Ghumaan and Minister for Home Affairs (Citizenship)
[2019] AATA 200
•20 February 2019
Ghumaan and Minister for Home Affairs (Citizenship) [2019] AATA 200 (20 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/3803
Re:Ramandeep Singh Ghumaan
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:20 February 2019
Place:Sydney
The decision under review is affirmed.
.............................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP — Applicant granted Australian citizenship — Applicant later found to have entered Australia with a forged passport — Applicant's Australian citizenship revoked by the Minister — Applicant found guilty of migration offences for false and misleading statements on visa and citizenship application - whether revocation of citizenship is in the public interest – consideration of the “public interest” – whether discretion to revoke citizenship should be exercised – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Foreign Passports (Law Enforcement and Security) Act 2000 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Migration Amendment (Strengthening the Character Test) Bill 2018 (Bill)
Passports Act 1967 (India)
Passports Rules 1980 (India)
CASES
Briginshaw v Briginshaw [1938] 60 CLR 366
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
D v National Society for the Protection of Children [1977] UKHL 1
Director of Public Prosecutions v Smith [1991] 1 VR 63
Egan v Minister for Immigration and Border Protection [2017] AATA 2705
Eidson v Minister for Immigration and Border Protection [2017] AATA 1354
Fang v Minister for Immigration and Border Protection [2018] AATA 3696
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Gjergji and Minister for Home Affairs (Citizenship) [2019] AATA 72
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Janko Rottmann v Freistaat Bayern (European Court of Justice, C- 135/08, 2 March 2010)
Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27
Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132
Kassem v Minister for Home Affairs [2018] AATA 4383
Kleeman and Minister for Immigration and Border Protection [2017] AATA 875
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142
Minister for Immigration and Border Protection v Egan [2018] FCAFC 169
Mohammed v Minister for Immigration and Border Protection [2018] AATA 687
Nguyen v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082
Osorio v Minister for Immigration and Citizenship [2007] AATA 59
O’Sullivan v Farrer and Another [1989] 168 CLR 210
Re Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255
Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs [1993] 30 ALD 292
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health and Another (1995) 56 FCR 50
Sankey v Whitlam and Others [1978] HCA 43
Shi and Migration Agents Registration Authority [2008] HCA 31
TRHL and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 803
TRHL v Minister for Immigration and Border Protection [2016] FCA 376
Waraich v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4524
WBU v Minister for Immigration and Citizenship [2007] AATA 1143
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
TREATIES
Convention on the Reduction of Statelessness, opened for signature on 30 August 1961, 14458 UNTS 989 (entered into force 13 December 1975)
SECONDARY MATERIALS
Cicero. De Legibus, edited by C. Keyes. Loeb Classical Library, Cambridge, MA: Harvard University Press, 1928
Commonwealth, Parliamentary Debates, House of Representatives, 13 December 1907 (Hon Alfred Deakin MP)
Commonwealth, Parliamentary Debates, House of Representatives, 16 October 1996 (Hon Philip Ruddock MP)
Commonwealth, Parliamentary Debates, House of Representatives, 25 October 2018
Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016
Explanatory Memorandum to the Migration Legislation Amendment Bill (No.3) 1996
John Locke, ‘An Essay Concerning the True Original, Extent and End of Civil Government’ in Two Treatises of Government (J.M. Dent & Sons, London, 1962)
Kim Rubenstein: Australian Citizenship Law (Lawbook Co., 2nd edition, 2017)
Parliament of Australia, Joint Standing Committee on Migration: No one teaches you to become an Australian, December 2017
Sangeetha Pillai: “The Rights and Responsibilities of Australia Citizenship: A Legislative Analysis”, Melbourne University Law Review, [2014] 37(736)
Scott, Walter, Marmion: A Tale of Flodden Field (1808)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
20 February 2019
Cancellation of Citizenship
On 21 June 2018 the Minister for Home Affairs[1], The Hon Peter Dutton MP, personally revoked the citizenship of Ramadeep Singh Ghumaan (the Applicant) under the provisions of section 34(2) of the Australian Citizenship Act 2007 (the Act). The basis for the Minister’s determination was that allowing the Applicant to remain an Australian citizen would be “contrary to the public interest.”[2]
[1] Formally Minister for Home Affairs, Minister for Immigration and Border Protection.
[2] Section 37 Documents at [11]-[18].
The Applicant’s citizenship was granted on 29 November 2007.[3]
[3] Ibid at [48].
Although the Applicant agrees that his correct name is Amandeep Singh and he was so referred to throughout in the Tribunal hearings, the proceedings in this Tribunal were commenced under his assumed name of Ramandeep Singh Ghumaan and, for the sake of consistency with the notified record, that is the name which will be used, other than when he is referred to as “the Applicant”, throughout this statement of reasons and it is the family name that will be used in relation to his wife and children.
On 9 July 2018 the Applicant applied to this Tribunal for a review of the Minister’s decision.[4]
[4] Ibid at [1]-[6].
The Applicant’s personal history
Details of the Applicant’s personal history are set out in his Statement of Facts, Issues and Contentions and accepted by the Minister (the Respondent) as follows:
·The Applicant was born in India on 25 October 1980 and named Amandeep Singh.
·He first arrived in Australia as a student in 1997 (aged 16) to study Information Technology, a course which he did not complete.
·He states that the reason for his abandoning his studies was that, at the age of 19 he married an Australian woman (Belinda Nolan) and that he needed to gain productive employment to support her. This marriage lasted until 2002 at which stage his ex-wife withdrew her support for his immigration application and he returned to India. The status of this marriage is a matter of dispute between the parties in this hearing (see below).
·At the time he returned to India, he was holding a visa which allowed him to return to Australia at any time up until 20 March 2003.[5]
·In about June 2002, the Applicant met Rajeshree Monika Nath. After knowing each other for a short period of time the couple decided to get married. Ms Nath wanted to get married in India, for “cultural reasons” connected with the recent death of her uncle. This marriage (Mr Ghumaan’s second) took place in Punjab (India) on 15 March 2003.
·Following what he claims was “bad advice” to the effect that he could not return to Australia because of his recent divorce, the Applicant applied for a new Indian passport using the alias Ramandeep Singh Ghumaan.
·Using that alias he and Monika (who Australian Border Force confirm was an Australian citizen[6]) returned to Australia on a Class UF Subclass 309 – Partner visa, she acting as sponsor and he obtained residency as Monika’s spouse. He then obtained citizenship on 29 November 2007.
·The Applicant and Monika have an Australian citizen child born in 2008.
·In 2012 the couple divorced. In her Statutory Declaration, Monika Ghumaan states: “Due to unforeseen circumstances we had no choice but to divorce.”[7] The circumstances are not stated, although the Applicant apparently provided something of an explanation to Mr Neil Ballardie (a consultant psychologist).[8]
·On 18 January 2014 the Applicant entered into a third marriage with Gagandeep Kaur Sekhon, with whom he has two further children born in 2015 and 2017. These children are Australian citizens.
[5] Respondent’s tendered material R1. The visa was class WB-020.
[6] Australian Border Force Minute (Trim Ref IOF2013/319) undated. Respondent’s Tender Bundle at [1]-[2].
[7] Ibid at [256]-[257]. The Statutory Declaration is dated 17 April 2018.
[8] Ibid at [237] paragraph [3.5].
The Applicant is charged with several offences
On 21 February 2017 the Applicant came before the Local Court facing six charges: four under section 234(1)(b) of the Migration Act 1958 and 2 under section 50(1) of the Australian Citizenship Act. He pleaded guilty to all charges which were summarised by Magistrate Russell as follows:
“Mr Amandeep Singh pleads guilty to a series of offences. The first series is four offences of making a false statement under the Migration Act. Those offences occurred in March 2003, in December 2004, in February 2005 and March 2009. He pleads guilty to an offence under the Australian Citizenship Act which was committed in May 2007 and another offence of that nature in September 2011, making a false or misleading statement in connection with his application for citizenship. These offences were committed by Mr Singh in order to obtain a spousal visa, a partner visa, in the first place; later when he applied for citizenship and an application to sponsor his father’s interim visa. The false statements came to light as a result of forensic analysis within the department.”[9]
[9] Ibid at [24].
The Magistrate had before her a report from a consultant psychologist, Mr Neil Ballardie, dated 16 February 2017, which report is also before the Tribunal.[10]
[10] Ibid at [236-]-[242].
