BWGZ and Minister for Home Affairs (Citizenship)
[2019] AATA 1645
•3 July 2019
BWGZ and Minister for Home Affairs (Citizenship) [2019] AATA 1645 (3 July 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5952
Re:BWGZ
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:3 July 2019
Place:Sydney
(a)The decision under review, being a decision to cancel the approval of the Applicant’s Australian citizenship is set aside; and
(b)the matter is remitted to the decision-maker for reconsideration with a direction pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 that the Applicant is a person of good character for the purposes of section 25(2)(b)(iii) of the Citizenship Act 2007 and a recommendation that arrangements are made for the Applicant to make the Pledge of Commitment within a reasonable period of time.
............................[sgd]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – cancellation of approval for Australian citizenship by conferral – whether the applicant is not of good character – consideration of false statements – consideration of the authenticity of documents –– decision under review set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Regulations 2007 (Cth)
Australian Citizenship Regulations 2016 (Cth)
Migration Act 1958 (Cth)
CASES
Bashi and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 453
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Dandan v Minister for Immigration and Citizenship [2010] AATA 539
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Fox v Percy [2003] HCA 22
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Mohammed v Minister for Immigration and Border Protection [2018] AATA
Nguyen v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082
Park and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2299
Re Drake and Minister for Immigration and Ethnic Affairs(No.2) (1979) 2 ALD 634
Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs [1993] 30 ALD 292
Re Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255
Shi v Migration Agents Registration Authority [2008] HCA 31
Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The Palitana) (1924) 20 LI.L.Rep 140
Tang and Minister for Immigration and Border Protection [2014] AATA 917
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Policy, effective 1 June 2016
Australian Government Department of Home Affairs, Common Claims: Afghanistan (Country of Origin Information Services Section), effective from 31 December 2018
Transparency International, Corruption Perceptions Index 2018 FOR DECISION
Chris Puplick AM, Senior Member
3 July 2019
Mr BWGZ (the Applicant) seeks a review of a decision made by a delegate of the Minister (the Respondent) to cancel the approval of his grant of citizenship by conferral.
FROM AFGHANISTAN TO AUSTRALIA[1]
[1] Information in this section is derived from the Applicant’s Statement of Facts, Issues and Contentions (dated 4 March 2019) and the Applicant’s Statutory Declaration (dated 23 November 2017) at Section 37 Tribunal Documents [236]-[241].
The Applicant was born in the Ghazi province of Afghanistan in 1976, the eldest of seven children. He is an ethnic Hazara and it is accepted that Hazaras were a religious/ethnic minority which suffered persecution from the Taliban during their reign of terror in control of large parts of the country.
In 1998 the Applicant fled his country and lived in Iran until 2000 when, he claims that at the insistence of his father, he returned to Afghanistan. Upon return he met a Sayed woman (Applicant’s wife “Z”) who he married despite the objection of the majority of his family and hers. As a result of this he left his home province (the Applicant describes this as an “elopement”) and moved to Kabul and then in 2008 fled the country again, this time travelling to Quetta in Pakistan where there is a large Hazara community.
In Quetta he obtained a false passport and then, with the assistance of people smugglers, travelled through Malaysia to Indonesia and there boarded a boat and headed for Australia. His vessel was intercepted by Australian maritime authorities and he was conveyed to detention on Christmas Island in 2018.[2]
[2] Section 37 Tribunal Documents at [160].
UNDERSTANDING THE HAZARA SITUATION
The Hazara people are practitioners of a form of Shi’a Islam, with the majority belonging to what is called the “Twelver” sect, although a minority within the Hazara community follow the tenets of the Ismaili form of Shi’ism. The majority of Afghans are Sunni Muslims and within that community the Taliban constitute a violent sect of Sunni extremists.
The Soviet Union invaded and occupied Afghanistan in 1979 and until they were expelled in 1992 the country was in a state of turmoil and internal insurrection. After the Soviet withdrawal the country was essentially without any form of coherent central authority and conditions of civil war prevailed until 1996. During this period the Taliban seized effective control of the country and sought to enact an extremist form of Sunni Islam in which sects such as the Hazara were subject to intense persecution. This situation prevailed until 2001 when the United States and Allies (including Australia) intervened in the country having identified the Taliban regime as principal sponsors of international terrorism culminating in the 9/11 attacks on the United States.
Sayed is a term used to describe those members of the Islamic community who claim direct descent from the Prophet (PBUH). The Applicant claims that it is not permitted for a Hazara man to marry a Sayed woman. In addition, in this case, the Applicant claims that his wife was, at the time he met her, already a widow with a young daughter and that it had been arranged that she should marry the younger brother of her deceased husband. The Tribunal recognises that this is a common arrangement in such circumstances within the relevant community.
Although Hazaras are now not subject to the same degree of physical persecution that they were during the Taliban regime (although this persists in areas of Afghanistan under current Taliban control) they are nevertheless often subject to various forms of discrimination and disadvantage, constitutional guarantees of equality notwithstanding.[3]
[3] Australian Government Department of Home Affairs, Common Claims: Afghanistan (Country of Origin Information Services Section), effective from 31 December 2018, page 12.
