Haidari and Minister for Immigration and Border Protection
[2016] AATA 513
•21 July 2016
Haidari and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 513 (21 July 2016)
Division
GENERAL DIVISION
File Number
2015/2794
Re
Jalal Haidari
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Date 21 July 2016 Place Adelaide The Tribunal:
(a)pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), sets aside the decision under review; and
(b)remits the matter to the decision-maker for reconsideration in accordance with a direction from the Tribunal pursuant to s 43(1)(c)(ii) of the AAT Act that the applicant is a person of good character for the purposes of paragraph 25(2)(b)(iii) of the Australian Citizenship Act 2007.
......................[Sgd]..................................................
Senior Member R W Dunne
CATCHWORDS
CITIZENSHIP – cancellation of approval for Australian citizenship by conferral – whether the applicant is not of good character – credibility – whether the application for citizenship made by the applicant should be approved – decision under review set aside and remitted.
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21, 24 and 25
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372; [2011] AATA 304
Re Chen and Minister for Immigration and Citizenship [2007] AATA 1815Re GJRL and Minister for Immigration and Border Protection (2015) 150 ALD 106; [2015] AATA 76
SECONDARY MATERIALS
Australian Citizenship Instructions (Cth) issued 1 July 2014.
Citizenship Policy (Cth) issued 1 June 2016
REASONS FOR DECISION
Senior Member R W Dunne
21 July 16
INTRODUCTION
Jalal Haidari (“applicant”) is a citizen of Afghanistan. He arrived in Australia in 2010 as the holder of a Protection (subclass 866) visa.
On 1 June 2014, the applicant lodged an application for Australian citizenship by conferral. The application was approved on 9 January 2015. However, on 6 February 2015 a notice of intention to cancel his citizenship approval (“Notice”) was sent to the applicant because the case officer thought he may no longer meet the eligibility criteria under the Australian Citizenship Act 2007 (Cth) (“Act”).
The case officer subsequently decided to cancel the approval of Australian citizenship by conferral for the applicant under s 25(2)(b)(iii) of the Act, which relates to his good character.
The applicant has applied to this Tribunal for review of the delegate’s decision.
At the hearing, the applicant was represented by Ms J Cox (from the National Pro Bono Project). Ms C Stokes (from the office of the Australian Government Solicitor) appeared on behalf of the respondent Minister. I received into evidence the T Documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
[1] Exhibit R1.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal is whether the approval for Australian citizenship given to the applicant may be cancelled if, at the time the Minister proposes to cancel the approval, the applicant is not of good character.
LEGISLATIVE AND POLICY BACKGROUND
Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian citizen. In the decision record dated 5 June 2015 forwarded to the applicant by his case officer, it was stated that his application for conferral of Australian citizenship was approved under s 21(2) of the Act. Section 21(2) relevantly reads:
“General eligibility
(2)A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(b)is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d)understands the nature of an application under subsection (1); and
(e)possesses a basic knowledge of the English language; and
(f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h)is of good character at the time of the Minister's decision on the application.
….”
Section 24 of the Act provides, in part:
“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.
(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).
….”
Section 25 of the Act provides, in part:
“25 Minister may cancel approval
(1) The Minister may, by writing, cancel an approval given to a person under section 24 if:
(a)the person has not become an Australian citizen under section 28; and
(b)either of the following 2 situations apply.
Eligibility criteria not met
(2) The first situation applies if:
(a)the person is covered by subsection 21(2), (3) or (4); and
(b)the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.
…”
AUSTRALIAN CITIZENSHIP INSTRUCTIONS AND CITIZENSHIP POLICY
The Australian Citizenship Instructions (“Instructions”) have been issued by the Minister. The Citizenship Policy (“Policy”) was also issued by the Minister on 1 June 2016. The Instructions and the Policy have been adopted to guide those making decisions under the Act. Chapter 10 of the Instructions and Chapter 11 of the Policy set out the relevant legislative requirements and policy guidelines for Australian citizenship, where good character is involved. The Instructions and the Policy reflect Government policy and are not binding on the Tribunal. However, the Tribunal should have regard to the Instructions and/or the Policy unless there is good reason not to do so.[2]
[2] Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 643 at 645.
In looking at paragraph 25(2)(b)(iii) of the Act, the expression “not of good character” used there is not defined. Like the term “good character”, the Federal Court and Tribunals have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the following definition from the Full Federal Court judgement in Irving v Minister for Immigration, Local Government and Ethnic Affairs[3], which relevantly reads at [3]:
“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 the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion …”
[3] (1996) 68 FCR 422.