In her sentencing remarks Her Honour said:
“The offences under the Migration Act carry a maximum penalty of ten years’ imprisonment and under the Australian Citizenship Act, 12 months’ imprisonment. He has been living in this country first under his own name and subsequently under a false name since 1997. The deception he engaged in has been ongoing and repeated in the various offences since 2003. There is a strong need for general deterrence with respect to offences of this kind. That need for general deterrence is not, in my view, mitigated to any significant extent by the matters raised in the report of the psychologist, Neil Bellardy (sic), which although in the executive summary to the report speaks of determining that Mr Singh has a depressive illness, in fact the body of the report does not support the extent of that finding at all.”
Her Honour imposed the following sentences:
·With respect to false statement under the Migration Act – 400 hours of community service;
·With respect to the May 2007 misleading statement in connection with a citizenship application - 100 hours of community service (cumulative upon the first sentence);
·With respect to the September 2011 offence under the Australian Citizenship Act – 100 hours of community service (to be served concurrently).
The Tribunal notes that a sentence of community service totalling 500 hours was imposed in circumstances where significant custodial penalties were available to the Court.[11] In other similar cases involving false identity and declarations, the court either imposed a sentence of two (concurrent) periods of recognisance release for 12 months, together with a good behaviour bond and a fine of $1,000,[12] or where no previous conviction had been recorded, nevertheless imposed a two year good behaviour bond.[13]
[11] The Applicant completed his 500 hours of community service successfully. Section 37 Tribunal Documents at [255].
[12] Fang v Minister for Immigration and Border Protection [2018] AATA 3686 at [43].
[13] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354 at [12].
Relevant legislation
With respect to the charges involved in Mr Ghumaan’s case and the matters before the Minister, the relevant sections of the legislation in question are:
AUSTRALIAN CITIZENSHIP ACT 2007 - SECT 21
Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
Note 1: Subsections (2) to (8) deal with eligibility.
Note 2: Section 46 sets out application requirements (which may include the payment of a fee).
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.
AUSTRALIAN CITIZENSHIP ACT 2007 - SECT 24
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.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
(2A) If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in relation to the person, the decision under subsection (1) of this section must be made by the Minister personally.
Identity
(3) The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
AUSTRALIAN CITIZENSHIP ACT 2007 - SECT 34
Revocation by Minister--offences or fraud
Citizenship by descent or for persons adopted in accordance with the Hague Convention on Intercountry Adoption or a bilateral arrangement
(1) The Minister may, by writing, revoke a person's Australian citizenship if:
(a) the person is an Australian citizen under Subdivision A or AA of Division 2 (including because of the operation of section 32); and
(b) either of the following apply:
(i) the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code , in relation to the person's application to become an Australian citizen;
(ii) the person obtained the Minister's approval to become an Australian citizen as a result of third-party fraud within the meaning of subsection (8); and
(c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
Citizenship by conferral
(2) The Minister may, by writing, revoke a person's Australian citizenship if:
(a) the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b) any of the following apply:
(i) the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code , in relation to the person's application to become an Australian citizen;
(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);
(iii) the person obtained the Minister's approval to become an Australian citizen as a result of migration-related fraud within the meaning of subsection (6);
(iv) the person obtained the Minister's approval to become an Australian citizen as a result of third-party fraud within the meaning of subsection (8); and
(c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
(3) However, the Minister must not decide under subsection (2) to revoke a person's Australian citizenship if:
(a) the Minister may revoke the person's Australian citizenship under that subsection only because of the application of subparagraph (2)(b)(ii); and
(b) the Minister is satisfied that the person would, if the Minister were to revoke the person's Australian citizenship, become a person who is not a national or citizen of any country.
……………………
Migration- related fraud
(6) For the purposes of this section, a person obtained the Minister's approval to become an Australian citizen as a result of migration-related fraud if and only if:
(a) at any time, the person was convicted of an offence against:
(i) section 234, 236 or 243, or former section 244 (as in force before its repeal by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws--General Law Reform) Act 2008 ), of the Migration Act 1958 ; or
(ii) section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code ;
that the person committed at any time before the Minister gave the approval; and
(b) the act or omission that constituted the offence was connected with the person's entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia.
AUSTRALIAN CITIZENSHIP ACT 2007 - SECT 50
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.
MIGRATION ACT 1958 - SECT 234False 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.
The revocation of Australian citizenship
In the first instance, in order to be granted citizenship by conferral, applicants must meet the tests set out in section 21 of the Act (supra). This implies clearly, inter alia, that the material placed before the Minister for his consideration is of such a nature as to allow a proper assessment that the applicant “is of good character” (section 21(2)(h)). Information which is either false, misleading or inadequate may well serve to frustrate the purpose of the Act, and information which is provided knowingly and deliberately, with an attempt to conceal or deceive is especially pernicious in this regard.
It is also important to note that the Minister is prohibited (“must not approve”) from approving a citizenship application unless he/she is “satisfied of the identity of the person” (section 24(3) of the Act).
It will be apparent from the above, that Australian citizenship may be revoked on a number of grounds. These include:
·the person has been found guilty of making a false or misleading statement in relation to their citizenship application;
·the person has gained citizenship either through migration-related fraud, or third party fraud;
·the person has been convicted of an offence against either an Australian or foreign law and have either been sentenced to death, or a term of imprisonment for 12 months or more;
·the person has been convicted of a serious criminal offence and has been sentenced to at least 12 months imprisonment at any time prior to becoming a citizen;
·the person has served in the military of another nation (or prescribed terrorist group) that is engaged in armed conflict with Australia; and
·the Minister is satisfied that it would be contrary to the public interest if a person remains an Australian citizen.
It should be noted that the citizenship of children cannot be revoked if one of their parents is an Australian citizen, nor can a revocation take place if such revocation would render the person concerned stateless.[14]
[14] Citizenship Act section 34(3).
I discussed the general question of citizenship revocation in Fang[15] and repeat now what I included in that determination, updated since October 2018.
[15] Fang v Minister for Home Affairs [2018] AATA 3696.
Revocation of Australian citizenship is a rare occurrence. The Tribunal notes this and recognises the gravity of the decision which it has to make.
It also notes that there is relatively little judicial or Tribunal authority on this matter, with only a limited number of cases being determined in recent years.
According to the authoritative text by Kim Rubenstein: Australian Citizenship Law, between 1948 (when the original Migration Act was passed) and the end of May 2016 there had been only 20 revocations of citizenship. Of these, only seven appear to have been revoked on the basis of the individual having supplied false information as part of their citizenship application.[16]
[16] Kim Rubenstein: Australian Citizenship Law (Lawbook Co., 2nd edition, 2017) pages 255-56.
Since 2016 there appear to have been only eight such cases. In four of those the basis for cancellation of the citizenship related to the “substantial criminal record” of the individual concerned. Three of those cases led to the Minister’s decision being affirmed.[17]
[17] TRHL and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 803; TRHL v Minister for Immigration and Border Protection [2016] FCA 376; Kleeman and Minister for Immigration and Border Protection [2017] AATA 875.
One matter resulted in the Minister’s decision being set aside,[18] although this decision was overturned by the full Federal Court[19] and remitted to the Tribunal for reconsideration.
[18] Egan v Minister for Immigration and Border Protection [2017] AATA 2705 per Deputy President Justice Stevenson.
[19] Minister for Immigration and Border Protection v Egan [2018] FCAFC 169.
Two other cases have dealt with the issue of identity fraud or the provision of false or misleading documentation,[20] although this had been addressed in some of the earlier cases.[21] In both of those cases the Minister’s decision was affirmed by the Tribunal.
[20] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354 and Fang v Minister for Immigration and Border Protection [2018] AATA 3696.
[21] Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs [1993] 30 ALD 292; Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA; Osorio v Minister for Immigration and Citizenship [2007] AATA 59; WBU v Minister for Immigration and Citizenship [2007] AATA 1143.
In Kassem,[22] this Tribunal upheld the Minister’s revocation decision on the basis that the Applicant was not a permanent resident at the time of his citizenship application and thus not eligible to have that application considered. That decision of the Tribunal’s is before the Federal Court by way of an application for an extension of time to lodge a full appeal. The matter is not yet determined.
[22] Kassem v Minister for Home Affairs [2018] AATA 4383.
By contrast in Waraich[23] the Tribunal set aside the revocation of the applicant’s citizenship on the basis that the Minister had, in the opinion of the Tribunal, not satisfied the “public interest” test in section 34(2)(c) of the Act. In this case the Tribunal made the following observations:
“(74) I can of course see that it is important in a general way to maintain the integrity of both the migration and citizenship regimes as aspects of the public interest. But I can only see their integrity being maintained via section 34(2)(c) in a particular case only if in the context of that case it is contrary to the public interest for an offender to remain an Australian citizen.