FROM CHRISTMAS ISLAND TO CITIZENSHIP
Upon arrival on Christmas Island the Applicant was formally interviewed and during that interview his family name was incorrectly recorded. It is apparently uncontested by the Respondent that this error was a human error of mis-recording and that there was no attempt on the part of the Applicant to provide a false name.[4]
[4] Section 37 Tribunal Documents at [19].
However in that interview the Applicant reported that he only had two siblings (sibling one and sibling two)[5]. The issues surrounding this declaration will be discussed later.
[5] Ibid at [20].
In March 2009 the Applicant, having been assessed by the immigration authorities, was granted a subclass XA866 visa. This is a Protection visa, although described in the Respondent’s material as merely a “permanent visa”.[6]
[6] Respondent’s Statement of Facts, Issues and Contentions at [5].
The Applicant was then released from detention and settled in Auburn, NSW where he enrolled in an English language course conducted by a Registered Training Organisation (ACL) and obtained an initial certificate in Spoken and Written English in June 2009.[7]
[7] Section 37 Tribunal Documents at [247].
In December 2009, the Applicant’s mother apparently lodged an application for a subclass 202 Global Special Humanitarian visa.[8] It does not appear that anything has eventuated from this at this stage and in his oral evidence the Applicant confirmed that his mother was still residing in Afghanistan.
[8] Ibid at [22].
At some time in 2013 the Applicant was offered employment in Victoria and he moved there, residing in Dandenong. He worked there until sometime in the following year (2014) when he relocated back to Sydney.[9]
[9] Ibid at [238].
On 8 April 2013 the Applicant lodged a claim for grant of citizenship by conferral which was approved on 28 February 2015.
FROM CITIZENSHIP TO CANCELLATION
In June 2012 the attention of immigration authorities was drawn to the existence of five fraudulent blank driver’s licences found in the possession of two Afghan protection visa holders. The licenses held photographs but no other details.[10] One of these individuals had arrived on the same boat as the Applicant and this led to the photos on the otherwise blank licenses being matched, by the Department’s expert document examiners, with the photographs of all Afghan males arriving on that boat.
[10] Ibid at [159]-[165].
The matching exercise determined that one of the photographs on the licenses matched that of the Applicant.[11]
[11] Ibid at [160].
As a result of this matching exercise the Respondent undertook further checks of the documentary material which the Applicant had lodged in support of his application for citizenship, namely his Afghan driver’s licence and his Afghan identity document (taskera).
These checks persuaded the Respondent that the documents themselves were either false or had been altered and that as a result they should be regarded as fraudulent. These claims are the subject of discussion below.
On this basis the Respondent issued the Applicant with a notice on 5 September 2017 that it was considering cancellation of the Applicant’s approval of citizenship and invited the Applicant to respond,[12] which he did on 24 November 2017.[13]
[12] Ibid at [222]-[225].
[13] Ibid at [234]-[258].
After consideration of the Applicant’s response, the Respondent proceeded with the cancellation of the Applicant’s approval of citizenship on 21 September 2018.[14]
[14] Ibid at [13]-[24].
The Applicant appealed that decision to this Tribunal on 12 October 2018 and the matter was heard on 18 June 2019.
A MATTER OF SIGNIFICANCE
Although the Applicant’s application for grant of citizenship by conferral was approved on 28 February 2015 he is in fact not an Australian citizen. This is because he has failed, since the date of approval, to make the Pledge of Commitment which is required under the Australian Citizenship Act 2007 (Cth) (the Act) and its associated Australian Citizenship Regulations 2007 (Cth) (the Regulations).
THE LEGISLATIVE FRAMEWORK
The Act contains several sections relevant to the Tribunal's considerations in this matter.
Section 20 establishes requirements for becoming a citizen by conferral which require Ministerial approval and the making of the pledge of commitment.
A person becomes an Australian citizen under this Subdivision if:
(a) the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and
(b) if the person is required to make a pledge of commitment to become an Australian citizen--the person makes that pledge.
Section 21 lists a series of qualifications which applicants must meet and, in particular requires that they be a person of “good character” at the time of the Minister making his/her decision on their application.
Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister's decision on the application.
Section 24 mandates that the Minister must make a decision, either to grant or refuse an application once one has been made.
Minister's decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Section 25 provides grounds for the Minister to cancel any approval once granted.
Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a) the person has not become an Australian citizen under section 28; and
(b) either of the following 2 situations apply.
Eligibility criteria not met
(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.
Failure to make pledge of commitment
(3) The second situation applies if:
(a) the person has failed to make a pledge of commitment within 12 months after the day on which the person received notice of the approval; and
(b) the person's reason for the failure is not one that is prescribed by the regulations for the purposes of this subsection.
………..
Effect of cancellation
(5) If the Minister cancels an approval given to a person, the approval is taken never to have been given.
Section 28 makes it clear that the entry into citizenship, once approval has been given is dependent upon the applicant making a pledge of commitment.
Day citizenship begins etc.
Persons required to make pledge of commitment
(1) A person required to make a pledge of commitment becomes an Australian citizen under this Subdivision on the day on which the person makes the pledge.
The Australian Citizenship Regulations 2007[15] provide that there are certain circumstances in which the pledge of commitment may be waived or dispensed with.
