BZKP and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 1828

BZKP and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1828 (29 March 2018)

Division:GENERAL DIVISION

File Number:           2017/3400

Re:BZKP

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Britten-Jones

Date:29 March 2018

Date of written reasons:        18 June 2018

Place:Adelaide

For the reasons given orally at the conclusion of the hearing the Tribunal sets aside the decision under review and makes the decision in substitution to approve the applicant for citizenship.

........................................................................

Senior Member Britten-Jones

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Application for review of decision to refuse to grant application for citizenship – Whether applicant of good character – In November 2018 Delegate for the Minister for Immigration and Citizenship granted applicant a protection visa, being a permanent visa – Whether applicant met requirements of section 22(2)(h) of the Australian Citizenship Act 2007 – Assessing character for purposes of Citizenship Act as per Citizenship Policy 2016 – Decision set aside.

LEGISLATION

Australian Citizenship Act 2007, ss 21, 22

Administrative Appeals Tribunal Act 1975, s 43(2A)
Citizenship Policy 2016, Ch 11

REASONS FOR DECISION

Senior Member Britten-Jones

18 June 2018

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish him with a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by Epiq Australia Pty Ltd.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3. The said transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reason for the Tribunal’s decision.

I certify that the following  paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones

........................................................................

Administrative Assistant

Dated: 18 June 2018

Date of hearing:	29 March 2018
Solicitors for the Applicant:	Ms C Shepherd Community Legal Centre
Solicitors for the Respondent:	Ms M Scanlon Australian Government Solicitor

EXTRACT OF TRANSCRIPT PROCEEDINGS

1. SENIOR MEMBER:  The applicant seeks a review of a decision of the delegate of the Minister for Immigration and Border Protection, who refused an application for Australian citizenship.  The delegate refused to approve the application for citizenship on the basis that it was found that the applicant was not of good character, for the purposes of section 21(2)(h) of the Australian Citizenship Act 2007, which I will refer to as the Act.  The delegate subsequently refused applications for citizenship of his children, but those matters are not before me today, by agreement.

2. The applicant is a male Iraqi citizen who was born in Kuwait.  He had been a resident of the Philippines since 1990, and he gained refugee status from the UNHCR in 1991.  Whilst in the Philippines he married a Filipino national in 1994.  On 29 August 2009 the applicant arrived in Australia, at the Sydney Airport, without a passport or visa for entry into Australia, and he was subsequently detained at the Villawood Immigration Detention Centre.  In September 2009 he applied for a protection visa, and on 18 November 2010 a delegate of the Minister granted the protection visa.

3. On 20 January 2015 the applicant applied for Australian citizenship, and that was refused by a decision of the delegate of the Minister on 29 May 2007 [sic] (2017), on the basis that he did not meet the requirements of section 22(2)(h) of the Act, with respect to good character.  On 13 June 2017 the applicant sought review of the delegate’s decision in the Administrative Appeals Tribunal.

4. With respect to the relevant legislation, it is found in part 2, division 2 of subdivision B of the Act, the relevant eligibility criteria are contained in section 21 of the Act.  Section 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if he or she is of good character at the time of the Minister’s decision on the application.  Guidance with respect to assessing character for the purposes of the Act is provided in chapter 11 of the Citizenship Policy 2016.  The Policy states that good character is not defined in the Act, but refers to the enduring moral qualities of a person as an indication of whether an applicant is likely to uphold and obey the laws of Australia and other commitments made through the pledge, should they be approved for citizenship.

5. The key issue for consideration by this tribunal is whether the applicant meets that good character requirement in section 22(2)(h) of the Act.  It is said by the respondent that there is undisputed evidence before the tribunal that in 2009 the applicant intentionally engaged in dishonest and deceptive conduct to arrive in Australia, by obtaining a false Maltese passport, which enabled him to depart from the Philippines via Taiwan, and arrive in Sydney. 

6. The respondent contends that the procurement and use of a fake passport to a benefit of migration outcome is clearly a matter which runs adverse to the applicant’s character, and on its own I would agree with that.  Further, it is submitted that the applicant arriving in Australia without a valid entry visa or passport is a clear breach of Australian immigration law.  That is the submission that is made by the respondent.

7. It is not in dispute that the applicant arrived in Sydney on 29 August 2009, having travelled on a fake passport.  But what happened immediately upon his arrival was that he declared himself, he did not clear immigration, and he sought asylum at Sydney Airport.  Any deception involved in the fake passport ceased immediately upon his arrival, and it has to be said that the applicant’s behaviour from that point on, in Australia, has been impeccable.