(75) In that regard it is not enough in my view merely to point to an offender’s convictions as if it were self-evidently so. Section 34(2)(c) is not expressed in a way which allows that. Merely being convicted does not make it self-evidently contrary to the public interest for a person to remain an Australian citizen. There may be very many good reasons why it is in fact in the public interest for a convicted person to remain an Australian citizen.
(76) It is not however a question under section 34(2)(c) of what is in the public interest but only of what is contrary to it. More needs to be shown that merely convictions to show that it is contrary to the public interest for a convicted person to remain an Australian citizen and that in my view was not shown by the Minister in this case.” (emphasis in original)
[23] Waraich v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4524.
The Tribunal will return to a discussion of and explanation of its understanding of the term “public interest” within the remit of the Act in due course.
It was actually not until 1996 that amendments were made to the previous Australian Citizenship Act1948 to provide to provide for the cancellation of citizenship where that citizenship had been granted as a result of fraud.
The Explanatory Memorandum to the Migration Legislation Amendment Bill (No.3) 1996 states:
“This amendment inserts an express ground for the deprivation of citizenship where the citizenship was obtained as a result of migration-related fraud.”[24]
[24] Migration Legislation Amendment Bill (no. 3) 1996, Explanatory Memorandum at para [94].
In his Second Reading speech, the Minister (Hon Philip Ruddock MP) explained the public policy rationale thus:
“But the government is equally determined that the value of Australian citizenship should not be undermined by allowing the grant of citizenship to stand where it has been granted as the result of fraud or deception. Yet the current provisions for deprivation of Australian citizenship in these circumstances are limited. There is currently no provision for depriving a person of Australian citizenship if it was obtained by fraud at the time of immigration. ……. Also, a person who committed fraud when applying for citizenship cannot be deprived of that citizenship if prosecution for the fraud is not commenced within ten years of its occurrence. The government considers that this is unacceptable. People should not be able to hide behind Australian citizenship which was obtained following fraud. To allow them to do so weakens the meaning and value of Australian citizenship. Therefore, …. the proposed amendments to the Australian Citizenship Act 1948 and the Migration Act 1958 will allow deprivation, without time limitation, of future grants of Australian citizenship obtained as a result of fraud, whether at the time of immigration or of application for citizenship.” [25]
[25] House of Representatives, Hansard, 16 October 1996 page 5589.
These provisions were carried over into the new Australian Citizenship Act 2007.
In December 2017 the Federal Parliament’s Joint Standing Committee on Migration produced its report No one teaches you to become an Australian in which it advocated (by majority) for major changes in the way in which visa cancellations should be determined.[26] Its recommendations were reflected in the terms of the proposed Migration Amendment (Strengthening the Character Test) Bill 2018. This Bill was introduced on 25 October 2018 in the House of Representatives but is still pending for debate.[27] However, despite the widespread nature of the Joint Committee inquiry, no recommendations were made in relation to cancellation of previously granted citizenship.
[26] Parliament of Australia, Joint Standing Committee on Migration: No one teaches you to become an Australian (December 2017) recommendations 15 and 16 at page [175].
[27] House of Representatives, Hansard, 25 October 2018 page 11109.
The Minister’s powers and responsibilities
The power of revocation is vested exclusively in the Minister and must be exercised by him or her in their own personal capacity.[28]
[28] Australian Citizenship Act 2007, section 34.
In depriving a person of citizenship, the onus of establishing that this course is the preferable one and in the public interest, lies upon the Minister. There must be clear proof and “mere suspicion … on which no finding of fact could properly be made must be put out of the decision maker’s mind.”[29]
[29] Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs [1993] 30 ALD 292 at [292].
Similarly, as stated in Briginshaw, given the seriousness of the consequences which flow from an adverse finding, that level of proof should be of the highest order, and that “inexact proofs, indefinite testimony, or indirect inferences”[30] are insufficient. The Tribunal, in the shoes of the original decision-maker needs to “feel an actual persuasion of (the) occurrence” of a material fact in order to accept it as proof.
[30] Briginshaw v Briginshaw [1938] 60 CLR 366 at [361]-[362].
Moreover, numerous decisions of this Tribunal have affirmed that any such decision must be based upon a clear weighing of the public interest in the revocation of citizenship against the hardship which would follow for the person and relevant others concerned.[31] Predating Waraich, in Taradel the Tribunal stated:
“It would be a mistake to elevate concerns over migration fraud to a 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.”[32]
[31] Ibid at [302]; Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [21]; Osorio v Minister for Immigration and Citizenship [2007] AATA 59 at [41]; WBU v Minister for Immigration and Citizenship [2007] AATA 1143 at [44].
[32] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [22].
The dual considerations – maintaining the integrity of the citizenship process and the considerations of adverse consequences where citizenship is revoked, were discussed by the Tribunal as far back as 1993 in Prasad:[33]
“(39)……. Together the two Acts[34] are designed to ensure, so far as is possible, that only persons of good character with an adequate knowledge of the responsibilities and privileges of Australian citizenship are granted citizenship. It is of paramount importance, therefore, that information relevant to the character of a person applying for citizenship which is provided to the respondent is true and given in a manner which is not likely to impede the proper assessment of that person's character.
(40) Not every representation or statement made for a purpose or in relation to the Act is of such paramount importance as information relevant to character. A person may, therefore, have been convicted of an offence against s 50 and so meet the criterion set by subpara (i) of s 21(1)(a) without that fact being of great significance in relation to the criterion set by subpara (b). However, where a person applying for citizenship deliberately sets out to deceive the respondent so as to impede his assessment of that person's character, that person is subverting, or at least attempting to subvert, the legislation. When account is taken of that, together with the applicant's lack of candour and honesty in the evidence which he was given in these proceedings, I am satisfied that it would be contrary to the public interest for him to continue to be an Australian citizen.
(41) The two criteria set by paras (a) and (b) of s 21(1) are, therefore, met. The question remains whether the discretion conferred on the minister by that subsection should have been exercised to deprive the applicant of his Australian citizenship. In the absence of any ministerial policy with regard to the exercise of the discretion, I have come to the conclusion that, as in the case of the exercise of the discretion to deport criminal offenders pursuant to s 55 of the Migration Act, the advantages to the Australian society of depriving the applicant of his citizenship have to be weighed against any disadvantages to that society and any disadvantages and hardships likely to be caused to the applicant or other persons as the result of doing so.”
[33] Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs [1993] 30 ALD 292 at [301]-[302].
[34] At that time, the Citizenship Act 1948 and the Migration Act 1958.
A MATTER OF IDENTITY
Amandeep Singh[35]
[35] Most of the details in this section are outlined in the Applicant’s Statement of Facts tendered to the Tribunal at the conclusion of its hearings and is marked as Tribunal exhibit A1.
The evidence clearly establishes that the Applicant first arrived in Australia in 1997 in the name of Amandeep Singh, using an Indian passport issued in that name. It was in that name that he applied to the Australian High Commission in New Delhi for a student visa which was granted on 16 September 1997. After being resident in Australia for some time, it was again, in this name, that he was granted an extension of his student visa on 13 January 2000.
The applicant continued to use this name when he was married to Belinda Nolan on 4 July 2000 and in this name he applied for a partner visa on 4 August 2000 sponsored by his wife. After this marriage (see below) broke down his wife withdrew her sponsorship of his partner visa application on 25 July 2002. This resulted in the formal refusal of that application on 2 June 2004 from which time he cased to have a valid visa to remain in Australia.
However, before that point was reached the Applicant was granted a bridging visa to allow him to return to India for family reasons. This visa was granted on 4 February 2003 and the Applicant left Australia on 6 February 2003. In his application for this visa the Applicant stated he would return to Australia on 6 May 2003 but he did not do so.
In all these applications to the Department and in all relevant documents, the Applicant stated that his date of birth was 25 October 1980.
Ramandeep Singh Ghumaan
Ms Nath (the Applicant’s second wife) gave evidence to the effect that the couple met in or around June 2002 in Australia. They decided to get married but Ms Nath wanted to get married in India and to align this wedding with family matters arising from the recent death of her uncle.
This wedding took place on 15 March 2003 in Patiala, India. Ms Nath says it took place in a Sikh Temple but was registered in the Office of the Registrar of Marriages (Tohsilar) in Patiala.