[15] These Regulations sunsetted in October 2017 and were replaced by the Australian Citizenship Regulations 2016. The same provisions re failing to make the Pledge of Commitment are repeated in section 9 of those Regulations.
7 Prescribed reasons for failing to make pledge of commitment
(3) Subject to subregulation (5), a person has a prescribed reason for failing to make a pledge of commitment if:
(a) the person could not make a pledge, either in Australia or at an Australian mission overseas, because during that period, the person was overseas:
(i) for medical treatment that was not available in Australia; or
(ii) for a purpose unrelated to medical treatment, and was unexpectedly hospitalised; or
(iii) to care for a person who was critically ill; or
(iv) for a funeral and other associated arrangements; and
(b) either:
(i) the person still cannot make a pledge for the reason mentioned in paragraph (a); or
(ii) the person is now able to make a pledge, but the person has not yet had a reasonable period in which to do so.
There are further provisions for waiver of the requirement provided in sub regulations 7(2) and 7(4) which deal with Ministerial determinations or administrative errors, which are not relevant in these considerations.
As of the date of the Tribunal’s determination the new version of these Regulations (2016) are the operational instruments.
Section 50 of the Act addresses the question of making false statements or representations in support of various citizenship proceedings.
False statements or representations
(1) A person commits an offence if:
(a) the person makes, or causes or permits to be made, a representation or statement; and
(b) the person does so knowing that the representation or statement is false or misleading in a material particular; and
(c) the person does so for a purpose of or in relation to this Act.
Penalty: Imprisonment for 12 months.
(2) A person commits an offence if:
(a) the person conceals, or causes or permits to be concealed, a material circumstance; and
(b) the person does so for a purpose of or in relation to this Act.
Penalty: Imprisonment for 12 months.
The matter of false documentation is also dealt with under the Migration Act 1958 (Cth) which, in section 234 provides:
False documents and false or misleading information etc. relating to non-citizens
(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
(2) A person shall not transfer or part with possession of a document:
(a) with intent that the document be used to help a person, being a person not entitled to use it, to gain entry, or to remain in, Australia or to be immigration cleared; or
(b) where the person has reason to suspect that the document may be so used.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
RATIONALE FOR THE CANCELLATION DECISION
The Respondent contends that:[16]
[16] Respondent’s Statement of Facts, Issues and Contentions at [Part V].
1.In making his application for citizenship the Applicant supplied false information/documentation to the Australian government, namely
(i)His Taskera (Afghan identity document) and
(ii)His Afghan driver’s licence.
2.The Applicant has made false statements, when applying for his Protection Visa, in relation to
(iii)His siblings.
(c)The circumstances of his father’s alleged death.
(d)The limited weight to be accorded to any of the character references supplied.
The concerns about the Applicant’s statements regarding his father were of concern to the Delegate in reaching their decision[17] but those concerns are not repeated in the Respondent’s Statement of Facts, Issues and Contentions as presented to the Tribunal, nor were they advanced in submissions at the Tribunal hearing.
[17] Section 37 Tribunal Documents at [19]-[20].
Derived from these concerns, the Respondent thus comes to the conclusion that the Applicant was not of “good character” at the time the Minister was required to make his decision and that this precludes the Minister from agreeing to the application.
3.Regardless of the determinations which may be made in relation to and arising from these documentary issues, the decision to approve the Applicant’s grant of citizenship should be cancelled because of his failure to make the Pledge of Commitment within the time period prescribed by the Act.
THE APPLICANT’S RESPONSES
The Applicant answers the Respondent’s challenges in the following fashion:
1.He accepts that his Taskera was altered, but only by the addition of a photograph and that there was no dishonest intent in supplying that altered document in support of his application;
2.He denies that his Afghan driver’s licence was counterfeit, and in the event that it turns out to be, he denies any knowledge of its inauthenticity;
3.His failure to list all of his siblings arises from the fact that those of his siblings who rejected him because of his marriage, which they disapproved, were effectively “dead” to him.[18] None of them regarded him as a continuing member of their family and he did not regard them as any longer constituting family. He listed only those siblings who continued to support him and who has not rejected his marital arrangements;
4.He gave differing answers as to the status of his father, each of which was, to the best of his knowledge, true at the time he gave them and the variation results from the chaotic situation in Afghanistan, especially in relation to the position of Hazara community members. This lack of knowledge was also affected by his estrangement from his father over his marriage.
[18] Ibid at [240].
The Applicant, to that extent, accepts the facts as presented by the Respondent, but rejects any suggestion of there being attempts on his part to deliberately present false documents or deliberately mislead the Australian authorities.[19]
[19] Applicant’s Statement of Facts, Issues and Contentions at [4].
TRIBUNAL CONSIDERATIONS
It is of course, the responsibility of the Tribunal to make its decision on the facts that are before it at the time of its hearing. Material available to it which might not have been available to the original decision-maker must be considered, together with the oral evidence presented and tested in the hearing.[20] The Tribunal must also decide the issue of the standing of the Applicant, whether or not he is “not of good character” at the time of its own decision making.[21]
[9] On review, the AAT places itself in the shoes of the decision-maker, As such, on review, the reference to the “time of the Minister’s decision” in s 21(2)(h) should be construed as a reference to the time the decision-maker – the Tribunal – makes its decision.”