As explained in 10.3.4 of the Instructions, 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:
oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
oinvolvement in bogus marriage
…
In re Zheng and Minister for Immigration and Citizenship[4] Deputy President Forgie considered the language of s 21(2)(h) of the Act and the term “good character”. The following are some of the conclusions reached by the learned Deputy President in Zheng:
(a)an assessment of the applicant’s character is to be determined on the evidence at the date of the review, not at the time of the Ministers decision;
(b)the burden of proof is no greater than satisfaction. The Tribunal does not need to be positively persuaded that the applicant is of good character; and
(c)the concept of good character does not refer to a person’s reputation or repute.
[4] [2011] AATA 304.
FACTUAL BACKGROUND
The factual background giving rise to the cancellation of the approval of Australian citizenship by conferral for the applicant on 6 February 2015 follows below.
At some stage after his arrival in Australia, the applicant’s wife submitted a spousal visa application off-shore with the applicant as the sponsor. Annexed to that application were the following documents which were purportedly issued by the ‘General Consulate of the Islamic Republic of Afghanistan – Quetta’:
(a)a death certificate of Ms Fatima dated 10 June 2013;
(b)a death certificate of Mr Hussain Ali dated 10 June 2013; and
(c)a marriage certificate of the applicant and his wife, Zainab Abbasi, dated 7 June 2013.
At the same time as the case officer sent the applicant the Notice, a deferral of acquisition of Australian citizenship letter was also sent to him which advised that he could not make a pledge of commitment before 6 February 2016. At that time, the Department thought that the death certificates were for the applicant’s parents and found them to be inconsistent with the information provided by him during his protection visa application interview. Moreover, the Notice also raised concerns about the fact that the second witness on each of the death certificates and the ‘Attorney of the Bridegroom’ on the marriage certificate featured the same photograph, but detailed different names and identity numbers.
Details of the second witness to each death certificate are as follows:[5]
[5] Exhibit R1, T6 p 68.
Name F/Name G/F/Name Permanent and present address ID Card or Passport No Abdul Ali Qanber Ali Ewaz Ali Ghazni and Quetta 573977
Details of the ‘Attorney of the Bridegroom’ on the marriage certificate are as follows:[6]
[6] Exhibit R1, T6 p 74.
Name
Father’s name
G.F. Name
Residence
Nationality
Age
Date & NIC No.
Hassan Ali
Juma Khan
Qadir Ali
Quetta
Afghan
75
169380
On 8 February 2015, the applicant responded by email. He explained that the death certificates were not of his parents, but were of his adopted child’s parents. He did not, however, explain the inconsistencies in the details of the witness on each of the relevant certificates.
In relation to the marriage certificate, the applicant filed a statement with the Tribunal on 17 September 2015, which reads:[7]
“The marriage certificate filled overseas was on behalf of me.
I found out from the immigration department the error on marriage certificate investigating the matter from overseas, I found that the mistake was from the person who filled the documents on behalf of me. The person I requested for the certificate accepted making the error on filling the documents.
The witness name, HASSAN ALI, on marriage certificate is true but the photo attached is of another person filed in as error by the third person who submitted the files to consulate.
It was not my intention to commit fraud as I was not aware of the errors made in marriage and death certificate by another person who filled the documents on behalf of me in Pakistan."
[7] Exhibit A1.
Annexed to that statement was what purports to be a ‘correction affidavit’ by Mr Hassan Ali, which states:
“I, Hassan Ali Son of Juma Khan G/Son of Qadir Ali confess on oath as under:-
1Mr JALAL HAIDARI S/o JAN ALI G/Son of MOHAMMAD ALI is well known to me, I now only knows Mr. Jalal Haidari but also knows his father and Grandfather, in previous we were having gathering of family, I was friend with his father and Grandfather, there I participated in marriage ceremony of Mr. Jalal Haidari and his Bride Ms. ZAINAB ABBASI D/o ABBAS as they invited me and I was witness of their versus of marriage.
2As matter of fact in previous marriage certificate instead of my photograph they punched photograph of another witness by mistake of Petition Writer, as they have a lot of people coming for their matters, when we have given the documents and photograph to him to write application for completion of File, unfortunately he punched photo of another person instead of my photo
The statements mentioned above is true to the best of my knowledge and belief and nothing relevant concealed therein.”
Annexed to that affidavit was what purports to be a new page and translation to the marriage certificate which contains the same details of the ‘Attorney of Bridegroom’, but with a new photograph of Mr Hassan Ali.