According to the Applicant’s Statement of Facts tendered to the Tribunal, on the occasion of this marriage, the Applicant’s name was listed as Ramandeep Singh Ghumaan.
The Tribunal notes that, again according to the Applicant’s Statement of Facts he advised the Department of Immigration and Border Protection that the reason he sought a bridging visa on 4 February 2003 was “to travel back to India to visit his sick grandmother and attend his sister’s wedding.” There is no indication that the purpose, or at the very least a purpose, of this trip was to attend his own wedding which had clearly been planned in advance.
At no stage, in either of his Statutory Declarations,[36] or in oral testimony from either the Applicant or Monika Ghumaan was any reason given for the Applicant’s return to India in 2003 other than to attend his own wedding.
[36] Section 37 Tribunal Documents at [156]-[160] dated 23/11/2017; at [248]-[249] dated 24/4/2018 and as attachment to Applicant’s Statement of Facts, Issues and Contentions dated 19/11/2018.
The extent to which this was a deliberate misleading of the Department is a matter which the Tribunal must keep in its mind. It is a matter of speculation as to whether a visa would have been granted had the latter reason – his own wedding – been declared rather than the compassionate and family reasons – the visa would have been granted. This is because at the time of making the visa application the Applicant had no proof that he was actually divorced from his first wife, and indeed, he was not.
The narrative provided by the Applicant thus makes it clear that the change of name affected by the Applicant must have taken place at some time between his arrival back in India (on or immediately after 6 February 2003) and his wedding (15 March 2003).
Less than a week after the wedding, on 21 March 2003, the Applicant was issued with an Indian passport under the name Ghumaan. There is no evidence before the Tribunal which establishes when the Applicant applied for this passport, nor the length of time it talks for passports to be issued in India. At best, this implies that a passport was issued within a six week period. Unless special arrangements were made for the issue of a passport in the name of Ghumaan between 15 March 2003 and 21 March 2003, it must again be assumed that the name change predated the wedding.
The Tribunal presumes that in this passport the Applicant’s date of birth is given as 3 March 1978 as this is the date that the Applicant has used on all further forms and application documents.
The issue of Indian passports is governed by the Passports Act 1967 (India) and the associated Passport Rules 1980. The latter provides, in Schedule III, that an application for an ordinary passport must be accompanied by documentary evidence of such matters as date of birth and use of previous names. This means that in order to obtain a new passport in the name of Ghumaan the Applicant must have submitted false documentation and made false declarations to the Indian authorities.
In Gjergji and Minister for Home Affairs[37] Deputy President Humphries remarked:
“(26) The use of a fraudulent passport was also said to go against a finding of good character, given that the Instructions suggest:
9.3.4 An applicant who is of good character
An applicant of good character would:...be truthful and not practice deception or fraud in their dealings with the Australian government.[37] Gjergji and Minister for Home Affairs (Citizenship) [2019] AATA 72 (30 January 2019)
The Deputy President also raised the question as to whether such behaviour itself constitutes an offence under section 21 of the Foreign Passports (Law Enforcement and Security) Act 2000, although no such issue was raised before either the Court or this Tribunal.
The Tribunal has addressed the general question of grants of citizenship to people whose identity is not clear – whether by reason of not being able to be established to a requisite degree of satisfaction or as a result of some form of identity fraud on the part of the applicant.
“… a Certificate of Australian citizenship is a legal document of considerable significance and the Tribunal should not countenance an outcome which could lead to such a certificate being issued in circumstances where …. the identity of the Applicant is far from clear.”[38]
[38] Re Beyan and Minister for Immigration and Border Protection [2015] AATA 256 at [38].
The way in which the Applicant’s change of identity was conceived and facilitated is unclear from the evidence. The Applicant himself states:
“When I went back to India in 2003 I had a valid Australian visa till the end of 2003. I could have legally come back to Australia which was my plan, I wanted to get married in India and come back to Australia and apply onshore spouse visa. But I was made to believe that I couldn’t come back because of recent divorce. I fell for the wrong advice and got desperate to come back and took some very wrong steps. In hindsight it was very wrong and immature of me to think that I had no other way of going back to Australia. I had no other reason to go for a new identity because as Amandeep I had no criminal record in Australia. And also after coming back to Australia on a new ID, I did not misuse my older ID ever.”[39]
[The Applicant did not, in fact, hold a visa valid until the end of 2003, only until 20 March 2003, but he still acted in the belief that his visa was valid for a longer period.]
[39] Section 37 Tribunal Documents at [156].
Monika Ghumaan attests:
“When we were planning to file his application following our marriage, we went to a migration agent in India to get advice. We told him that Amandeep recently divorced but that I wanted him back in Australia asap. Then he convinced us that there will be long delay if you used name as Amandeep. So he advised us to use new ID and do not mention it to immigration department.”[40]
[40] Applicant’s Tender Bundle at [243]-[244].
If the Applicant’s own Statement of Facts is to be taken as a statement of the truth, then this meeting with the migration agent must have taken place between 6/7 February 2003 and 15 March 2003 since the Applicant used the name Ghumaan in connection with his marriage and in association with his Indian passport application.
The Respondent, in questioning Monika Ghumaan, put it to her that the whole idea of creating a false identity for immigration purposes, was originally that of either the Applicant or herself and that the shifting of responsibility for suggesting the deceit to a migration agent was untrue. She clearly denied this to be the case.
APPLICATIONS IN THE NAME OF GHUMAAN
Partner Visa: Initial
There is then some confusing information put to the Tribunal relating to the next steps taken by the Applicant (as Ghumaan) relating to his partner visa application. The Applicant asserts that he applied for this visa on 25 March 2003 in the name of Ghumaan and that in doing so he made at least four false statements on the application form (Form 47SP) namely in relation to his previous Australian visa, his use of other names, his date of birth and his previous marital status.[41]
[41] Applicant’s Statement of Facts (Tribunal Document A1) at [21].
This application was sponsored by his wife (Monika) and a temporary visa was granted on the day of lodgment, 25 March 2003.
However the Applicant states that when he signed the application on 23 March 2003 he signed using the name “Ramandeep Singh”.[42] If this is true, it is to be taken that the Australian authorities failed to notice, or failed to act upon the evidence that the application was in one name and the signatory in another.
[42] Ibid at [23].
Further affidavits were tendered by both the Applicant and his wife on 31 March 2003 and the partner visa was granted on 29 July 2003. On 15 November 2003 the Applicant arrived in Australia using a passport and a partner visa (he asserts he used the temporary one for some reason[43]) both of which were in a false name.
[43] Ibid at [26].
Partner Visa: Subsequent
On 30 December 2004 the Applicant provided “Additional Personal Particulars” (Form 1221) related to the partner application in which he falsely stated his use of previous names, date of birth and place of birth.[44] Although the application was made in the name of Ghumaan, once again it was signed “Ramandeep Singh”.[45]
[44] Ibid at [27]. There is no evidence before the Tribunal as to the Applicant’s actual place of birth, but this Statement indicates that whatever he placed on the form was not correct. Whether an incorrect place of birth was also given on his Indian passport application or Indian marriage certificate is unknown.
[45] Ibid at [29].
On 22 February 2005, continuing with the process of partner visa application, the Applicant made another set of false statements on his “Personal particulars for character assessment” form (Form 80), on this occasion encompassing family details; previous addresses; previous visits to Australia and employment history.[46] Again the application was in the name of Ghumaan and the signature was “Ramandeep Singh”.[47]
[46] Ibid at [30].
[47] Ibid at [32].
A partner visa was granted on 16 April 2005 in the name of Ghumaan and from this the Applicant was able to secure permanent resident status.
Other applications
In March 2009 the Applicant sought to sponsor his father to migrate to Australia. On this occasion he answered eight questions with incorrect information, although this form was signed as “R Ghumaan”.[48]
[48] Ibid at [34] and [36].
On 12 May 2007 the Applicant lodged a Form 124 “Application for Australian Citizenship” in which he provided false answers in relation to his name, date of birth, place of birth, first arrival in Australia and parent’s names. This citizenship application form was signed “Ramandeep Singh”.[49]
[49] Ibid at [37] and [39].
On 14 September 2011 the Applicant lodged a further part of his citizenship papers, Form 119 “Application for evidence of Australian citizenship”. This contained false information related to name, date of birth, place of birth and arrival in Australia. It was signed “R Ghumaan”.[50]
[50] Ibid at [40] and [42].