8. The applicant gave evidence to the tribunal, at length.  I found him to present very well as a witness, and his evidence was candid and he was prepared to make concessions when appropriate, and he gave a very credible testimony.  He told his story, starting with his birth in Kuwait in 1967, from parents who were Iraqi, but who left when the government changed, because they considered it was not safe.  He is an Iraqi by descent, but he is not a citizen of Kuwait. 

9. In early 1990 the applicant left Kuwait, when he was about 21 or 22 years old, to study on a student visa in the Philippines.  He never gave a thought to going back to Iraq because of his family status as opposing the regime there.  It took a little while to adjust in the Philippines, but he completed a Bachelor of Architecture over a four-year period.  He was granted refugee status from the UNHCR in 1991, but his Iraqi passport was no longer valid after four years since his arrival in the Philippines.  He met his wife in the Philippines and he married in 1994, straight after his graduation. 

10. Since that time life was not easy in the Philippines for him.  He was able to work and conduct some trading, which he said involved simply buying and selling things, and he conducted some volunteer work with a group who advocated for peace, and in particular the avoidance of religious conflicts.  He said that he wanted to give back to the community, and he conducted himself in that way in the Philippines.  He said that the system in the Philippines during the 1990s was very corrupt, and was ruled by the military, and that he was constantly watched, as a foreigner.  He reported this to the UNHCR in Manilla, and started to think about leaving, but he had no passport and he was a refugee.  He became concerned that his family might be in danger. 

11. In mid-March 2003, one day before the US invasion of Iraq, the situation was very tense in the Philippines.  He did not feel secure, he was being followed, and on that day he walked to school to take lunch to his children, and he was surrounded by armed men who put a gun to his head, handcuffed him, and placed a sack over his head and bundled him into a van.  From that moment on he lost his freedom for over 12 months.  He suffered significantly during that 12-month period, often being deprived of sleep, and interrogated for lengthy periods of time.  He was moved to different locations, he only saw his wife once during that period.  He was not entitled to communicate, except via a weekly letter. 

12. At the time he had four children, the eldest of whom was only seven or eight years old.  They were being looked after by his wife.  He described it as a horrible time, and that he underwent physical and mental torture.  He explained that the physical torture was from other inmates, and not from the authorities.  He became sick many times, lost a lot of weight.  He was never brought to court.  He was given a charge sheet that said that he was a threat to national security.  Later, all of the charges were dropped, except one, with respect to violating migration law in the Philippines.

13. Upon his release he decided to leave forever.  He did not want to stay in the Philippines.  It was very hard for his wife.  His children still suffer the effects of him being in detention for over 12 months.  It affected his wife mentally.  The UNHCR was aware that he was abducted, and he asked for help after he was released, because he did not feel safe.  He waited until 2006, when the deportation case was dropped against him, he had some hopes of being resettled in Jakarta through the UNHCR, but that did not eventuate.

14. He described that during the period, 2004 to 2009, that he still felt that he was being continually watched and monitored, and he described how his children, in his words, do not look Asian, but look Arab, and accordingly were picked on by the locals, who would call them children of Arabs.  There is a report that was prepared by a registered psychologist, Chaque Momartin, dated 10 December 2009, whilst he was in the Villawood Detention Centre, and it described the trauma that had been reported following his imprisonment in the Philippines.  It said, and I quote:

    After being released from prison the applicant reported that he continued being harassed by the government and the intelligence service.  He was constantly monitored and watched.  He found it difficult to live in the country and have normal relationships with his friends and family.  He was constantly apprehensive about being re-arrested.  The government kept monitoring him closely, making him feel scared, frightened, and anxious.  When he discussed his fears with his wife they both decided that the best move for him was to leave the country and find safety in another country, until they could all reunite.  He then obtained a fake passport and left the country, for Australia.  In Australia he confessed to the airport authorities, apologised for having a fake passport, and requested asylum, at which point he was questioned and transferred to the Villawood Detention Centre.

15. Now, the applicant gave evidence about how he arrived in the immigration lane in Sydney Airport, and sought refuge.  He told them immediately that he had a fake passport, and he told them his story.  He was interviewed for two hours.  There is no suggestion that any of his story, at that time, was false.  And there is no suggestion, from the respondent or any of the evidence, that any of the information provided in the numerous documents that the applicant has had to fill in over the last eight or nine years was false.