The respondent has referred to the witness statement of Mr I M Hudson, Chief Migration Officer at the Australian High Commission in Pakistan, which deposes to the effect that on 21 October 2015 the Citizenship Policy Section of the respondent requested that the Australian High Commission verify the genuineness of the certificates appearing in paragraph 14 above. On 22 October 2015, the Australian High Commission requested that the Afghan Embassy verify that those marriage and death certificates had been genuinely issued by the Embassy or Consulate. On 11 November 2015, the Australian High Commission received an email from the Afghan Embassy enclosing an advice stating that those marriage and death certificates were fake and bogus.
On 20 January 2016 the applicant provided the following statement:
“I phoned HASSAN ALI, to help me, with my children, to obtain a marriage certificate for myself and Zainab Abasi and also to get the death certificate for Ms Fatima and Mr Hussain Ali. So hence, HASSAN ALI acquired these document from consulate General of Afghanistan in Quetta. As Hassan ALI got these documents, he has told me that he went to the consulate General of Afghanistan in Quetta and he asked for these documents on my behalf. The documentations were given to him, but since he has no education in writing and reading, he believed it was true. I, believing him thought these documents were genuine. Hassan Ali told me this and I have passed them to you but I did not know the how genuinely these documents were made.”
What I have said I have said truly to the best of my knowledge.”
On 15 February 2016, the applicant provided the following character references:
(a)a letter from Hasan Emad, case manager at the Migrant Resource Centre SA stating he has known the applicant since October 2010 as he has assisted him in settlement. He further says the applicant is an active member of the Afghan community and helps with activities and events.
(b)a letter from Hussain Razaiat, chairperson of the Afghan United Association of South Australia, stating that the applicant is a person with integrity and good character and an active member of his community.
(c)a letter from Qiyam Nosrat, director of Pacific Travel Centre and treasurer of the Afghan United Association of South Australia, stating he has known the applicant for the past 5 years and that he is very honest and of good character.
(d)a patient health summary from Dr Farah Ahmad, GP, which states she has been treating the applicant for the past 1.5 years and that he is compliant and follows advice given with a positive attitude.
The Minister’s delegate found that the applicant was not of good character as he had sponsored a spousal visa application that had provided death and marriage certificates which were not genuine as they contained a photo of the same witness, but with different identification details on each certificate. The delegate subsequently cancelled the applicant’s approval of Australian citizenship pursuant to s 25(2)(iii) of the Act.
EVIDENCE
Evidence of Applicant
It was the applicant’s evidence that he was at Christmas Island from March 2010 to August 2010, when he left. He had since worked at a chicken factory until he left there in 2014, but also did building jobs until his doctor said not to work. In Adelaide he lived with house mates. He then rented a property and his friends remained the same. He became involved with new arrivals to Australia and in helping them. There had been no trouble with the law, but he was involved in a traffic offence which only involved an expiation notice. He had not been involved with the police in either Pakistan or Afghanistan.
The applicant said that he was married and had five children. One of his children, Ahmad Basir Haidari, was adopted. When he adopted that child he lodged his application through his lawyer and he told her clearly that Ahmad Basir was his adopted child. The applicant also had problems obtaining the correct marriage certificate with the help of Hassan Ali. There were also problems in obtaining the death certificates for the parents of his adopted son. He did not explain why he had not gone to the Afghanistan Embassy in Australia for the certificates. He had asked for assistance from Hassan Ali, but the certificates could take three weeks. Hassan Ali would let the applicant know when the certificates were ready. The problem was that the photographs on the death certificates for the parents did not match.
Evidence of Abdul Nabizadeh
The evidence of Abdul Nabizadeh was that he had been living in Australia for five years and had known the applicant for four years. He said that the applicant was a good person and he would take part with the applicant in community events. The applicant assisted people in getting around. He did not have a witness statement because no one had asked him for one.
Evidence of Qiyam Nosrat
It was the evidence of Mr Nosrat, which was taken by telephone, that he had lived in Australia for 16 years and had known the applicant for about five years. He said that he had met the applicant at the Afghan United Association, at events within the centre. He helped with drinks and food and would assist in cleaning the centre.
CONSIDERATION
Can the approval for Australian citizenship given to the applicant be cancelled if, at the time the Minister proposes to cancel the approval, the applicant is not of good character?
As can be seen from the legislative provisions in paragraph 9 above, under s 25 of the Act the Minister may, by writing, cancel an approval for Australian citizenship given to a person under s 24 if:
(a)the person is covered by the provisions in subsection 21(2), (3) or (4); and
(b)the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is not of good character.
