Haidari and Minister for Immigration and Border Protection (Citizenship)

Haidari and Minister for Immigration and Border Protection (Citizenship) [2019] AATA 997 (28 May 2019)
Division:GENERAL DIVISION
File Number(s): 2017/5212
Re:Ali Haidari
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Member R Maguire
Date:28 May 2019
Place:Brisbane

The Tribunal affirms the decision under review.
............................[SGD]......................................
Member R Maguire
Catchwords
CITIZENSHIP – citizenship cancellation – not of good character – counterfeit driver’s licence – decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Criminal Code Act 1995 (Cth)
REASONS FOR DECISION
Member R Maguire
28 May 2019

This is an application by Mr Ali Haidari (“the Applicant”) for the review of a decision to cancel the approval of the Applicant to become an Australian citizen on the ground that the applicant was not of good character as provided for in section 25(2)(b)(iii) of the Australian Citizenship Act 2007 (“the Act”). The question to be determined by this Tribunal is whether at the time the Minister cancelled the approval, the applicant was of good character.
The Applicant is a 26 year old citizen of Afghanistan. He first arrived in Australia on 23 February 2010, as an unauthorised maritime arrival and was granted a Protection (subclass 866) permanent Protection visa on 30 September 2010. On 12 February 2010, he was granted a subclass 155 Return Resident Visa.[1]
[1] Exhibit 1, T12, p.127.
On 26 November 2014, the Applicant applied for Australian citizenship by conferral.[2]
[2]Exhibit 1, T4, pp. 12 – 21.
On 31 December 2014, the Applicant was notified that his application for Australian citizenship had been approved.[3]
[3]Exhibit 1, T5, pp. 29-30.
On 27 January 2017, the Applicant received a Notification of intention to consider cancellation (hereinafter referred to as “the NOICC”) of the approval of his Australian citizenship.[4]
[4] Exhibit 1, T7, pp. 35-37.
On 21 August 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) made a decision to cancel the approval of the Applicant’s application for Australian citizenship by conferral[5] on the ground that the applicant was not of good character as provided in section 25(2)(b)(iii) of the Australian Citizenship Act 2007 (“the Act”).
[5]Exhibit 1, T12, pp. 122-148.
Subsequent to this, the Applicant sought a review of the delegate’s decision by this Tribunal, by way of an application dated 28 August 2017.[6]
[6] Exhibit 1, T2, pp. 3-10.
On 15 May 2018, a hearing was held for this application before a Senior Member. The Applicant attended the hearing in person.
Subsequent to the hearing, the Senior Member who had presided became incapacitated, and was unable to deliver a decision. In April 2019, the matter was reconstituted to another member of the Tribunal, and the parties were invited to deliver any further submissions having regard to the period which had passed since the hearing. Following the expiration of time for delivery of those submissions, the reconstituted Tribunal has reviewed the submissions and all other evidence in the light of the transcript of the proceedings of the hearing of 15 May 2018.
For the reasons outlined below, the Tribunal considers that the decision under review should be affirmed.
BACKGROUND
The Applicant is 26 years of age and was born in Afghanistan.[7]
[7] Exhibit 1, T4, p.12.
The Applicant first arrived in Australia as an unauthorised maritime arrival on 23 February 2010 and was subsequently granted a Protection Visa (subclass 866) on 30 September 2010. On 12 February 2016, the Applicant was granted a Resident Return Visa (subclass 155). On 26 November 2014, the Applicant applied under section 21 of the Act for Australian citizenship by conferral.[8]
[8] Exhibit 1, T12, p.127.
On 31 December 2014, the Applicant was notified that his application for Australian citizenship had been approved.[9]
[9]Exhibit 1, T5, pp. 29-30.
On 25 October 2016, the Applicant attended an identity interview at the Brisbane Office of the Immigration and Border Protection (“the Department”).[10]
[10] Exhibit 4, p.2.
Two Officers from the Department conducted the interview and an interpreter in the Hazaragi language was present.[11] The purpose of the interview was set out for the Applicant at its outset:
“The purpose of the interview today is for you to assist the Department in making an up-to-date assessment of your identity. The assessment will be attached to the departmental file and may be used by the Department in other processes”.[12]
[11] Exhibit 4, p. 2.
[12] Exhibit 4, p. 3.