16. The applicant was placed in the Villawood Detention Centre.  He even, at the Villawood Detention Centre, he exhibited attributes of good behaviour.  One story that he told about development plans for the centre, which he noticed, those development plans were provided to him, and he took them away and studied them, they included a floorplan and other architectural-type documents, and he spent some time looking at them and providing his comments, which were then provided back to the authorities and indeed later he received a letter of thanks from the authorities with respect to the comments that he had made, and his behaviour in general with respect to that incident.

17. After about 15 months he was granted a protection visa, and he took steps to have his family reunited with him, which eventually took place.  The applicant was not charged with any offence with respect to his conduct in arriving in Australia.  The applicant gave further evidence that it took time to adjust to freedom.  He decided on Adelaide as being the place for him, being a bit quieter than Melbourne and Sydney.  He studied at TAFE SA in 2012, in Aged Care, and received a Certificate III.  He found it hard, though, due to a back condition, and also ongoing mental issues.  His degree in architecture was not honoured here in Australia. 

18. He then did a TAFE interpreting course, which has yielded great dividends for him ever since.  It took about 18 months, and he finalised his studies with respect to the interpreting course in 2014, and became an accredited interpreter.  He has since worked for numerous government departments and private organisations, and appears to have built a successful business around the offering of services as an interpreter and translator.  It has also helped him to help others, in the sense that he has volunteered to help the Migrant Resource Centre, often new arrivals would need help with documents with respect to medical matters or Centrelink or for schools, and he volunteered his time, without pay, to assist those persons.  He also participated in the community and helped the elderly, for example booking appointments and the like.

19. He applied for citizenship in 2015, and there was a significant delay of almost two years before he was told that he was not successful.  As part of that process he prepared numerous statutory declarations, one dated 1 May 2017, was the subject of some cross-examination because in that document he said that he had never committed a crime of breaching immigration law.  Of course, that statement has to be seen in the context of the knowledge of the Department with respect to his application for a protection visa.  But in evidence the applicant said that he – admitted that he had done something wrong, but he felt that it was never a crime.

20. The applicant gave evidence about what it would mean to him to become an Australian citizen.  He said that it would mean a lot, and that it would fulfil a childhood dream.  He feels that as an Australian citizen he will be able to give back to the community.  He is very appreciative of the Australian government for allowing him to come to this country and be reunited with his family.  He said that Australia is his land, and he wants to be buried here, and that he will continue to give back more to the community.

21. The applicant was cross-examined by counsel for the respondent, in particular about the decision that he made to procure a false passport so as to leave from the Philippines.  He maintained his evidence that because he did not have a passport, that no country would accept him through legal means.  He also maintained that he was not able to obtain an Iraqi passport, because it was put to him in cross-examination that he had not tried that.  In response to that he explained that because of his family’s status as being members of opponents to the Iraqi regime, that there was no chance of obtaining a passport through the government authorities in Iraq.  I accept that as a satisfactory explanation.

22. The applicant was also cross-examined about a discussion that he had with his wife that she would not sponsor him to return to the Philippines in the event that he made it to Australia.  The applicant explained that the reason for the wife not wanting to sponsor him was not to obtain some sort of advantage, but was merely reflective of the fact that he had decided that he could no longer stay in the Philippines, and that it was not safe for him.  Indeed, it indicates the lengths – well, it provides a serious indication about the seriousness of the situation that he found himself in, and the fact that he felt persecuted and unsafe in the Philippines, and was prepared to take a risk of being kept apart from his family. 

23. As became apparent from his evidence, he is a very good and committed father, and family man, and I consider that to make a decision involving potentially not seeing his family again would only have been made in the most dire of circumstances.  As he said, he risked his life, but he did not want to come back to the Philippines.  Again, during cross-examination, when it was put to him that he had acted improperly and illegally in obtaining a false passport, the applicant admitted that he knew that he did something wrong, but he thought that it was not a crime. 

24. Returning to the facts around about November 2018, a delegate of the Minister for Immigration and Citizenship granted the applicant a protection visa, being a permanent visa.  The delegate relevantly found, or was satisfied (1) that the applicant is a citizen of Iraq;  (2) the applicant is not a citizen, nor a national of Kuwait;  (3) the applicant is neither a citizen or national of the Philippines;  (4) the applicant feared harm, involving serious harm, systematic and discriminatory conduct;  (5) the applicant was a credible witness;  (6) the applicant has a well-founded fear of being persecuted by a non-State agency;  (7) the applicant satisfied the Australian values statement requirement.