In giving her closing, it was Ms Cox’s submission that there needs to be sufficient evidence before the Tribunal that, at the time the Minister proposes to cancel the approval, the applicant is not of good character. Unlike the provisions in s 21(2)(h) of the Act, which require that the applicant is a person of good character at the time of the Minister’s action, s 25(2)(b)(iii) requires that the person is not of good character. The wording of the test in s 25 is subtly different to the wording of the test in s 21(2)(h).
Mr Hassan Ali, the friend of the applicant, obtained the marriage certificate. He obtained all three relevant certificates, but he was in fact able to be a witness and attorney for the bridegroom on the marriage certificate as he was present at the applicant’s wedding. Ms Cox argued that it is for the respondent to provide sufficient evidence that the applicant is not of good character. She submitted that this has not been done. She suggested that the assessment of a person’s character involves the requirement for the decision-maker to look holistically at the applicant’s behaviour. The applicant adopted a child who did not have family members to look after him, as his parents had both died. He had never been in trouble with the police, the only offending in Australia was for a minor traffic offence. Moreover, he had never been in trouble with the police in Pakistan or Afghanistan.
Ms Stokes for the respondent submitted that the affidavit evidence of Mr Hudson, the Chief Migration Officer at the Australian High Commission, was not subject to cross-examination. She said she assumed the applicant accepted that evidence. And that strongly suggested that the documents (including the certificates) were fake and bogus. However, when the Consulate General of the Islamic Republic of Afghanistan in Quetta certified the applicant’s wedding certificate as it did, what did it mean when it described the certificate as fake and bogus? Moreover, in the email from Richard Kerr contained in Annexure A to Mr Hudson’s affidavit, Mr Kerr said:
“Background
Mr HAIDARI has been refused citizenship as the delegate formed the view that he had provided counterfeit documents to support the application for a spouse visa by his claimed wife and children.
The counterfeit docs are a marriage certificate and a death certificate (which details the death of the biological parents of his adopted son, which is disclosed in the spouse visa application). The problematic issue is that one of the witnesses to these docs has appeared on other Afghani docs under other identities.
Mr H is appealing the refusal at the Administrative Appeals Tribunal (AAT) because he maintains that someone else, possibly his son, lodged the application for these documents at the Afghani Consulate in Quetta (Pakistan) and that the Consulate ‘mixed them up’.
Mr H has now submitted ‘corrected’ parts of the marriage doc and has provided a notarised certificate from the witness to the marriage certificate setting out how well he has known Mr H and his wife.
We have read various IMtel reports from Dubai post casting doubt on the veracity of Afghani docs in general and those claimed to be issued by the Afghani Consulate in Quetta, Pakistan.
We now have concerns that the entire marriage certificate is false (and the death certificate of the parents of his adopted son likewise false) and that those docs were not issued by the Afghani consulate in Quetta, but by some other party.
We now wish to rely on these docs being false to defend the decision to refuse HAIDARI’s application for citizenship at the AAT. Hence, we seek their authentication. We understand from Dubai post that you/your team can do this thru’ the Afghani Embassy in Islamabad.”
In relation to the respondent’s position, it seems to me that reliance is being placed on the language being used to describe the relevant documents and whether the information contained in them is genuine. In the Macquarie Dictionary, (6th edition), the term fake means (1) to prepare or make (something specious, deceptive, or fraudulent); (2) to conceal the defects of, usually in order to deceive; (3) to pretend. The term bogus means counterfeit; spurious; sham. The term counterfeit means (1) made to imitate, and pass for something else; not genuine; (2) pretended; (3) an imitation designed to pass as an original; a forgery. It seems to me that these terms are all suggestive of a persons’ bad character and are not appropriate when considering the issue of whether a person is not of good character.
In the email from Mr Kerr, he refers to reports from Dubai post casting doubt on the veracity of Afghan documents in general, and those claimed to be issued by the Afghani Consulate. He suggests that the entire marriage certificate of the applicant is false, as is the death certificate of the parents of his adopted son, and that those documents were not issued by the Afghani Consulate in Quetta, but by some other party. In my view, if there are concerns by the respondent about the truthfulness of Afghani documents in general, these concerns might be misconceived if they are seen as appropriate to the applicant’s documents.
Chapter 10 of the Instructions refers to character. The purpose of the Chapter is said to provide guidance on the administration of the ‘good character’ provisions under the Act. The Chapter also provides a framework for assessing an applicant under the ‘good character’ provisions. Decision-makers need to look at the merits of each case and to turn their minds to the issues of character until they are ‘satisfied’, on a reasoned basis that an applicant is, or is not, of good character.