[10] it is therefore necessary to decide whether [the Applicant] is of good character at the time my decision is made, and not as of October 2009 – the date of the original decision by the Minister.”
[20] Re Drake and Minister for Immigration and Ethnic Affairs(No.2) (1979) 2 ALD 634; Shi v Migration Agents Registration Authority [2008] HCA 31.
[21] Dandan v Minister for Immigration and Citizenship [2010] AATA 539.
The Tribunal will consider each of the matters raised by the Respondent as outlined above.
The Taskera
The Tribunal had the advantage of physically examining the taskera in question at the hearing without having to rely exclusively upon the photocopies which were provided in the section 37 Tribunal Documents.
A taskera is a form of identity certificate which may be issued at various times to Afghan citizens. In some instances it is issued at a very early stage of their life, on other occasions it may not be issued until much later.
In the case of the Applicant, he makes the following claims about his taskera:
(a)It was issued to him when he was only about one year of age as a result of his father seeking to have it issued
(b)It does not list his “surname” as many Afghan families do not use a surname but rely upon identification via the father – in the formula of “AB son of AC”;
(c)When issued the taskera did not contain a photograph;
(d)Some years after its issue the Applicant took it to the relevant authorities and had a photograph added;
(e)Because the documents itself is a small, flimsy soft paper document the Applicant arranged for it to be bound into a sturdier outer cover consisting of a cardboard stiffener and a leather wallet, all affixed with two side- staples;
(f)No other alterations were made to the document.
In each instance, the Applicant’s claims were verified by physical inspection of the document which was conducted in front of the representatives of both parties.
The translation of the taskera provided by the Respondent shows that it was issued in May 1977 which confirms the Applicant’s claim that it was obtained on his behalf when he was about one year of age.
The taskera does not contain a surname of the holder but confirms his first name and his father’s name.
It is clear from the official stamps in the taskera that when it was issued, the marked space (a designated passport-photo size box) did not contain a photograph but that a photograph was added in the space provided and affixed/affirmed by the stamping of that photograph.
It is not clear when the external covers were added to the taskera and although they alter it physically, to the extent that they are stapled to it, they do not alter it materially any more than a protective cover for a mobile phone alters the integrity of the phone.
To the extent that it appears that some alteration has been made in the handwritten entries in the taskera, they bear more of a character of writing over faded entries than new ones and in any event, the Respondent advances no case before the Tribunal to claim that any physical alterations of the taskera have materially compromised it or rendered it invalid as an identity document.
Indeed, the Tribunal takes note of the fact that while the Afghan drivers licence was seized and retained by the Department,[22] suspected as being counterfeit, the taskera which was also with the Department for examination at the same time was returned to the Applicant and not impounded.[23]
[22] Under sections 45A(2) and 45B(1) of the Act.
[23] Section 37 Tribunal Documents at [220]-[221].
The Tribunal is satisfied that the taskera is a valid document, that the addition of the photograph was an approved procedure and that there is nothing misleading about its being used to establish the identity of its holder.
The Drivers Licence
The provenance of this document entails the recounting of a somewhat long and complex story.
Obtaining the licence
It appears that the following sequence of events occurred:
·The Applicant was living in Kabul some time in 2007/8 where he had a shop selling food stuffs.
·He needed a car in order to undertake his work and he obtained one and drove it around the city. He was told/became aware that he needed a formal drivers’ licence.
·Because his taskera was issued in Ghazi he was not able to obtain his licence in Kabul but need to return to Ghazi for this purpose.
·He had a (named) friend in Kabul who put him in touch with a person (hereafter “the contact”) in Ghazi who, the Applicant was told both worked for the licensing authority and would be able to facilitate obtaining a licence there.
·The Applicant telephoned this contact and arranged to meet him outside the licensing authority premises where he paid him a sum of money for his assistance.
·The Applicant and the contact entered the authority building where there was a substantial queue and obtained information about what was necessary for the granting of a licence.
·The Applicant learned that he needed to undertake a blood test (he said “to establish that he was healthy”) and provide a copy of his taskera.
·The Applicant and his contact then went to the local hospital where the blood test was conducted and the Applicant provided the contact with both a photocopy of his taskera and four passport-size photographs.
·It appears that no other document was sighted or signed by the Applicant, nor did he undertake any form of driving test, although this was required.
·After the hospital the Applicant returned to Kabul and his contact told him that the licence would be issued within 10 to 12 days.
·This process took something like half a day.
·At some later stage the contact was in touch with the Applicant to inform him that the licence had been issued and the Applicant returned to Ghazi and collected it from the contact.
Such a process is in no way unusual or extraordinary. Afghanistan scores 16 out of 100 and rates number 172 out of 180 on the Transparency International Index of perceived corruption.[24] Nor is it implausible when the Applicant states that he paid more than the “usual” for such a service because of his Hazara ethnicity.[25]
[24]Transparency International, Corruption Perceptions Index 2018 Section 37 Tribunal Documents at [238].