25. Other evidence was given in support of the applicant.  The first was from his TAFE lecturer who had, at all times, been very impressed by the applicant.  She lectured him regularly over an 18-month period, and described him as being really conscientious, and getting on well with other students, and often helping other students.  After the courses finished she maintained contact with him because he and her were both accredited interpreters, and therefore part of the same organisation.  She also explained how she teaches a code of ethics, which she said that the applicant understood well, and practised at all times.  At its core is to be a professional in all things, which means acting honestly and having respect for others, declaring a conflict of interest, issues relating to confidentiality and impartiality, and a professional solidarity.  These are all attributes that she said that the applicant had.  She was very impressed with his level of discretion, in terms of never talking about other interpreters or divulging information that he may have obtained through his period as an interpreter. 

26. In addition to the evidence from his TAFE lecturer, there were numerous written references from organisations with whom the applicant had provided interpreting services.  These were all very positive and there was not one negative comment made in any of them, so I take them all into account.  There was also evidence given by the president of the Iraqi Community Cultural Association, who described the applicant as one of the main volunteers for their organisation, and how he assists new arrivals with language issues, and taking them to appointments.  He described how the applicant would help these newly arrived persons to become better members of the society.  He described his character generally as being very good, and said how he was held at the utmost respect in the community.  He said he was someone from whom you can always get good advice, and that he was always willing to help others.

27. The president of the Iraqi Community Cultural Association was aware of the reasons for the refusal of his citizenship application, namely the false documents, and he explained that that did not, in any way, affect his assessment of his character.  In particular, he understood, being a refugee, that people will try any means to get somewhere if they are put in a difficult situation of persecution.  He said that it was only a means to depart from the Philippines, and that it is not reflective of his character. 

1. Evidence was also given from the head of the Australian Migrant Resource Centre, who provides programs for migrants, including the applicant when he first arrived in Adelaide in about 2011.  She described the applicant as a responsible person, law abiding, and that he performed the duties expected of a permanent resident in Australia, including having gained employment and being a good family member and participator in the community. 

2. Good character is not defined in the Citizenship Act, but it is developed within the policy that I have referred to. That policy, in chapter 11, refers to enduring moral qualities of a person. I find that the applicant does have enduring moral qualities. He is a person who has upheld and obeyed the laws of Australia since he has been here. There is no suggestion that he contravened any laws prior to coming to Australia, except with respect to the obtaining of the false passport, which must be seen in the context of the persecution that he – or the fear of persecution that he had, and the desire to get out of the Philippines after being put through an horrific experience of being detained unlawfully for over 12 months.

3. The policy refers to the Australian values statement, which is something that the applicant has acted consistently with.  The policy refers to characteristics of the good character.  I will not go through each of them, but I find that the applicant exhibits all of the characteristics that are listed.  I do not consider that he has, in any way, been untruthful with the authorities.  It is certainly the case that he has not been, since he was in Australia.  To the contrary, he immediately confessed that he had arrived on a fake passport.  And so the only issue that can be put against the applicant is the obtaining of that false passport to leave the Philippines.

4. The policy refers to weighing up the character decision, and in particular whether there are any mitigating circumstances or explanation provided by the applicant that may outweigh the behaviour in question.  I find that there were mitigating circumstances that applied to the applicant’s conduct in obtaining the false passport and coming to Australia.  I also find, in terms of weighing up the question of character, that there is considerable weight to the conduct of the applicant since he arrived in Australia, which demonstrates that he is a person of good character. 

5. He is devoted to his family, he has participated in the community.  He has quickly turned from a person who needed the assistance of others as a refugee coming to Australia, to a person who indeed provides great assistance to people in a situation that he was only in a few years before.  I imagine that that means that he is greatly respected by those people because he has been through the same situation himself. 

6. With respect to the decision made by the delegate on 29 May 2017, I set aside the delegate’s decision, and I approve the applicant to become an Australian citizen, on the basis that I am satisfied of the criteria in section 21(2) of the Act.  In particular, I am satisfied that the applicant is of good character, and that section 21(2)(h) is satisfied.  I am also satisfied, with respect to section 21(2)(g) of the Act, concerning future residence or close and continuing association with Australia.  On that basis I would set aside the decision under review and make the decision in substitution to approve the applicant for citizenship.  Thank you.

   END OF ORAL DECISION   [5.36 pm]