There was oral evidence of two referees. There were also four written character references provided by persons who knew the applicant. Paragraph 10.6.5 of the Instructions refers to bias inherent in character references submitted by an applicant and the weight that might be attributed to them. Although the written character references were not made as statutory declarations, this does not result in a reduction of the weight I am prepared to give them and, given the circumstances, there is no inherent bias.
There have been many decisions of Tribunal’s and Courts on what is good character. However, there are not as many decisions of Tribunals and Courts on what is not of good character. In reChen v Minister for Immigration and Citizenship,[8] the Tribunal (standing in the place of the Minister) had to decide whether it was satisfied that the applicant is a person of good character within the meaning of s 13(1)(f) of the Australian Citizenship Act 1948, which is the equivalent of s 21(2)(h) of the Act. Senior Member McCabe (as he then was) said the wording of the test in s 13(1)(f) is important. It does not require that the Minister form an adverse view of the applicant’s character. The Minister (and hence the Tribunal) must be positively persuaded that the applicant is of good character. However, as Senior Member John Handley found in re GJRL v Minister for Immigration and Border Protection,[9] in deciding whether he is satisfied that the applicant is of good character, he is not obliged to be positively persuaded. The standard of proof for the purposes of deciding whether he is satisfied that the applicant is of good character will be on the civil standard of balance of probabilities. In the case of s 25 of the Act, although paragraph 25(2)(b)(iii) it does not require that the Tribunal form an adverse view of the applicant’s character, in my view the Tribunal must be positively persuaded that the applicant is not of good character.
[8] [2007] AATA 1815.
[9] [2015] AATA 76.
Given that the wording of the test in s 25 of the Act does not require that the Minister form an adverse view of the applicant’s character, in my further view the standard of proof for the purpose of deciding whether I am satisfied the applicant is not of good character will also be on the civil standard of balance of probabilities.
In relation to the statement that was provided by way of the affidavit evidence of Mr Hudson that all three certificates are fake and bogus, Ms Cox submitted that there was no evidence given that explained what that statement meant and what provided the basis for it. It could simply be an assumption, based on the fact that the witness’s photographs in all three certificates, is or may be the same. The evidence that was given by the applicant and also that given in the correction affidavit of Hassan Ali provide an entirely plausible alternative explanation for the marriage certificate simply involving an administrative error occurring in the Consulate General of the Islamic Republic of Afghanistan in Quetta.
The applicant has provided two written statements. The first statement received in the Tribunal Registry on 17 September 2015 relates to his marriage certificate which he said contained an error or mistake. He says he found that the mistake was by the person who filed the documents on his behalf. That person accepted making the error when filing the documents. It appears the witness’s name (Hassan Ali) on the marriage certificate is true, but the photograph on the certificate is of another person filed in error by the third person who lodged the certificate. The applicant said that it was not his intention to commit fraud as he was not aware of the errors made in the marriage and death certificates by the person who filed the documents on his behalf in Pakistan. In the second statement made on 24 December 2015 and received in the Tribunal Registry on 20 January 2016, the applicant says he had phoned Hassan Ali to help him obtain a marriage certificate for himself and his wife. He says he also wanted to get the death certificates for his adopted son’s parents. Hassan Ali acquired the certificates from the Consulate General of Afghanistan in Quetta. Mr Ali told the applicant that he went to the Consulate General and he asked for the documents on the applicant’s behalf. The documents were given to Mr Ali who believed they were accurate. Having considered the applicant’s statements and reviewing all the evidence, including the detailed correction affidavit of Hassan Ali, I am not positively persuaded that the applicant is not of good character. I am satisfied that the applicant is a person of good character.
DECISION
For the reasons outlined above, the Tribunal:
(a)pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) sets aside the decision under review; and
(b)remits the matter to the decision-maker for reconsideration in accordance with a direction from the Tribunal pursuant to s 43(1)(c)(ii) of the AAT Act that the applicant is a person of good character for the purposes of paragraph 25(2)(b)(iii) of the Australian Citizenship Act 2007.
I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne ......................[Sgd]..................................................
Administrative Assistant
Dated 21 July 16
Date(s) of hearing 28 April 2016 Advocate for the Applicant Ms J Cox Solicitors for the Applicant National Pro Bono Project Advocate for the Respondent Ms C Stokes Solicitors for the Respondent Australian Government Solicitor
1
4
1