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

[2021] AATA 4015

DXXJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4015 (3 November 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2020/3021
GENERAL DIVISION	)

Re: DXXJ
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Senior Member M J McGrowdie

DATE OF CORRIGENDUM: 5 November 2021

PLACE:           Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application such that the date of the decision, the date of written reasons, and the date in the signature block are to be altered from “3 November 2021” to “29 October 2021”.

.............................[SGD]......................................

Senior Member M J McGrowdie

Division:GENERAL DIVISION

File Number(s):      2020/3021

Re:DXXJ

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:3 November 2021

Place:Sydney

The decision of the delegate of the Minister made on 22 April 2020 to refuse the Applicant’s application for Australian Citizenship by conferral pursuant to s 24(1) of the Australian Citizenship Act 2007 is affirmed.

.............................[SGD]...........................................

Senior Member M J McGrowdie

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral - assessment of character under the relevant legislation - where altered documents used to obtain a New South Wales Driver's License - false information supplied at International Airport in Australia - decision affirmed.

LEGISLATION

Australian Citizenship Act 2007 (Cth) s24

CASES

Zheng v Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

Australian Citizenship [Policy Statement]

CPI 15 - Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member M J McGrowdie

3 November 2021

INTRODUCTION

1. DXXJ was born in Iran in 1986. He left Iran to travel to Australia arriving in September 2010 as an illegal maritime immigrant. He was granted a Protection Visa in June 2011. This was granted on the basis that the Applicant feared persecution in Iran because of his sexuality and having been in a homosexual relationship until shortly before his departure from Iran. The Applicant was afraid that the relationship would be reported to the authorities in Iran, particularly because his partner’s father was irate.

2. When in immigration detention in Australia, the Applicant was registered under a name which excluded part of his surname. When the Protection Visa was issued, it was in this altered version of his name.

3. The Applicant submitted altered documents when applying for a New South Wales Driver’s License. His Iranian Driver’s License and Motorcycle License were altered to show his name as the above mention shortened version.

4. The delegate for the Minister considered that this was a matter which went adversely to character in respect of the Applicant’s application for citizenship in September 2017 which was refused on 22 April 2020.

5. An additional matter which the delegate took into account was information provided by the Applicant during a baggage search at Melbourne Airport on 23 June 2019 when the Applicant was about to travel overseas. The Applicant was found to have an Iranian passport but stated that he intended to spend most of his time in Georgia and would also visit Turkey and Thailand. On his return visitor card he stated that he had spent the majority of his time in Turkey. In fact the Applicant had spent thirty-three days out of forty-two days in Iran.

6. The delegate considered that the Applicant provided false information in relation to his travel and that the Applicant’s travel to Iran was inconsistent with his obtaining a Protection Visa and was also a matter going to character.

7. The delegate refused the Applicant’s Application for Citizenship upon the basis that the delegate was not satisfied that the Applicant was a person of good character as required by section 21(2)(h) of the Australian Citizenship Act 2007. The Applicant lodged the current application with the Tribunal for a review.

   ISSUES

8. The primary issue for determination is whether the Applicant may be regarded as a person of good character as required by the Act.

9. In addressing that issue it is relevant to consider the Applicant’s use of altered documents in Australia and whether the Applicant’s concealment of his return to Iran for a period are inconsistent with a conclusion that the Applicant can be regarded as a person of good character for the purposes of his Application for Citizenship.

   THE LEGISLATION

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

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

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

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

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

    DISCUSSION

15. It was submitted by the Respondent that the Applicant’s use of altered documents and his travel back to Iran on an Iranian passport coupled with statements made by the Applicant at the airport when departing Australia and on his incoming passenger card were not the actions consistent with a person of good character.

16. Further, the Respondent submits that the Applicant’s return to Iran on an Iranian passport was inconsistent with the basis upon which the Applicant obtained a Protection Visa, namely, that he feared persecution in Iran.

17. In respect of the latter, the Applicant said that he did fear persecution in Iran when he obtained the Protection Visa but as time passed that fear diminished. When in Australia he wished to return to Iran to visit his sick mother, he considered that it would be easier for him to travel to Iran on an Iranian passport as he was still an Iranian citizen. He obtained the passport from the Iranian Embassy in Canberra and when there were no “red flags” raised, he thought that it would be safe for him to return to Iran.

18. In respect of the false statements the Applicant made at the airport and on his returning passenger card, it is clear that he thought it was easier and would attract less attention if he did not mention his return to Iran. This may well have been so, however, it is noted that at the time of his travel in 2019 he had obtained Resident Return (subclass 155) visa granted on 24 September 2018. This was subsequent to when he obtained his Iranian passport.  The Applicant had also travelled to Iran on 5 October 2018 to visit his sick mother and returned on 18 December 2018. It seems that the Applicant did not wish to jeopardise in any way his residency in Australia.

