Dawlatshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 2437

Dawlatshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2437 (22 July 2021)
Division:GENERAL DIVISION
File Number: 2020/8299
Re:Mohammad Yasin Dawlatshahi
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr A. Maryniak QC, Member
Date: 22 July 2021
Place:Melbourne

The Tribunal set asides and remits to the Respondent for reconsideration the reviewable decision of 17 November 2020, pursuant to s. 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, with the Direction that the Applicant satisfies the good character requirement as per s. 21(2)(h) of the Australian Citizenship Act 2007.

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Mr A. Maryniak QC, Member
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether Applicant has satisfied paragraph 21(2)(h) of Australian Citizenship Act – whether the Applicant is of good character– decision set aside and remitted to the Respondent – Tribunal satisfied that the Applicant is of good character
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Cases
Abebe v Commonwealth of Australia (1999) 197 CLR 510
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Djuraj v Minister for Immigration and Multicultural Affairs [2001] FCA 986
Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128
Minister for Immigration and Multicultural Affairs and Indigenous Affairs v SGLB [2004] HCA 32

Secondary Materials
Chapter 15 of the Revised Citizenship Procedural Instructions
REASONS FOR DECISION
Mr A. Maryniak QC, Member
22 July 2021

This is a review of a decision by a delegate of the Respondent of 17 November 2020 refusing the application for conferral of Australian citizenship to the Applicant.
The issue for determination is whether the Applicant is of good character pursuant to s. 21(2)(h) of the Australian Citizenship Act 2007 (the Act).
BACKGROUND
The following facts are not in dispute:
(a)The Applicant was born in 1983 in Ghazni, Afghanistan.
(b)The Applicant’s father was Azizullah Dawlatshahi and his mother is Fatema
Dawlatshahi. His father is deceased, and his mother is residing in Afghanistan.
(c)The Applicant has five brothers, who are:
(i)Mohammad Dawlatshahi (born in 1986) – deceased;
(ii)Rahmatullah Dawlatshahi (born in 1990) – deceased;
(iii)Abdullah Dawlatshahi (born in 1993) – residing in Afghanistan;
(iv)Mohammad Razi Dawlatshashi (born in 1996) – residing in Afghanistan; and
(v)Najeeb Dawlat Dawlatshashi – residing in Australia.
(d)The Applicant is married to Adela Dawlatshahi and they have three children together, Fawzir (born in 2004), Parwana (born in 2006) and Milad (born in 2008) who reside in Afghanistan.
(e)On 27 November 2009, the Applicant arrived as an illegal maritime arrival. He was interviewed by a delegate of the Respondent on 11 December 2009.
(f)On 17 February 2010, the Applicant was granted a Protection (subclass 866) visa. This visa was valid until 17 February 2015.
(g)On 28 June 2010, the Applicant proposed his wife, three children and two brothers for Global Special Humanitarian (subclass 202) visas. This visa application was refused on 3 July 2013.
(h)On 18 June 2014, the Applicant applied for Australian citizenship by conferral. The application was deemed invalid on 23 October 2014 as the Applicant did not satisfy the application requirements set out in s. 46 of the Act. On 3 November 2014, the Applicant lodged an application for conferral of Australian citizenship pursuant to s. 21 of the Act.
(i)The Applicant was granted a Resident Return (subclass 155) visa on 14 October 2016.That visa was valid until 14 October 2021.
(j)The Applicant sponsored his wife and three children for a Partner (subclasses 309/100) visa on 13 July 2017. The application is pending at present.
APPLICABLE LEGAL PRINCIPLES
Pursuant to s. 24(1A) of the Act, the Minister (and hence now the Tribunal) must not approve an application for Australian citizenship unless the Applicant satisfies the relevant eligibility requirement under s. 21 of the Act; apropos this review, s. 21(2)(h). The Tribunal must be satisfied that the Applicant is of ‘good character’ at the time of this decision by forming an “opinion requiring an evaluative judgement” and by reaching “an affirmative belief that the applicant is a person of good character” BOY19 v Minister for Immigration [2019] FCA 574 at [54]-[55].
In determining ‘good character’ the Tribunal is to look holistically at an applicant’s behaviour over time in order to be satisfied of ‘enduring moral qualities’ within the prospective Australian citizen. Such phrase, as guided by the Citizenship Policy Instruction 15 – Assessing Good Character under the Citizenship Act (CPI), encompasses the following:
(a)Characteristics which have been demonstrated over a long period of time;
(b)Distinguishing right from wrong; and
(c)Behaving in an ethical manner, conforming to the rules and values of Australian society.
CPI 15 further sets out examples of characteristics of a person of good character and they do not include those who practice deception or fraud in their dealings with the Australian Government or other organisations. For example, intentionally providing false personal information (such as fraudulent work experience or qualification documents); or other material deception during visa and citizenship applications.
Section 50 of the Act provides that it is an offence to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application for Australian citizenship.
The Tribunal is to consider a range of events and conduct connected with the Applicant: Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128 at [60].
Justice O’Bryan in BOY19 v Minister for Immigration [2019] FCA 574, engaged in a substantial analysis of the meaning of ‘good character’ in this context. Since not defined, the Parliament intended the term to be used in a broad way:
(a)One looks 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;
(b)It does not have a fixed and precise content;
(c)It imports a discretionary value judgement to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions; and
(d)It requires a judgment as to whether any proven deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.[1]