DETECTION OF FALSIFICATIONS
It is not entirely apparent how the Department became alerted to the possibility of Mr Amandeep Singh and Mr Ramandeep Singh Ghumaan were one and the same, and perhaps for operational reasons it is better than such information is not made public. Regardless of that, something (perhaps the mismatch of application names and signatures) triggered investigations by the Department which undertook matches of both signatures and photographs related to both identities.[51] They confirmed that Singh and Ghumaan were one and the same person.
[51] Ibid at [43]-[44].
In her sentencing remarks Her Honour recorded “The false statements came to light as a result of forensic analysis within the department.”[52]
[52] Section 37 Tribunal Documents at [24].
THE FIRST MARRIAGE
In assessing both character and issues of public interest it is important that readiness to be honest in dealings with government and the community are relevant issues.
The Applicant contracted his first marriage to Belinda Nolan some time (unspecified) in 2000. He was 19 years of age at the time. Consultant psychologist Neil Ballardie writes:
“Ramandeep’s first relationship was with an Australian born female when he was 19 years of age. He said he fell in love with her and they married after four months. When they applied for immigration his father was very upset about Ramandeep marrying. He blamed Ramandeep’s wife for influencing him to withdraw from study and told him he was weak and should stand up for himself. This marriage lasted until 2002. His ex wife withdrew immigration support in July 2002 and Ramandeep returned to India.”[53]
[53] Section 37 Tribunal Documents at [237].
The Applicant gave oral testimony to this effect and stated clearly that he and Ms Nolan had cohabited during their marriage.
This is denied by Ms Nolan who, apart from withdrawing her sponsorship contacted the (now) Department of Home Affairs on 22 July 2002, according to a departmental file note:
“…rang and admitted her marriage to Amandeep SINGH was contrived. She agreed to forward a letter withdrawing her support for Mr Singh’s application.”[54]
[54] Respondent’s Tender Bundle (Tribunal Document R3) at [4].
A further file note (dated 13 August 2002) states:
“Letter requested from Belinda NOLAN received. Ms Nolan stated in the letter she and Amandeep Singh never had been in a relationship or lived together.”[55]
[55] Ibid at [5].
It is not possible for the Tribunal to determine whether the version of this relationship given by the Applicant or by Ms Nolan is the preferred one, in the absence of any other corroborative evidence. All that can be said with certainty is that the marriage took place and that Ms Nolan subsequently withdrew her offer of sponsorship. It is unclear exactly when the Applicant and Ms Nolan separated, although it is suggested that it was in May 2002 although the withdrawal of sponsorship is clearly recorded on 25 July 2002.
The Tribunal was unimpressed with the Applicant’s testimony to the effect that, despite two subsequent marriages and despite the obvious hostility of Ms Nolan, the Applicant, at no previous stage, ever sought to obtain documentary evidence establishing both the fact of his divorce and any date on which that may have occurred.
At the request of the Tribunal a copy of the Divorce Certificate was provided after the conclusion of the hearings. It shows that the dissolution was granted on 10 February 2003 and the decree became absolute on 11 March 2003. The Applicant’s second marriage took place four days later.
By 10 February 2003 the Applicant had already left Australia and was in India. It is not known if or how he received any communication to say that his divorce had been granted and that, after 11 March 2003 he was free to remarry. Again, it is not known whether the date of the marriage of Monika and the Applicant was set in advance, in which case it must have been on the presumption that the divorce would be in place by that date. Nor is it known whether or not the Applicant was in formal possession of the knowledge that his decree became absolute on 11 March 2003.
Because the Divorce Certificate was not before the Tribunal at the time of the hearing it was not possible for these details to be established or for any witness to be interrogated in the matter.
What it does leave open to speculation – and it can be no more than speculation – is the suggestion that the reason that the migration agent was consulted and that his “advice” was taken about the problems associated with the Applicant’s divorce was in fact because the Applicant did not know, for certain, at the time of his second marriage that the divorce had been granted in the first.
If this was the case, then it makes more sense when the Applicant states his belief that the matter of his “divorce” could jeopardise his return to Australia when, at the same time, he believed he had a continuing valid visa and with no criminal record, had no need to otherwise conceal or change his identity.
These circumstances cause the Tribunal to have a degree of concern about exactly who it was that initiated the discussion about needing to change identities because of the perceived problem with the divorce. Was the suggestion/initiative that of the migration agent as claimed by the Applicant and Monika Ghumaan or that of the either of them themselves, as suggested by the Respondent?
No finding can be made safely either way.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant initially sought to call oral evidence from up to 19 potential witnesses including the Applicant. The Respondent indicated that it wished to cross-examine only the Applicant and his second wife (Monika Ghumaan). At the direction of the Tribunal, and over the objections of the Applicant’s counsel, the list of witnesses giving oral testimony was reduced to seven. These were the Applicant, his second wife, his current wife and four others chosen by the Applicant and his counsel.
Mr Amandeep Singh (Ramandeep Ghumaan)
The Applicant admitted (indeed at no stage has he sought to deny) that he changed details of his name and date of birth in order to obtain a false passport to facilitate his return to Australia in 2003. The reasons why he did this have been canvassed and discussed above. He stated that his choice of the name “Ghumaan” was because this was a family name and hence one of familiarity. He told the Tribunal that at the time of his marriage in India he had no positive proof of his divorce from Ms Nolan but that he sincerely believed that this process had been completed on the basis of papers which he had signed, but beyond that he had no clear recollection of relevant matters.
He also gave testimony to the effect that he regarded his first marriage to Belinda Nolan as valid and genuine, that they did live together and that he was unaware until these proceedings of any claims on her part that the marriage was contrived.
He affirmed that the purpose of is return trip to India in 2003 was in order to get married and made no mention of any other purpose (see above). He stated that he believed that, at the time, he had a visa which would have allowed his return to Australia at any time up until the end of that year.
He gave the Tribunal details of the work which he had undertaken during his period of court-imposed Community Service and how he had continued to work with organisations such as the Salvation Army after that. He outlined his work with and commitment to the local Sikh community and in particular those activities centered around the Sikh Temple.
He admitted that he knew that the falsification of documents was wrong (as he also told Mr Ballardie[56]) but that his desire to return to Australia with his second wife, which he believed may have been delayed as a result of his divorce, overbore all other considerations.
[56] Section 37 Tribunal Documents at [239].
The Tribunal formed a positive opinion of the Applicant. There appears little doubt that he is a good father, a good friend, a hard-working and dedicated member of both the Sikh and wider community[57] and that he contributes in a positive fashion to family, friends and community. The Tribunal also accepts that he is genuinely remorseful for his initial offence which he ascribes to both concern about his ability to return to Australia and his relative immaturity at the time.
[57] See References from Kevin Connolly MP, State Member for Riverstone and Councillor Jess Diaz, Blacktown Council, Section 37 Tribunal Documents at [189] and [190] respectively.
Mrs Gagandeep Ghumaan
Mrs Ghumaan is the Applicant’s current (third) wife. She is a Registered Nurse (RN). She gave evidence about their current family situation and acknowledged that she was aware of general details of the Applicant’s first marriage, however she had not asked for any specific details about it, nor had any been forthcoming.
She stated that she was aware that the Applicant had falsified details of his identity in order to return to Australia after his second marriage for the reasons he had given the Tribunal.
She indicated that the couples were married in January 2014 and that about one month later they had received correspondence from the Department raising issues related to her husband’s citizenship. She said that this had caused her great distress and that, as a result, she had become depressed and required treatment which was provided by Mr Philip Wolfers (Principal Psychologist at Advancement Centre Pty Ltd).[58]
[58] See Mr Wolfers’ report: Applicant’s Submissions dated 9 October 2018.
She evidenced little knowledge about the Applicant’s past history prior to their marriage. She told the Tribunal that she has traveled to India with their two small children to meet the children’s grandparents.
Mrs Monika Ghumaan
Monika Ghumaan is the Applicant’s second wife. She is an Australian born citizen. She told the Tribunal that they met in June 2002 and that she was aware of the Applicant’s first marriage and that “he was going to get divorced.” She went on state that the couple then planned to marry and that it was at her request that this marriage take place in India to coincide with her required travel to India to attend funeral rites for her recently deceased uncle.
She said that the marriage went ahead, in a Sikh Temple in March 2003 although she admitted she had never seen any divorce papers from the Applicant’s first marriage but was satisfied that a divorce had occurred.
