circumstances when he made his visa application with those when he made his citizenship application and is founded on premises which do not withstand scrutiny when one considers the evidence carefully. It also conflates Mr Bashi’s instances of failure to disclose his criminal record with his later statements which were deliberately designed to deceive. Furthermore, it introduces an unwarranted classification test with respect to instances of deception and distracts attention from the true issue, being Mr Bashi’s conduct, considered holistically.
Moreover, to the extent that Mr Bashi sought to derogate from the gravity of his untruthful statements by describing them as “misleading”, I reject that submission – in each instance, his statements to the effect that, or designed to show that, he did not have a criminal record were false and, on later occasions deceptive, not merely misleading.
I accept that, as submitted by Mr Bashi, his conduct in failing to disclose his criminal record in Lebanon in the context of his visa application was motivated by his and his family’s desire to achieve resettlement in a safer country. Furthermore, I have not given much weight to his failure to disclose his criminal conviction in his incoming passenger card because I do accept Mr Bashi’s characterisation of that conduct, which occurred in the context of his passage to Australia under his visa, as being explicable in similar terms. I note that I have given little weight to the document relied upon by the respondent as being Mr Bashi’s passenger card given that it is unsigned; in any event, what is more probative is his admission that he also failed to disclose his criminal conviction in the incoming passenger card he did complete.
However, what is of greater concern is Mr Bashi’s conduct following his arrival with his family in Australia in making his citizenship application. As I have indicated, it was, perhaps not surprisingly, in that context that his evidence became vague, often inconsistent and, at times, implausible. More to the point, I do not accept either his evidence or his submission that he falsely stated in his citizenship application form that he had not been convicted of any offences (leaving aside the question about removal or deportation) out of fear for himself and his family. It is important to remember that Mr Bashi was not compelled to apply for citizenship when he did so. It is also important to note, despite his submission that he was relying on the advice he had been given in Syria, that that advice, on his evidence, pertained as one would expect to his family’s visa applications, not to citizenship applications – it was designed to achieve resettlement and I do not accept Mr Bashi’s evidence that he felt compelled to rely on it in making his citizenship application.
The real question is why Mr Bashi proceeded to apply for citizenship, given that he knew of his criminal conviction and that he had obtained a visa while concealing it. Mr Bashi had a choice at that point as between various options. The choice he made – to apply for citizenship while failing to disclose his criminal record as required, and then endeavouring to deceive the Department about it both before and after being confronted with its existence - leads to the conclusion that he is not of good character. His conduct after his arrival in Australia, at the point when he elected to apply for citizenship, is quite distinguishable from his conduct before his arrival in Australia, and to the extent that there might be mitigating factors in the context of his visa application, I do not accept that they should somehow be given wider import by treating all his conduct including that pertaining to his citizenship application as a single continuous act of deception, as he sought to have the Tribunal do.
The evidence establishes that Mr Bashi knew, at the time that he applied for citizenship, that he and his family had the right, as permanent visa holders, to stay in Australia indefinitely. In his written submissions in reply, Mr Bashi seized on his evidence that he understood that he would be deported if he changed his “story”, as indicating that he believed that his situation was vulnerable. However, as I have indicated above, that evidence was based merely on what Mr Bashi said his wife’s uncle had told her about what would happen if he disclosed his criminal conviction in his citizenship application. It begs the question of why he chose to apply for citizenship, knowing that he was entitled to stay in Australia indefinitely.
As I have said, Mr Bashi had choices available to him. If he wished to apply for citizenship, he was required to tell the truth in his dealings with the Department. If he was concerned about jeopardising his position, he could have sought proper advice when considering applying for citizenship, given his failure to disclose the truth in his visa application. He could have delayed applying for citizenship until he was better able to demonstrate qualities countervailing to his past deceptions and then disclosed his conviction, as he was required to do, in that context. He could have elected not to apply for citizenship, to ensure that he would not jeopardise any citizenship applications made by his family. Instead, he applied for citizenship and repeated and indeed elaborated upon his past deceptions.