19. In respect of the Driver’s License, the Applicant said that he did not quite know what to do about his name as it appeared on his Protection Visa and his name in full on the licenses issued in Iran. The Applicant said that he asked his brother in Iran to have his name on the Iranian license changed to match his name shown on the visa. His brother then sent him the altered copies of the Iranian documents which the Applicant used to obtain his New South Wales Driver’s License.

20. When the Applicant made an earlier Application for Citizenship in 2015 he says he inadvertently submitted the altered copies of his Iranian license as identity documents along with his birth certificate with his full name. This came to the attention of the Minister’s Delegate when dealing with the current Application for Citizenship.

21. I accept what the Applicant has said about the altered documents being inadvertently submitted for citizenship. However, the Applicant’s version of how it was that he had innocently used altered copies of documents to obtain his New South Wales Driver’s License in an innocent way is a version that is not convincing. I find it more likely that the Applicant used altered copies because it would make things easier for him.

22. In a Statutory Declaration dated 29 May 2017 the Applicant said in relation to his licenses in Iran that he went to a copy shop in Iran and asked them to remove part of his name. He then stated that he asked his family to send him the licenses and what he received was copies. This version is somewhat different from the version given at the hearing as previously outlined. The absence of a clear explanation of what took place reinforces the view that the Applicant was expedient when it came to his obtaining a New South Wales Driver’s License.

23. There is a similarity between what happened with the driver’s license and his lack of frankness regarding his trip to Iran in that the Applicant did what he thought was easiest and which would cause him the least trouble.

24. In a Statutory Declaration made on 11 December 2019 in relation to his Citizenship Application, the Applicant states in relation to his trip to Iran in 2019 that it just so happened that he spent more time in Turkey than Georgia and this is why he put Turkey on his incoming passenger card as the country where he spent most time abroad. This is contrary to the fact that the Applicant spent most of his time in Iran.

25. In Australia the Applicant runs a successful health and supplements business. At the baggage check material was found on his phone about steroids. This is something that the delegate raised as a concern in respect of the Application for Citizenship. The Applicant has said that he has never provided steroids to anyone although he is asked about them and likes to keep informed. A conclusion that the Applicant deals in illegal steroids could not be reached on scant evidence and is therefore not a matter which weighs against the Applicant.

    CONCLUSION

26. The fact that the Applicant was not frank with regard to his travels and in obtaining a New South Wales Driver’s License show a lack of responsibility in his dealings with Australian Authorities. In consequence, I am not satisfied that the Applicant meets the standard of behaviour which would be required to be satisfied that the Applicant is a person of good character for the purposes of the Act.

27. I accept that the Applicant otherwise seems to have assimilated into the Australian Community, has not been in trouble with the law and appears to be running a successful business.

28. With the further passage of time a different view might be taken in regard to the assessment of the Applicant’s character. It is the similarity of conduct in relation to the motor vehicle licenses and the lack of frankness to authorities in relation to his travel to Iran that presently count against the Applicant. I accept that at the time of obtaining a Protection Visa the Applicant did have a fear of persecution. I also accept that the risk of persecution diminished with the passing of time and that the Applicant felt he could visit Iran, especially after obtaining an Iranian passport. I do not consider that the Applicant’s visit to Iran made it unlikely that the Applicant had a fear of persecution when he obtained the Protection Visa or that he was being deceptive at that time and accordingly, this is not a matter which adversely affects the assessment of the Applicant’s character.

29. The Applicant does need to demonstrate that he acts with honesty and frankness in his dealings with authorities which includes obtaining the motor vehicle license and providing particulars of his travel. The Applicant said that it was common in Iran for people to be “street smart” when it came to dealing with authorities. I’m sure that the problems that the Applicant has had in obtaining Australian Citizenship have demonstrated to him a need to act with integrity in his dealings with government in Australia. The Applicant does have the opportunity to now go forward. However, for the reasons given, the character requirement has not been satisfied in this Application for Citizenship.

    DECISION

30. The decision of the delegate of the Minister made on 22 April 2020 to refuse the Applicant’s application for Australian Citizenship by conferral pursuant to s 24(1) of the Australian Citizenship Act 2007 is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

...................................[SGD].....................................

Associate

Dated: 3 November 2021

Date(s) of hearing:	29 March & 31 May 2021
Advocate for the Applicant:	Mr L Luo
Solicitors for the Respondent:	Mr T Hillyard