[1] BOY19 v Minister for Immigration [2019] FCA 574 at [51].
Justice O’Bryan accepted that “[t]he subject matter, scope and purpose of the Act is informed by its Preamble which states:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a)By pledging loyalty to Australia and its people;
(b)By sharing their democratic beliefs;
(c)By respecting their rights and liberties; and
(d)By upholding and obeying the laws of Australia.”
These ideals of diversity, democracy and liberty are to be assessed “by moral qualities that are regarded as a necessary concomitant of Australian citizenship”.[2]
[2] Ibid at [54].
As to the ‘satisfied’ requirement in s. 21(2)(h) of the Act, the word:
“is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities… the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite… the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion”.[3]
“The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context… satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character”.[4]
[3] Ibid.
[4] Ibid at [55].
The decision making power is therefore to be exercised reasonably.
Part of the task is to assess the relative weight to be given to conduct that reflects positively or negatively on the Applicant’s character.[5]
[5] Ibid at [76].
Respect for the institutions of government including government departments is consistent with being of ‘good character’ in the statutory sense. Such respect can be characterised as a moral quality that is relevant to citizenship.[6]
[6] Ibid at [88].
CONSIDERATION
The Applicant highlights that Australian Courts recognise that false information provided during the protection visa process is common and that the: “pressure of circumstances may lead some applicants for refugee status to tell lies” Djuraj v Minister for Immigration and Multicultural Affairs [2001] FCA 986 at [30] per Drummond J. See also Minister for Immigration and Multicultural Affairs and Indigenous Affairs v SGLB [2004] HCA 32 at [73] and Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191].
The Applicant accepts that he failed to declare his two deceased brothers, Mohammad and Rahmatullah, in his early interview on 11 December 2019 or his brother, Najeeb Dalwat, in any of his immigration (or citizenship) matters prior to 25 July 2020. Further, the Applicant declared that his mother was deceased in his application for an Offshore Humanitarian Visa (25/6/10), Form 80 (20/9/11), citizenship related Form 80 (28/9/16) and Form 80 (6/9/19).
The Applicant asserts generally that “these applications were submitted over a number of years and were prepared with the assistance of different people, some of whom had a vested interest in ensuring that certain information was provided or not provided. The Applicant’s grasp of English was [and is] limited, and he did not appreciate the importance of ensuring that accurate and correct information was declared to the Australian Government… the discrepancies are a result of the difficult circumstances of the family and the obedience of the Applicant to his family”. [7]
[7] Applicant’s Statement of Facts, Issues and Contentions at [46]-[47].
The Respondent submits that the Tribunal should not be satisfied that the Applicant is of good character because he has repeatedly provided false and misleading information. The non-disclosure of his brother Najeeb continued until questioned by the Department in June 2020 and was only corrected by the Applicant in his statutory declaration of 25 July 2020.
It was submitted by the Respondent that the false information regarding his mother being deceased was intentional and designed to secure a positive migration outcome for members of the Applicant’s family. Further, the Respondent submits, as Applicant’s conduct continued for about 10 years and only nine months had passed since the error was rectified, there has been insufficient time for the Applicant to now demonstrate the enduring moral qualities required to satisfy the Tribunal of his ‘good character’.[8]
[8] Respondent’s Statement of Facts, Issues and Contentions at [2] and [46].
The documentary evidence before the Tribunal comprised:
(a)The T, Supplementary T and Further T documents;
(b)Statutory Declaration of the Applicant dated 22 March 2021;
(c)Statutory Declaration of Wayne Edward Ormiston dated 11 March 2021;
(d)Statutory Declaration of Kevin Powell dated 12 March 2021;
(e)Statutory Declaration of Derryn Langridge dated 12 March 2021;
(f)Letter from Brentwood Park Family Practice dated 22 April 2021;
(g)Letter from Dr Kishawi dated 17 March 2021; and
(h)Statutory Declaration of Mohammed Zarif Ahmadi dated 16 March 2021.
Oral evidence was given by the Applicant (through an interpreter) Mr Ormiston, Mr Ahmadi and Mr Langridge.
The Applicant’s ethnicity is Hazaras and his religion Shia. As such, his life in Afghanistan was difficult. Two of his brothers unfortunately died when he was young, he had no formal education and never had any formal interactions with government authorities or agencies there. Due to risk from the Taliban he left Afghanistan for Australia.
After his visa was granted and he was released into the Australian community, he was told by others in English classes, then conducted by Australian Multicultural Education Services, that if he declared to the Australian government that his mother had passed away, then that will be advantageous in him sponsoring his brothers to Australia. He believed it was a way in which he could save his brothers from danger.[9] He provided such incorrect information regarding his mother in June 2010 on the Form 842 - Application for an Offshore Humanitarian Visa and his Form 80 in September 2011.
[9] Transcript of Proceeding, Day 1 (‘Transcript’) at [p 15-17].
Next, in a citizenship application dated 28 October 2014, he stated that his mother was alive because by then he had knowledge of Australian law, he wanted to ‘correct the mistake’ and was feeling a ‘weight in my shoulder’ and ‘wanted to feel comfortable’.[10] The Applicant’s evidence in this regard was convincing.
[10] Ibid at p 19.