She told the Tribunal that the couple sought advice from a local migration agent who gave them the advice referred to above, to the effect that the Applicant’s recent divorce could substantially delay his return to Australia. She affirmed that it was this agent who suggested the acquisition of a false identity using the name Ghumaan which she described as a “cast name”. In her testimony she admitted that all parties – the Applicant, the migration agent and herself were aware that the Applicant was, at the time, in possession of a valid visa permitting his return to Australia. As noted, although this was true up until only 20 March 2003, the Applicant was under the impression that it extended to the end of that year. Her evidence was to the effect that this meeting with the migration agent took place some time in February 2003 and that there was only the one such meeting.
Ms Nina Kaur
Ms Nina Kaur is a Registered Tax Agent and CPA. She gave testimony to the effect that the Applicant was a person who took care to keep his financial affairs in order and to pay his taxes on time and in full. Her written submission to the Tribunal[59] indicated that she was aware of the Applicant’s previous conviction but nonetheless regarded him as a person of probity and integrity.
[59] Applicant’s Tender Bundle at [235].
Mr Gagandeep Singh
Mr Gagandeep Singh is the President of the Sikh community service/charity Simran House Inc. He stated that he had always found the Applicant to be a person of honesty and that he was, together with his family, an active member of the Sikh Temple and a contributor to that community. In cross-examination it emerged that Mr Singh was not aware of the Applicant’s previous marriages (other than he believed his current marriage to be the Applicant’s second) and that while he was aware of some details of the court case he had no knowledge of the reasons behind the committing of the original offence. He noted that the Applicant was deeply remorseful for his past actions and “has been repeatedly asking for forgiveness from God during his prayer sessions.”[60]
[60] Ibid at [239].
Mr Sunit Kholsa
Mr Sunit Kholsa is a close personal friend of the Applicant, for some 17 years, and has business connections with the Applicant’s cousin. Although a Hindu, he attends and participates in the activities of the Sikh Temple where he says, the Applicant is a major figure and community worker.[61] He describes the Applicant’s offending as a “silly mistake” for which he is now paying but deeply regretful. Under cross-examination he admitted that he was unaware of the exact circumstances of the Applicant’s name change and had little or no detailed knowledge of the Applicant’s past marital history.
[61] Section 37 Tribunal Documents at [167]-[168].
Mr Kanwar Jagdeep Singh
Mr Kanwar Jagdeep Singh has known the Applicant for some 14 years. He regards him as something of a “godfather” to his own family and says that the Applicant has provided him with crucial emotional support at critical times in his life, as well as loaning him money.[62] He evidenced some greater knowledge of the details of the Applicant’s offence being aware of the advice of the migration agent and the basis of the Applicant’s decision to assume a false identity. He reports that the Applicant has told him that “I still don’t know why I did it” in relation to his behaviour. It appears that he was in court to support the Applicant during his trial and he further states that he was aware of the Applicant’s first marriage and that they cohabited as a couple although “nothing worked out well when they did.”
[62] Ibid at [170]-[171].
The Tribunal was provided with a large number of written submissions and references on behalf of the Applicant. Apart from the statements of those who appeared as witnesses there are statements from employers, leaders of the Sikh Association and Temple, financial advisors, and a medical practitioner together with letters from several charities to which the Applicant has been a regular donor.[63] References from local Members of Parliament and Council have already been noted.
[63] Section 37 Tribunal Documents numbered [198]-[205] and [254].
The Respondent urges that the Tribunal should pay minimal regard to these on the basis that they are somewhat formulaic; they fail to evidence detailed knowledge of the details and gravity of the original offence or in fact make no reference to it at all.[64]
[64] Respondent’s Statement of Facts, Issues and Contentions at [23].
The Tribunal is aware of the caution issued in the Citizenship Policy document of 1 June 2016 which provides guidance for decision-makers when deciding on what weight to give references in their deliberations. It notes that where references do not acknowledge the offence or incident crucial in decision-making very little weight should be accorded.[65]
[65] Citizenship Policy at [155].
THE IMMEDIATE CONSEQUENCES OF CITIZENSHIP CANCELLATION
Section 35 of the Migration Act creates a class of visas which are called “ex-citizen” visas. Section 35(1) provides:
(1) There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as ex-citizen visas.
Section 35(3) goes on to provide:
(3) A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex-citizen visa when that citizenship ceases.
This provision applies to Mr Ghumaan. On cancellation of his citizenship he automatically became the holder of an ex-citizen visa. This means that he may remain in Australia on a permanent basis but, should he leave Australia he has no automatic right of re-entry as do citizens.[66] To re-enter, a Return Resident Visa would need to be held.
[66] It should be noted that this right of re-entry is not an absolute right, even for citizens. See Kim Rubenstein: Australian Citizenship Law in Context (Law Book Co., 2nd edition, 2017) page 370-1; Sangeetha Pillai: “The Rights and Responsibilities of Australia Citizenship: A Legislative Analaysis”, Melbourne University Law Review, [2014] 37(736) page 761 fn 131.
Five Year Return Residents Visa may be granted according to criteria which are set out in Schedule 2 of the Migration Regulations 1994. The relevant section 155.212 provides:
Criteria to be satisfied at time of application
(1) The applicant meets the requirements of subclause (2), (3), (3A) or (4).
(2) The applicant meets the requirements of this subclause if the applicant was lawfully present in Australia for a period of, or periods that total, not less than 2 years in the period of 5 years immediately before the application for the visa and, during that time, the applicant:
(a) was:
(i) the holder of a permanent visa or a permanent entry permit; or
(ii) an Australian citizen; and
(b) was not the holder of:
(i) a temporary visa (other than a Subclass 601 (Electronic Travel Authority) visa, a Subclass 773 Border visa, Subclass 956 Electronic Travel Authority (Business Entrant--Long Validity) visa, Subclass 976 Electronic Travel Authority (Visitor) visa or Subclass 977 Electronic Travel Authority (Business Entrant--Short Validity) visa held concurrently with the permanent visa or the permanent entry permit); or
(ii) a bridging visa.
THE FURTHER CONSEQUENCES OF CITIZENSHIP REVOCATION
At the heart of the Applicant’s appeal is his assertion that his future inability to leave Australia to travel to India and then return imposes upon him a singular degree of hardship.
In particular the Applicant expresses a concern that he will not be able to take his wife and young children back to India to meet their grandparents, the Tribunal noting that they have already made one such trip.
The Applicant has also pleaded that cancellation of his citizenship would lead to possible embarrassment for his children should his deceptions become known.[67] This may well be true, but they are already compromised to the extent that their birth certificates are compromised documents because they record a male parent whose identity on this official record is a false identity.[68]
[67] Applicant’s Statutory Declaration, Section 37 Tribunal Documents at [248] paragraph [4].
[68] Section 37 T Documents at [50] and [51].
It is not however, the role of the Tribunal to shield this, or any Applicant, from the embarrassment or consequences of their own deliberate and conscious decisions, no matter how foolish or how much they might be regretted. This is the working out of the “tangled web”[69] originating in practiced deception which has taken place over a prolonged period of time.
[69] “Oh what a tangled web we weave / When first we practice to deceive.” Walter Scott, Marmion: A Tale of Flodden Field (1808) Canto VI Stanza XVII.
The suggestion that cancellation of citizenship will deprive the Applicant of any chance to remain with his children and play a full parental role for them in Australia is not sustainable as this is not the consequence of holding an ex-citizen visa.
The Applicant may well suffer consequences as a result of a change in his citizenship/visa status, but the degree to which this is the case must also be considered.
In Eidson[70] the Tribunal stated:
In light of the above facts, I consider that the lengthy and serious nature of the Applicant’s migration fraud, as well as the potentially grave implications of identity fraud to the Australian community mean there is a great interest in deterring others from committing similar offences, and in maintaining the integrity of the immigration system more generally. Conversely, while there will be some impact on the Applicant, I do not consider its detrimental impact to be of any particularly great magnitude. Yes, she would lose her citizenship and her right to return to Australia should she leave. However, that is all she would lose. As far as is reasonable for me to determine, the Applicant will be allowed to maintain her residency, and continue running her business and participating in the Australian community. This balancing exercise therefore leads me to the conclusion that the discretion to revoke the Applicant’s citizenship should be applied.
[70] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354 at [62].
In Taradel the Tribunal recognised explicitly the need “to look at any prejudice to the applicant and others arising from the cancellation of his citizenship”[71] when the matter was under review. It concluded, in that instance that:
“Assuming the applicant is not removed from Australia, it is difficult to identify real detriment should his citizenship be revoked. His life would not change a great deal, and he would presumably be entitled to apply for citizenship again in due course. It is true he may not be able to travel overseas and he will experience stress as the department considers whether or not he should be removed on character grounds.”[72]
[71] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [23].