I do not accept that that conduct was motivated by fear or concern for himself or his family. Nor do I accept that it was based upon advice he had received in Syria prior to making his visa application. Rather, it was based upon his desire to obtain the privilege of citizenship by deception, which then, at the point when he filled out his declaration of service form, involved not merely a failure to disclose his criminal conviction as it had in the past, but also involved deliberate and increasingly elaborate falsehoods.
I am also troubled by Mr Bashi’s response to the Department’s letter confronting him with information about his criminal convictions and his evasive evidence about that response given before the Tribunal. Furthermore, I am troubled by the fact that Mr Bashi, instead of seeking proper advice upon receipt of that letter, instead responded in an untruthful and deceptive manner, even when confronted by information about his criminal record. I am also troubled by the fact that it was not until he commenced this proceeding that he admitted that his past statements relating to his criminal record had been false.
I give little weight to Mr Coffey’s evidence for various reasons – first, as he properly acknowledged, his expertise does not bear upon the question of good character. Furthermore, his examination of Mr Bashi was limited and quite recent. I note that, to the extent that he concluded that Mr Bashi does not suffer from any mental disorder, that tends to support the inference that Mr Bashi’s conduct has been deliberate. To the extent that Mr Coffey sought to characterise Mr Bashi’s conduct as all constituting part of “the same lie”, it does not sit well with the evidence concerning Mr Bashi’s particular circumstances and is overly based, in my view, on an extrapolation from Mr Coffey’s considerable experience in dealing with asylum seekers. But, as I have said, the greater concern in this case is not Mr Bashi’s conduct in the context of his visa application but rather his later conduct in the context of his citizenship application.
Mr Bashi’s repeated false statements, particularly those made in the context of his citizenship application, lead to the inference that Mr Bashi may well be dishonest in his dealings with the government in the future in order to achieve his objectives. His conduct to date fails to exhibit various characteristics of good character enumerated in the Policy to which I have referred. I do not accept the submission that he poses “no risk or threat whatsoever to the Australian community”, as a person who engages in repeated falsehoods in dealing with government agencies cannot properly make such a claim.
As Mr Bashi accepted, the Tribunal cannot look behind his criminal conviction and retry the matter, despite the fact that he maintains his innocence to this day. That conviction, although it occurred some time ago, does not weigh in Mr Bashi’s favour. However, as I have indicated, it is his recent conduct in Australia that is of greater concern.
I have taken into account the character evidence given on Mr Bashi’s behalf, although I note that the oral evidence of Mr Lopez revealed that his evidence did not contemplate Mr Bashi’s conviction as having any basis in fact. However, while that evidence establishes that Mr Bashi is well-engaged with his immediate community and family, it does not outweigh the significance of the concerning conduct to which I have referred.
With regard to Mr Bashi’s alternative submission that the discretion to cancel his approval ought under s 25(1) ought not be exercised in any event, I consider that it should be exercised, given Mr Bashi’s conduct in his dealings with the Department and the nature and extent of his false statements (see Lachmaiya at [35]). There is nothing in the matters relied upon by Mr Bashi which would lead me to reach a different conclusion. As will be apparent from my reasons concerning the issue of his “good character”, the first two matters upon which he relies are based on false premises in any event.
While it is admirable that Mr Bashi spends time looking after his mother and is engaged in his immediate community and family, it is important for him to understand that he needs to exhibit other characteristics, particularly those set out above from the Policy, in order to demonstrate that he is of good character and therefore deserving of the privilege of citizenship.
It also important for Mr Bashi to understand that, although at the present time he does not satisfy the eligibility criteria for Australian citizenship, it is always open to him to make another application in the future. In the meantime, he should focus on conducting himself and engaging in his wider community in such a way as will enable him to demonstrate that he is of good character and therefore deserving of citizenship if he chooses to make a fresh application at a suitable time.
CONCLUSION
For the above reasons, the decision under review will be affirmed.
I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins [sgd].....................................................
Associate
Dated 30 June 2016
Dates of hearing 1 & 2 September 2015 Date final submissions received 30 October 2015 Counsel for Applicant
Solicitor for Applicant
Representative for Respondent
Ms J E Taylor
Mr M Amad, Amad & Amad Lawyers
Mr M Bock (at hearing)
Ms C Bush (closing written submissions)Solicitor for Respondent Ms A Graham, Clayton Utz
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