Such desire to be truthful did not extend to revealing the existence of his brother Najeeb which, on the evidence before the Tribunal, is explained by the fact that he has never had a good relationship with Najeeb and Najeeb did not want to be included in that application. Due to tradition, the Applicant is the head of the family as the eldest here in Australia so he is obliged to continue to live with his, often aggressive and controlling younger brother Najeeb. Hence, despite the Applicant being older, he felt he had no alternative but to follow Najeeb’s demand and not disclose his existence, to maintain harmony between them and within their household. Further, despite living in the same house, the Applicant has a separate life from Najeeb and his family.[11] The Tribunal finds that in these circumstances, it is clear that in the past Najeeb had a level of control or influence over the Applicant.
[11] Ibid at pp 25-26.
The Tribunal also accepts the Applicant’s evidence regarding his two deceased brothers and finds that the non-disclosures by the Applicant in this regard were inadvertent, not intentional and understandable due to his young age at the time of their unfortunate passing, such as not to detract from an assessment of his character.[12]
[12] Ibid.
The Applicant’s mental health is not good, largely due to the fact that his wife and three young children remain in Afghanistan and he fears for their safety.[13] Such fears are amplified by current events unfolding in Afghanistan.
[13] Exhibits A8 and A9.
The Applicant acknowledges the mistakes he has made and asks for forgiveness.[14] It is apparent to the Tribunal that he is genuinely remorseful and clearly understands the distinction between right and wrong.
[14] Transcript at p 27.
The Applicant was cross examined. Substantial confusion arose surrounding the Applicant’s evidence in respect of paragraph 15 of his statutory declaration of 22 March 2021. The Applicant’s sister in law, Salima Haidari, completed the application document for the Applicant, she having a better command of English. The Tribunal accepts, on balance, the Applicant’s explanation as to why his mother was listed as deceased, over the possible discrepancies identified during cross examination.[15]
[15] Ibid at pp 35-43.
The Applicant’s most recent signed Form 80 was provided in September 2019. Most other forms which he had signed in the past listed his mother as deceased. In cross examination, he stated “I have completed different forms by different people, like Emma (indistinct) Salima and other people and because I’m like a (indistinct) person when someone says something I accept it. But now I accept that is my mistake, I can accept it”.[16] In the opinion of the Tribunal, the Applicant now appreciates the danger of letting others complete forms for him in English and then signing them without a clear understanding of their content. The Tribunal is also confident that the Applicant is unlikely to allow this to happen in the future and that he genuinely regrets his past instances of this conduct.
[16] Ibid at p 44.
The Applicant had some difficulties giving his evidence during the hearing and this was understandable due to his obvious lack of formal education and difficulties with his memory, qualities of the Applicant which the Tribunal accepts. The Tribunal is of the opinion, despite such challenges, that the Applicant gave his evidence honestly and was not trying to mislead the Tribunal. It was clear that the Applicant found the experience of giving evidence quite challenging which is understandable in light of his background and life experience to date.
The Tribunal is satisfied that the Applicant cannot read English very well (and probably did not read the relevant prior documents prepared on his behalf by others), and this has led to a repeating of minimal misinformation originally provided by the Applicant years ago, by those assisting him. Hence relevant subsequent applications or documents have repeated the error and ‘inadvertently incorrectly entered’ that his mother was deceased.[17]
[17] Ibid at pp 46-50.
The Tribunal is satisfied that the Applicant has been troubled by the incorrect information he has provided in the past for some years and that he now understands the importance of carefully checking the content of all documents that he signs to ensure that he understands the content of such documents and that such content is true and correct. On the evidence, this is not a concept he was familiar with prior to arriving in Australia and because of his life experience it is a concept that he has come to know over the years, as he has developed his life in Australia. It is evident that he has developed an appreciation for honesty in dealing with Australian Government authorities over the last few years.
Substantial and persuasive character evidence given in favour of the Applicant underscores the way the Applicant has developed as a prospective Australian citizen over the last few years. Numerous statutory declarations and letters of support are in evidence and oral evidence was also given by:
(a)Wayne Edward Ormiston, the Applicant’s English teacher and close friend who testified as to his good character and trustworthiness. For example, in 2019, he entrusted the Applicant with his house and garden by leaving him a key whilst overseas;[18]
(b)Mohammed Zarif Ahmadi, a close friend of the Applicant who has known him for over a decade. His evidence was consistent with and supported relevant aspects of evidence of the Applicant’s life experience and limitations which was before the Tribunal; and
(c)Derryn Langridge, a friend of the Applicant.
[18] Ibid at p 62.
On balance, upon reviewing all of the evidence, the Tribunal does not accept that the Applicant’s ultimate ‘correcting of the record’ by his statutory declaration of 25 July 2020 was ‘too little too late’. Such a view does not withstand close scrutiny once all the evidence is assessed. It is by no means clear that the Applicant is responsible for the latter repeats of the incorrect information regarding his mother being deceased. Also, the non-disclosures regarding Najeeb were the result of significant (and essentially inescapable) familial duress. The Tribunal is satisfied that the Applicant will not succumb to such duress in the future.