[72] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [28].
A similar balance of considerations was discussed in Prasad.[73] There, the Tribunal concluded that such evidence provided a significant part of the rationale for establishing a public interest in denying the grant of citizenship in issue.
[73] Re Prasad and Minister Assisting Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292 at [39-40].
Before turning to consideration of public interest matters, one further tangential issue should be addressed.
DUAL NATIONALITY AND STATELESSNESS
The question of what nationality the Applicant might hold were his Australian citizenship to be revoked is unclear.
In the first instance there remains the question of whether the passport issued to Amandeep Singh on which he entered Australia initially remains valid. This is unknown, although it is suggested that this passport was surrendered at the time of the original grant of Australia citizenship.
Secondly while acquisition of Australian citizenship may cause the loss of Indian citizenship under the Indian Constitution, it appears that the Applicant may be eligible for a grant of Overseas Citizenship of India.[74] Again this is not clear.
[74] Section 37 Tribunal Documents at [154]-[155].
This matter arises in the context of submissions as to whether or not revocation of the Applicant’s citizenship would render him stateless.[75]
[75] Applicant’s Statement of Facts, Issues and Contentions at [19]; Respondent’s Statement of Facts, Issues and Contentions at [28]-[31].
Section 34(3) of the Act provides that the Minister may not revoke citizenship in a way which renders an individual stateless, but only on the basis of that revocation having itself been based upon the commission of a serious offence as defined in sections 34 (2)(b)(ii) and section 34(5) of the Act. Since this is not the basis upon which the Minister has made his decision, the section 34(3) prohibition does not apply in this instance.
The acceptance that citizenship may be withdrawn if originally granted on the basis of fraud or misrepresentation was considered by the European Court of Justice in the case of Rottman. There the Court held:
51 A decision withdrawing naturalisation because of deception corresponds to a reason relating to the public interest. In this regard, it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality.
52 That conclusion relating to the legitimacy, in principle, of a decision withdrawing naturalisation adopted in circumstances such as those in the main proceedings is borne out by the relevant provisions of the Convention on the reduction of statelessness. Article 8(2) thereof provides that a person may be deprived of the nationality of a Contracting State if he has acquired that nationality by means of misrepresentation or by any other act of fraud. Likewise, Article 7(1) and (3) of the European Convention on nationality does not prohibit a State Party from depriving a person of his nationality, even if he thus becomes stateless, when that nationality was acquired by means of fraudulent conduct, false information or concealment of any relevant fact attributable to that person.
53 That conclusion is, moreover, in keeping with the general principle of international law that no one is arbitrarily to be deprived of his nationality, that principle being reproduced in Article 15(2) of the Universal Declaration of Human Rights and in Article 4(c) of the European Convention on nationality. When a State deprives a person of his nationality because of his acts of deception, legally established, that deprivation cannot be considered to be an arbitrary act.[76]
[76] Janko Rottmann v Freistaat Bayern (European Court of Justice, C- 135/08, 2 March 2010).
A similar approach is evident in Article 8(2)(b) of the United Nations Convention on the Reduction of Statelessness[77]. It provides:
Article 8
1. A Contracting State shall not deprive a person of his nationality if such deprivation would render him stateless.
2. Notwithstanding the provisions of paragraph 1 of this article, a person may be deprived of the nationality of a Contracting State:
………
(b) Where the nationality has been obtained by misrepresentation or fraud.
[77] Convention on the Reduction of Statelessness, opened for signature on 30 August 1961, 14458 UNTS 989 (entered into force 13 December 1975) art 8.
THE PUBLIC INTEREST
The basis upon which the Minister made his revocation decision was that “it would be contrary to the public interest” for the Applicant to be allowed to remain an Australian citizen.[78]
[78] Section 37 Tribunal Documents at [7].
This of course, requires the Tribunal to consider the meaning of the “public interest’ within the framework of the Citizenship Act sections 34(2)(b)(i) and 34(2)(b)(iii), as set out above. This Tribunal set out its view of the definition of public interest in its decision in Fang and it is appropriate that those considerations should now, in a slightly modified form, be repeated here.
A “public interest” test is imposed by section 34(2)(c) of the Act (see above for its legislative origins) in that it requires that there be a demonstrable public interest in any individual’s citizenship being revoked or cancelled. Thereafter it requires the Minister to determine whether or not to exercise his/her personal discretion to give greater weight to the hardship caused to an individual (and those associated with him/her) than to the public interest. The process is very distinctly a two-step process.
As the Federal Court made clear in TRHL[79] although the term “public interest” is not defined in the legislation it should be understood in the following terms:
“As the appellant correctly noted the use of the expression ''public interest'' in a statutory provision 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: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [42]. The whole of the text must be considered when construing it: Alcan (NT) v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 per Hayne, Heydon, Crennan and Kiefel JJ at [47]”
[79] TRHL v Minister for Immigration and Border Protection [2016] FCA 376 at [29] per Gilmour J.
The term “public interest” is a notoriously slippery one and it means different things in different contexts.
As Lord Hailsham said in 1977, “The categories of public interest are not closed”,[80] and as the High Court discussed at length in Sankey v Whitlam and Others[81] this concept evolves over time and changes with differing material facts and circumstances. It is a term “of wide meaning and not readily delimited by precise boundaries.”[82]
[80] D v National Society for the Protection of Children [1977] UKHL 1 at 218-9.
[81] Sankey v Whitlam and Others [1978] HCA 43.
[82] Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health and Another (1995) 56 FCR 50 per Lockhart J at 59.
Similarly, in a case dealing with different legislation, but which is nonetheless analogous, the High Court stated [83]:
“….. the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission, per Dixon J. at p 505.”
[83] O’Sullivan v Farrer and Another [1989] 168 CLR 210 at [216].
The Tribunal will however, confine its consideration of the issue to trying to understand what the term “pubic interest” means within the context of Australia’s immigration and citizenship legislation and policies.
It is not helped by the fact that, as is often the case with statutes, there is no attempt in either the Migration Act or the Australian Citizenship Act to define the term.
The Tribunal therefore starts from the premise that there can be no greater public interest than in securing the territorial integrity of the nation.
This concept goes as least as far back as Cicero’s dictum “Salus populi supreme lex esto” (the safety of the people is the supreme law).[84] It is repeated in John Locke’s 1690 seminal work, The Second Treatise on Government as a fundamental principle of responsible and democratic government[85] and was enunciated with great clarity by Alfred Deakin, as the Prime Minister in 1907 when he remarked that: “an obligation is cast upon us to protect the territory with which we have been intrusted.”[86]
[84] De Legibus Book III part III sub VIII (Loeb Classics p.467).
[85] John Locke: An Essay Concerning the True Original, Extent and End of Civil Government, Chapter XIII section 158 (John Dent, London, 1962).
[86] Alfred Deakin, ‘Defence Policy’, Commonwealth Parliamentary Debates (Hansard), Vol XLII, 13 December 1907, 7508.
Such territorial integrity is of course undermined if a nation is not able to determine who enters the country and passes across its borders.
This in turn requires that those, who are not citizens and who are seeking to become so, must be absolutely truthful as to who they are and absolutely truthful about their identity. Truthfulness in the completion of government documents, such as passport applications, passenger arrival cards, applications for visas or citizenship, licences or identity documents is an absolute requirement – applicable indeed, equally to citizens and non-citizens alike.
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. To lie consistently, as Mr. Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr. Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.[87]
[87] 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.[88]
[88] Mohammed v Minister for Immigration and Border Protection [2018] AATA 687 at [39].
In Nguyen[89] I came to a conclusion, affirming a denial of citizenship, in the following terms:
(82) Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.[90]
(83) Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
(84) Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others. Even persons who are not able to manage well in the English language can do this without resort to placing themselves in the hands of deceitful third parties.
[89] Nguyen v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082.
[90] See Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
In Taradel, the Tribunal noted:
“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.”[91]
[91] [91] Re Harry Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [23].
An attack on the fundamental integrity of the immigration system is in effect, an attack on the interests of all Australians.
“For the reasons enumerated earlier, the Applicant’s conduct has harmed the interests and capacity of government to properly operate the immigration system. Thus, indirectly, her conduct has harmed the Australian community that effectively funds the operation of that system and has every right to refuse to tolerate any conduct compromising an organ of its government.”[92]
[92] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354 at [38].