The status of the licence
The Document Examiner in her report reached two conclusions. The first of these was that the format of the licence in question was different from that which appeared on the website of the Afghan Ministry of Interior Affairs. However she also stated that: “it is not known if there are other versions of the licence that are not on the website.”[26] It is also possible, of course, that the format of licenses in Afghanistan has changed in the last ten years – just as the form of the NSW driver’s licence has changed with the introduction of new features over time.
[26] Ibid at [172].
Her second conclusion was:
“It is my opinion that this linkage of the questioned licence with other Afghanistan driver’s licenses that have been determined to be counterfeit; provides evidence that the questioned driving licence ….. is counterfeit.”[27]
[27] Ibid at [173].
Counsel for the Applicant challenged this finding on the basis that “linkage” does not constitute “evidence” and that the Examiner was not available for cross-examination, despite this finding being challenged in the Applicant’s written submission of 4 March 2019.[28] Counsel also attacked the use or misuse of this conclusion in the report of the Delegate.[29] The licence was seized by the Department on the basis of its being satisfied that it was a bogus document.[30]
[28] Applicant’s Statement of Facts, Issues and Contentions at [3(a)].
[29] Section 37 Tribunal Documents at [18].
[30] Ibid at [220-221].
The Tribunal does not find itself in a positon of being able to state one way or the other as to whether the document in question is counterfeit. On the one hand there is the direct conclusion of the expert Document Examiner and on the other there are doubts about the extent to which the document can be stated categorically to be counterfeit simply by comparison with similar documents.
In any event, there are two relevant matters arising from any such consideration:
1.There is no reason to doubt that the Applicant believed that the licence was a genuine license and that its use for any subsequent purpose(s) was fully justified; and
2.The Respondent has not claimed that any of the information about the Applicant which is contained in the licence is in any way false or misleading, for example details of the Applicant’s true name, date of birth, residency or citizenship of Afghanistan.
On the basis of these considerations the Tribunal has reached the conclusion that, regardless of the precise status of the document, it was not presented by the Applicant with any intention to mislead or deceive government authorities,[31] nor was there any willful misuse of it by him. It does not reflect adversely upon any assessment of whether or not the Applicant is a person of “good character”.
[31] This includes the Driver’s Licence authorities in Victoria and New South Wales where this document was used in obtaining local driver’s licenses.
The Applicant’s siblings
The Applicant is the eldest of seven children and has five brothers and one sister. As a result of his marriage there was an estrangement in the family which resulted in the Applicant leaving his home in Ghazi and as he termed it “elop(ing)” to Kabul. The nature of the family’s disapproval was that, in his testimony:
Z’s cousins complained to the police about our elopement and conspired (sic) that I murdered the first husband of Z. People and police in general despise if a Hazara marries a Sayeed girl. Once I was detained for the murder allegation, but I managed to escape the police custody.
The cousins of Z were against the marriage and they threatened that they will kill us if they found us. Similarly, my brothers, except the youngest…were all against my decision. My family cut all ties with me. My bothers told me that I am dead for them and they will never again see my face.”[32]
“As stated above my brothers broke all ties with me after I ran away with Z who is a Sayed Shia. It is not permitted in our culture and in Afghanistan that a Hazara person marry a Sayed. Both families were against our marriage and my brothers threatened to kill me if I stayed with Z. They were afraid of honour killing for themselves as well. They did not want animosity with Z’s cousin (sic) who were also against our marriage.
When I came to Australia I had no ties with my brothers. For six years from 2002 till 2008 I had no connection whatsoever with my brothers and parent. It was because they did not support me when I needed their support instead they threatened to kill me. My brothers hated me for my action and I did not provide their details of my immigration application because I no longer had ties with them.
My youngest brother and sister were always good to me, therefore I provided their details in my application because I love them.
I did not withhold this information to deceive the immigration officials because the number of my siblings had no bearing on my clams. I was angry. I did not want to see them in my life because they told me I was dead for them.[33]
[32] Section 37 Tribunal Documents at [237].
[33] Ibid at [240]-[241].
The Tribunal recognises that in tribal societies, especially those also riven by religious feuds and disputes, situations such as that described by the Applicant can arise. It also recognises the dangers of “honour” killings and the real threat that they constitute to innocent people who offend certain traditional norms or family expectations. To that extent the logic of the Applicant’s position is understandable.
The Tribunal accepts that while the information provided was inadequate and inaccurate, and to that extent false and misleading, it was provided in circumstances and for reasons which were untainted by any intention to mislead or be dishonest.
As such, the Tribunal does not accept that this behaviour justifies any conclusion that, in this instance, the Applicant was acting in such a way as to define him as being a person who is not of “good character.”
The Tribunal sought information from the Applicant about his relationship with “M”, upon whose evidence the Delegate relied, in part, on making their determination. “M” is recorded as living with the Applicant at addresses both in Victoria and New South Wales. The Applicant confirmed to the Tribunal that “M” is his brother; that he arrived in Australia by boat in 2013 and is the holder of a Bridging Visa. He agreed that they shared accommodation as outlined and said that upon his brother’s arrival there was a reconciliation, his brother apologised for his previous behaviour and the Applicant was happy to re-establish ties with him.