The Applicant being uneducated and mentally challenged (yet still endowed with an established sense of right and wrong), has in the past tried to keep those in his family happy and has made some mistakes regarding misinformation contained in various forms which he has signed. However, the explanations surrounding such mistakes are accepted by the Tribunal and as such do not significantly detract from an objective assessment of his ‘good character’. The evidence does not disclose a pattern of systematic and wilful misleading conduct by the Applicant in his dealings with the Australian Government.
The Tribunal also finds on the evidence that the Applicant is a hard worker, who works six days a week and yet still finds time to assist others. Further, he has not faced any criminal charges in Australia. These findings support the Tribunal’s opinion that the Applicant is of ‘good character’ and will make a positive contribution to the Australian community in the future.
By reason of the matters discussed above, the Tribunal is satisfied as to the enduring moral qualities of the Applicant, that he knows right from wrong, that he appreciates his prior mistakes and is genuinely remorseful. The Tribunal is satisfied as to the Applicant’s ‘good character’ for the purposes of s. 21(2)(h) of the Act.
On 15 July 2021, submissions were sent to the Tribunal on behalf of the Applicant which are without foundation, particularly in light of the above.
DECISION
The Tribunal sets aside the reviewable decision of 17 November 2020 and remits the matter to the Respondent for reconsideration pursuant to s.43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the Tribunal being satisfied as to the Applicant’s ‘good character’. This is the correct or preferable decision.

I certify that the preceding 40 (Forty) paragraphs are a true copy of the reasons for the decision of Mr. A. Maryniak QC, Member

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

Dated: 22 July 2021

Dates of hearing: 6 and 7 May 2021

Advocate for the Applicant:
Ms Kim Rubinstein

Solicitor for the Applicant: Clothier Anderson Immigration Lawyers

Advocate for the Respondent: Mr Thomas Creedon

Solicitor for the Respondent: Australian Government Solicitor

Dates of hearing:	6 and 7 May 2021
Advocate for the Applicant:	Ms Kim Rubinstein
Solicitor for the Applicant:	Clothier Anderson Immigration Lawyers
Advocate for the Respondent:	Mr Thomas Creedon
Solicitor for the Respondent:	Australian Government Solicitor