The Tribunal does not think that further elaboration of this point needs to be made, but it does draw attention to further remarks in Eidson which are particularly apposite. This case, dealing with a citizenship revocation, has many parallels with Mr Ghumaan’s. In that instance, the applicant entered Australia under a false identity (as to both name and date of birth); did so with the active encouragement and participation of others (her parents) and while in Australia obtained licenses based on her false immigration identification. It is presumed that Mr Ghumaan has his Australian drivers’ licence in that name.
In affirming the revocation, the Senior Member wrote:
To my mind, (1) matters of dishonesty in relation to a person’s identity, and (2) the deliberate perpetuation and deployment of that conduct in dealings with government entities are, indeed, very serious. They are serious for three reasons.
(a)The conduct unnecessarily imperils and frustrates the integrity of the immigration system and, in turn, lowers levels of public confidence in that system. For reasons I will expand on below, this has become a serious consideration for governments everywhere in the context of the dynamic and dangerous state of the global geo-political climate;
(b)Identity theft and derivative fraudulent conduct costs the community — in terms of total direct and indirect costs to prevent it — something in the order of $2.6 billion per annum. While I accept that perhaps the majority of duly detected identity fraud relates to unlawful attempts by people to induce payment of government benefits to a greater extent than they would otherwise be entitled, I nevertheless cannot discount the seriousness of this Applicant’s conduct. There is no question that her conduct in not disclosing her true identity necessarily gave rise to a deficit in the information paradigm upon which the Department relied. She squarely placed the burden of detecting, proving and actioning the consequences of that deficit on the Department. The cost of that administrative burden was borne by the public;
(c)As touched upon above, the global geo-political situation has radically altered since the turn of the new millennium. It is not pessimistic to imagine and be convinced of an inexorable worsening of this situation. Governments are now charged with a heightened responsibility to protect the citizens whose safety they have undertaken to protect. Like it or not, we live in an age where governments’ surveillance of their populations will intensify as a means of pre-empting and, ultimately, circumventing heinous and catastrophic attacks. Foremost in this endeavour is the capacity of government to properly identify those who reside within, or temporarily visit, its sovereign territory. Any fraudulent conduct that deliberately results in the frustration of that objective and thus in a consequential deficit in the government’s essential field of knowledge for this purpose, is undoubtedly very serious.[93]
[93] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354 at [34].
In Director of Public Prosecutions v Smith, the Court thought public interest could be comprehended by an understanding of the conduct complained of by the Respondent and an assessment of how (if at all) that conduct impacted upon the capacity of the government to adequately provide for the welfare of its citizens. The Court said “public interest”
“…is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the well-being of its members.”[94]
[94] Director of Public Prosecutions v Smith [1991] 1 VR 63 at [75].
Tamberlin J in McKinnon v Secretary, Department of Treasury contemplated a multi-faceted approach to the concept and an assessment of the extent to which the offending conduct can be related to all or some of those relevant facets:
“The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where the public interest resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that “the public interest” can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable.”[95]
[95] McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 at [12].
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.[96]
[96]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. [97]
….
[97] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at [95].
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.[98]
[98] Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
Relevantly, in this case the court has also made clear that:
“When criminal offences have been committed by an applicant they will obviously be taken into account. The extent to which the existence of criminal conduct will weigh in the scales against a finding of good character will depend upon many things including the seriousness of the crime, the length of time since its commission and the degree of rehabilitation of the offender.”[99]
[99] Kakar and Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14].
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[100]
[100] 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.” [101]
[101] Ibid page 145.
Further, it makes clear:
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.”[102]
[102] Ibid at page147.
As noted above, the Applicant has supplied a number of references as to the question of his being of good character. They come from a variety of sources. A number of them demonstrate at least some knowledge of the Applicant’s breach of Australian immigration laws and to a limited extent something of his marital history. The Tribunal acknowledges these references and accepts that they attest to the Applicant’s current position in the community. The Tribunal, of course, must consider such matters as they appear before it at the time of its own decision making.[103]
[103] Shi and Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
CONSIDERATIONS
Fundamentally the Tribunal is faced with a stark choice between the Scylla and Charybdis of two findings:
(1) As of the date of its hearings, the Tribunal comes to the conclusion that the Applicant is a person of good character, is a caring parent, a good friend, a respected employee, a conscientious taxpayer, a significant contributor to both the Sikh and the wider Australian community, has no criminal or other convictions (apart from his migration/citizenship offences), is most unlikely to commit similar or further offences, and would generally meet all the tests of being a person of “good character”.
(2) The Applicant arrived in Australia under a false identity and has since been living under that false identity. That identity was deliberately and consciously created for the purpose of misleading the Australian authorities to grant him a visa.
The (relatively) simple question for the Tribunal is, which of these two findings should be given greater weight in its determination?
Were the matter to be no more than finding whether or not the Applicant is a person of “good character” the Tribunal would have no difficulty in finding that he is. However, that is not the question which needs to be resolved. It is not the central issue.
To overturn the decision of the Minister, it is necessary to address as the central issue, the basis upon which the Minister made his decision, namely the public interest.
Stated simply, does the Tribunal concur with the Minister’s finding that it is contrary to the public interest for the Applicant to be allowed to retain his Australian citizenship?
The Minister had to make his decision in a two-step process. First, finding that the fraud offences had been committed and then considering whether that finding provided the basis for determining that it was not in the public interest to allow the Applicant to retain that citizenship so obtained.
The fact of the fraud is clearly established – res ipsa loquitur.
What is more, not only were fraudulent activities committed over a prolonged period of time (2003-2011), there is no indication that they might not have continued indefinitely were it not for the forensic investigation which uncovered them. There is no reason to believe that the Applicant would sought to have abandoned such further activity on his own initiative.
The authorities are not at one on this question. Clearly in cases such as Eidson, Prasad and Taradel it was found to be in the public interest for the citizenship cancellation to be upheld on public interest grounds. On the other hand in Waraich a contrary position was arrived at. In making decisions on this question in my own determinations in Fang and Nguyen (both of which involved issues of false identity) I upheld the Ministerial cancellation on that ground.
The “calculus” (to borrow a Federal Court term[104]) before the Tribunal is to assign weight to the two salient findings stated above and to look at the detriment which might accrue to either party. Although the interests of an individual (or entity) and the public interest are not one and the same there is nevertheless, value in understanding individual interests within the context of the overall public interest which may in itself be an amalgamation of many individual interests.
[104] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
There are genuine disadvantages for the Applicant: he will not be able to travel abroad with his family without obtaining a specific visa to return; he will not be able to vote in elections, nor perhaps retain his membership of organisations[105] and he will suffer the undoubted embarrassment of it becoming known to various people (including members of his family in Australia and India) that he has lost his citizenship and its associated rights. He will not however, be prevented from leading a normal family, social, commercial, economic or community life in Australia and in due course he may make a further application for citizenship which would be assessed on its merits, at that time.
[105] Such as the Liberal Party where citizenship, or to be more precisely, actually electoral enrolment which requires citizenship, is a requirement for membership.
The disadvantages for the Respondent are that it will be seen that there are only limited consequences attendant upon people obtaining Australian citizenship – a valuable and prized status and a “privilege not bestowed lightly” [106] – by fraud. The strictures about how both good character and citizenship eligibility are made dependent upon honest, complete and untainted dealing with government and immigration authorities will be compromised or diminished. A precedent will be set which suggests that initial fraud may be whitewashed by subsequent good behaviour and passage of time, in any set of particular circumstances. The deterrence of there being significant consequences for significant malfeasance will be reduced. An attack upon the integrity of the immigration and citizenship processes will be seen to have succeeded.
[106] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8] per Deputy President Breen.
It is the Tribunal’s opinion that the disadvantages to the Respondent significantly outweigh those to the Applicant. Appreciating that there is a meaningful difference between what is “in” the public interest and what is “contrary to” the public interest, the Tribunal agrees that it is contrary to the public interest to allow the Applicant to remain the holder of Australian citizenship.
DECISION
The decision under review is affirmed.
I certify that the preceding 172 (one hundred and seventy -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...............................[sgd].........................................
Associate
Dated: 20 February 2019
Date(s) of hearing: 5 February 2019 and 8 February 2019 Date final submissions received: 11 February 2019 Counsel for the Applicant: Mr David Goodwin Solicitors for the Applicant: Dr Etienne De Villiers Hugo, Teleo Immigration Specialists Counsel for the Respondent: Mr Dominic Delany, Australian Government Solicitor Solicitors for the Respondent: Ms Hervee Dejean, Australian Government Solicitor
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