The Applicant’s father
As the Tribunal has noted this matter was considered by the Delegate in relation to inconsistencies in information about the Applicant’s father (specifically whether he was still alive, and if so where residing) drawn from the Applicant’s statements on the one hand and information provided in a visa application by his mother.
The material in the mother’s application was not provided to the Tribunal so it cannot make any independent assessment of its validity or worth. Similarly while the matter was considered by the Delegate it was not pressed in terms of any evidence put to the Tribunal outside the Delegate’s report, nor was the Applicant questioned on the issue. In his written statements he makes clear that he gave such information as he believed to be true at the time, such information being difficult to ascertain given his estrangement from his father and the uncertainty of events, especially for Hazara people in Afghanistan.[34]
[34] Ibid at [240].
The Tribunal accepts what the Applicant has had to say on this matter and specifically rejects the finding of the Delegate that this was the provision “of false information to the Department in order to achieve a visa outcome.”
GOOD CHARACTER
The Tribunal needs to take into account not just the law on this matter but also the clear statement of the Policy which underpins the administration of that law. One of the requirements for citizenship by conferral (the origin of the Applicant’s citizenship) is that a person should be a person of good character.[35]
[35]Australian Citizenship Act 2007 section 21(2)(h).
In determining what constitutes “good character”, the Tribunal is bound by the decisions of the Courts and assisted by the statement of government policy which is contained in the Australian Citizenship Policy (the Policy) of June 2016.
The Act itself contains no definition of what constitutes “good character”, nor indeed does the Policy.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs, the Full Federal Court stated:
“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. [36]
….
[36] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at [85].
In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have been demonstrated over a very long period of time;
·distinguishing right from wrong; and
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
The courts have also elaborated by holding that it is further accepted that there should also be some evidence that what a person says, does or what they are heard to say or seen to do should be taken as evidence of their acceptance of the values and norms to which they are expected to adhere and be loyal.[37]
[37] Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
The Federal Court has distilled the meaning of “good character” in the following terms:
The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 348 per Mason CJ and 380-382 per Toohey and Gaudron JJ. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.[38]
[38] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [51] per O’Bryan J.
The Policy itself then goes on from this to outline what the characteristics of good character might amount to. These are set out at some length as expecting that applicants would (inter alia):
·respect and abide by the law in Australia and other countries
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·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[39]
[39] Citizenship Policy page 147.
The Policy elaborates by attaching to the phrase “enduring moral qualities” the further qualifications, namely:
·“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.” [40]
[40] Ibid page 145.
Further, it makes clear:[41]
an applicant of good character would:
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
·providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
·involvement in bogus marriage
·concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship.”
[41] Ibid page 147.
Where an Applicant has any sort of criminal conviction, including convictions in his/her country of origin, these must be disclosed and will be taken into account in assessment of good character.[42] It is important to note that the Applicant does not have any criminal record and there is nothing against him in this regard.
[42] Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14].
In relation to the provision of false or misleading information, this Tribunal has set out clearly its view about the provision of false or misleading information to the Department in migration/citizenship matters:
Many of the provisions of the section [i.e. in the Migration Act] are reflected in the regulations, particularly in schedule 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first sub-section to the giving of false information, the use of bogus documents and the making of false or misleading statements. These are overall requirements important in the administration of immigration procedures. 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 exercises in visa applications when dealing with the many reasons for coming to Australia.[43]
[43] Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35].
More recently, that statement has been quoted again with the Tribunal going further to add:
I believe that this principle also adheres when an eligible non-citizen is applying for Australian citizenship. There is a reasonable expectation of the Australian people that a non-citizen will obey Australia’s laws and tell the truth to immigration officials.[44]
[44] Mohammed v Minister for Immigration and Border Protection [2018] AATA 687 at [39].
I have made it clear in previous decisions that there is “no excuse for misleading the Australian government or its agencies”[45] but clearly there is a difference between the government being misled by some inadvertent activity on the part of an applicant and being misled willfully. The impact on the government may be the same, but the latter case, willful misleading, goes clearly to the question of good character whereas inadvertence on the part of an applicant may not. The Tribunal has held in previous decisions that even where people have criminal convictions, discretion may be exercised in their favour provided that there is no overt attempt to “deceive the respondent” (i.e. the Minister) in relation to relevant facts.[46]
[45] Nguyen v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082 at [72].
[46] Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs [1993] 30 ALD 292 at [40].
The Tribunal does not believe that, in this instance, there was any misleading of the Australian authorities by the Applicant in either his visa application or his citizenship application. It finds that none of the four matters put against the Applicant has any substance in coming to conclusion about good character.
The Tribunal notes that the Applicant has submitted a number of character references[47] all attesting to his good standing in the community and some with reference to his work in the Kamarak Hazara Association. However as the Respondent points out, these are of limited value in relation to the contended issues before the Tribunal.[48]
[47] Section 37 Tribunal Documents at [242]-[245].
[48] Respondent’s Statement of Facts, Issues and Contentions at [29].
Counsel for the Applicant invited the Tribunal to give credit to the Applicant for the nature of his appearance before the Tribunal. Counsel asserted that, as a witness, the Applicant was a person of credibility, he answered questions directly and to the best of his ability, where he could not remember details he said so and he did not attempt to deny matters such as the use of an illegal passport to leave Pakistan or the way in which he obtained his Afghan driver’s licence.
The Tribunal is conscious of the warning from the courts that decision-makers should:
“limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.”[49]
[49] Fox v Percy [2003] HCA 22 at [31].
Further,
“an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”[50]
[50] Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The Palitana) (1924) 20 LI.L.Rep 140 at [152].
Nevertheless, the Tribunal was impressed with the Applicant as a witness and did find his evidence to have a high degree of credibility.
There are subtle but important differences in the legislation when it comes to the exact nature of findings about good character.
For a grant of citizenship by conferral, the Minister must be satisfied that the Applicant “is of good character at the time of the Minister’s decision on the application” (section 21(2)(h)). However in relation to cancellation decisions, the Minister “at the time the Minister proposes to cancel the approval, (must determine that) the person is …. not of good character.” (section 25(2)(b)(iii)).
In other words where an approval cancellation is being considered, “the Tribunal must be positively satisfied of a negative matter – that he is not of good character.”[51]
[51] Bashi and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 453 at [5].
The Tribunal is not so satisfied. It does not find that the Applicant is not of good character.
THE PLEDGE OF COMMITMENT
The Respondent argues that should the Minister’s decision not be sustained on the basis of a finding as to the good character, or lack thereof, on the part of the Applicant, it should nevertheless be sustained on the basis that the Applicant has failed to make the Pledge of Commitment as required under the Act.
It is not contested that the Applicant has not done so. What is contested is that he was ever able or given the opportunity to do so.
As already explained, after approval has been granted for an applicant to become an Australian citizen, they must take a pledge of commitment in order to complete the process. Without this there is no conferred citizenship.
The Applicant lodged his application for citizenship on 8 April 2013. At some stage thereafter (16 June 2014) he was written to by the department and offered the opportunity to attend a citizenship course, to be held in Dandenong over several dates in July/August 2014. It appears that the Applicant accepted this invitation.[52] There is some follow-up correspondence, undated between the parties but no evidence was presented as to whether or not the course was undertaken.[53] This part of the evidence is confusing as there is a hand-written annotation (presumably by a departmental official) on the Applicant’s for Application for Citizenship (the 1300t on-line form) which reads: “Assisted test on 16/07/13 @ 11am” followed by an obscured reference number.[54] The Tribunal presumes however that the Applicant at some stage completed the citizenship test which is required under the Act (section 21(2A)) unless an exemption is granted – there being no basis for assuming that this was the case.
[52] Section 37 Tribunal Documents at [156]-[157].
[53] Ibid at [166]-[167].
[54] Ibid at [122].
At some stage in October/November 2014 the Applicant moved back to live in Sydney. In his oral evidence he told the Tribunal that he made contact with the Department, by telephone only, on several occasions to advise them of his change of address and to make enquiries about the progress of his citizenship application. This evidence was not in any written submissions prior to the Tribunal hearing, but the Respondent received instructions during the course of the hearing day that confirmed that there had been contact from the Applicant as he asserted.
Citizenship approval was given on 28 February 2015 and presumably notified to the Applicant shortly thereafter. The Respondent did not provide the Tribunal with any copies of the relevant correspondence in the T-documents which the Tribunal found unhelpful. However upon request the Respondent produced a copy of the approval letter. That letter, from the Minister, after offering the Applicant congratulations on his citizenship being approved goes on to state:
“The final step in becoming an Australian citizen is to make a Pledge of Commitment at an Australian citizenship ceremony. You will not be an Australian citizen until you have made the Pledge.
Generally, your citizenship ceremony will be scheduled within six months from the time your application is approved, although times may vary. You will receive a letter of invitation from either your local council or my department.”[55]
[55] Filed by Respondent on 19 June 2019.
There is then, as reported at the hearing by counsel for the Respondent, evidence in the records of the Department to the effect that the Applicant was in contact with the Department in March and May 2015 when, the Applicant says, he sought further details about how to conclude the citizenship process.
As a result of this contact between the Applicant and the Department, the Respondent told the Tribunal that departmental records (dated 20 March 2015) show that it had agreed with the Applicant’s request and that Citizenship Ceremony responsibilities would be under the auspices of the Auburn City Council.
There is then no evidence before the Tribunal that the Applicant was ever sent a letter formally inviting him to attend a citizenship ceremony. Even if the letter in question was sent by the Auburn City Council there would be a record of it in the Department’s files as it would have had to make arrangements for departmental officers to be present and for the Citizenship Certificates to be issued.
The Tribunal asked the Respondent, during the hearing to provide copies of any correspondence which would demonstrate that the Applicant had been invited to a citizenship ceremony. The Respondent was given 48 hours after the conclusion of the hearing to do so. It failed to produce any such evidence.
The Tribunal has dealt with a number of cases where difficulties have arisen in terms of communications between the Department and approved citizenship conferral applicants regarding their ability to make the pledge of commitment within the required time.
In Park[56] this Tribunal dealt with a matter where successive notifications of citizenship ceremonies were simply sent to the wrong address and, as a result, the applicant failed to make the pledge within the 12 month period and her approval was cancelled. In this instance the Tribunal granted an extension of time for an appeal against this decision to be lodged.
[56] Park and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 2299.
In Tang a cancellation decision as set aside on the basis that actions by the Respondent had deprived the applicant of his ability to make the pledge within 12 months and that it
“would be contrary to the principles of fairness for the Respondent to now take action to cancel approval of citizenship for failure to take the pledge without allowing Mr Tang a reasonable opportunity to take the pledge.”[57]
[57] Tang and Minister for Immigration and Border Protection [2014] AATA 917 at [26].
In this instance the Tribunal is satisfied that:
1.The Applicant knew from the letter of 28 February 2015 that he would be required to attend a citizenship ceremony and make the Pledge of Commitment;
2.When the Applicant failed to receive any further advice from the Department about a citizenship ceremony he took proactive steps to contact the Department to follow up its progress, update his residential details and request that the citizenship ceremony be conducted in Auburn;
3.The Department’s records reflect this activity on the part of the Applicant;
4.There is no evidence that the Applicant was ever sent an invitation to attend a citizenship ceremony.
Obviously, it follows that in these circumstances the Applicant has not failed to make the Pledge of Commitment in the way characterised by the Respondent. The Applicant wanted to do so and was proactive in seeking to do so. He cannot be held accountable for, nor disadvantaged by, what appears to be an oversight on the part of either the Department or the Auburn City Council authorities.
THE DISCRETIONARY NATURE OF CANCELLATION DECISIONS
It is clear in section 25 of the Act that the Minister’s power to cancel an approval is discretionary. This is indicated by the use of the word “may” in section 25(1) – the operative section:
“The Minister may, by writing, cancel an approval….”
The discretionary nature of this power was discussed by the Tribunal in Taradel where it said:
The respondent submitted that telling lies to the immigration department in connection with a visa application was always a serious matter that might override other considerations. But one must examine each case on its facts. It would be a mistake to elevate concerns over migration fraud to the status of an inflexible rule of law stating that anyone ever convicted of a migration-related fraud must necessarily be stripped of his or her citizenship. If parliament had intended to do that, it would have said so in the legislation.[58]
[58] Re Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [22]
The Tribunal also indicated that findings of dishonesty in themselves were not sufficient for a decision to flow automatically, rather, that such findings needed to be balanced against other considerations.
I agree that dishonesty in dealings with the department is a very serious matter. The integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history. The department is not in a position to know what applicants know, after all. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly. But I must also look to any prejudice to the applicant and others arising from the cancellation of his citizenship.[59]
[59] Ibid at [23].
In any event, the Tribunal has not found that the Applicant acted dishonestly or sought to mislead or deceive the relevant Australian authorities.
Disadvantage to the Applicant
There is no immediate disadvantage that the cancellation of the citizenship approval visits upon the Applicant, who is free, at any time to lodge a fresh application for citizenship.[60] However he is immediately prevented from Australian Citizenship entitlements – access to certain health and welfare benefits, the right to obtain an Australian passport or to have a say in choosing his government by voting.
[60] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].
There is no reason he should be denied access to these advantages of citizenship. The Tribunal notes that the evidence establishes that he is well qualified to become a citizen – he has no adverse criminal or other record – and he clearly wants to become a citizen and has taken every step he was required to do so.
DISCUSSION
The Respondent has based his decision to cancel the Applicant’s citizenship approval on the grounds that he was a person who was not of good character, and even if he were, he had failed to complete the Pledge of Commitment.
On the basis of the evidence before it, the Tribunal is satisfied that neither ground is sustainable.
There is no reason to believe that the Applicant is a person who is not of good character if the test of this relates to the presentation of documents which the Respondent calls into question and the failure to list all of his family members on various applications as required. The evidence establishes, to the satisfaction of the Tribunal that the taskera was a valid document and the status of the driver’s licence remains open to doubt but has not been proven to be counterfeit. The reasons for the non-disclosure of the details of certain family members was not unreasonable in all the circumstances, nor was it wilfully misleading or dishonest.
As explained, the failure to make the Pledge of Commitment was through no fault of the Applicant and his eagerness to do so is attested by his actions.
In every other respect the Applicant appeared to the Tribunal to be a person who has the capacity to make a contribution to his own Hazara community and the wider Australian community and is interested in doing so. It believes he should be given that opportunity.
DECISION
The Tribunal decides:
(a)The decision under review, being a decision to cancel the approval of the Applicant’s Australian citizenship is set aside; and
(b)the matter is remitted to the decision-maker for reconsideration with a direction pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 that the Applicant is a person of good character for the purposes of section 25(2)(b)(iii) of the Citizenship Act 2007 and a recommendation that arrangements are made for the Applicant to make the Pledge of Commitment within a reasonable period of time.
I certify that the preceding 121 (one hundred and twenty -one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.............................[sgd]...........................................
Associate
Dated: 3 July 2019
Date(s) of hearing: 18 June 2019 Date final submissions received: 19 June 2019 Counsel for the Applicant: Mr N Poynder Solicitors for the Applicant: Mr S John, ASM Migration Services Pty Ltd Solicitors for the Respondent: Mr Z He, Clayton Utz
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