The Applicant was also notified of the consequences of providing false or misleading information and was notified that the information provided could also be disclosed to other governmental agencies.[13]
[13] Exhibit 4, p. 4.
At this interview, the Applicant provided to the Officers a Queensland driver’s licence issued 9 July 2013 for Class C, (heavy vehicles), and said that he was a truck driver. He also said that he had not driven trucks before, and had not had an Afghan driver’s licence. The Applicant explained that in order to obtain the licence, he had arranged with his friends in Pakistan to provide him with an Afghan driver’s license[14] so to avoid the usual requirements for prospective licensees. The applicant had not previously held a driver’s licence of any description in either Afghanistan or Pakistan.
[14] Exhibit 4, p. 6.
The Applicant was questioned about whether the license was genuine and answered in the negative. When asked to explain this further, the Applicant stated that he had arranged to get the license in order to obtain employment in Australia. The Applicant stated:[15]
“So because I have to get the job and to sponsor my family to work so and at that time I tried to get the licence and so I fix the licence up, sorry. To get the job. The reason for it”.
[15] Exhibit 4, p. 7.
Following this interview, the Applicant was issued a NOICC[16] and was invited to comment on information he had given in relation to how he had obtained his Australian driver’s licence. The delegate made a finding that the Applicant had applied for an Australian driver’s license using a fraudulent Pakistani driver’s license.
[16] Exhibit 1, T7, pp. 35-37.
The Applicant appointed a Migration Agent to assist him with his response to the Department.[17]
[17]Exhibit 1, T8, pp. 38-41.
On 28 June 2017, the Applicant responded to the NOICC and attached various supporting documents:[18]
(a)A Statutory Declaration dated 23 June 2017 from the Applicant;[19]
(b)Economic Evidence;
(c)Character References;
(d)Driving Evidence; and
(e)Supporting Research.
[18] Exhibit 1, T11, pp. 58-121.
[19] Exhibit 1, T11, pp. 64-67.
ISSUE
The issue for the Tribunal to determine is whether at the time of the decision to cancel the approval of the Applicant’s application for Australian citizenship by conferral, the Applicant was not of good character for the purposes of section 25(2)(b)(iii) of the Act.
The Tribunal has jurisdiction to review the DIBP Decision pursuant to section 52(1)(c) of the Act.
LEGISLATION
Section 25(2)(b)(iii) of the Act provides that if the Minister is satisfied that at the time the Minister proposes to cancel an approval given under section 24, a person is not of good character, the Minister may by writing, cancel that approval.
CONSIDERATION
At the interview on 25 October 2016, the Applicant was asked with reference to his Queensland heavy vehicle licence whether he had driven trucks before and said no. The following exchange occurred (p5-7) (translation references omitted).
IEB      And what documents did you need to show to get that licence?
A         The first one we get our L. L level licence. So after that I make overseas licence.
IEB     Make sorry?
A         Make overseas licence
IEB     Overseas licence
A         Overseas licence which is Afghani licence.
IEB      Yep
A         So I proved them for that and they gave me full licence
IEB      So you had your Afghan driver’s licence
AI didn’t get, just sent the money and they sent me. So I had friends in [unclear] Pakistan. So I called them and if I go to transport and ask them they say if you get a P you have to 110 something,120 hours. And after 1 year to get a P licence, so if you have an overseas licence we can give you the full licence. So I asked my friend to make for me.
IEB      So he got you a licence from where?
A         He fixed it for me from Pakistan.
IEB     Okay, and so had you previously held a driver’s licence in Pakistan?
A         No.
IEB     So is it a genuine licence?
A         [unclear]
IEB     Okay
A         Sorry
IEB     Sorry, it a genuine licence or is it…?
A         No
IEB      Okay, Have you still got that licence?
A         No, When I get the licence 5 years, 6 years ago, I don’t know where I put    it.
IEB      Okay. Okay. Before I begin the rest of the questions, thank you for giving that        information.
A         I’m sorry.
IEB     Okay. Is there anything else that you wanted to tell us about before we begin?
A         So do you want to, I ask you why I get this, why I did this job. Why I did, why I        get that licence.
IEB     You can if you like. You did mention [unclear] before
A         Because when I get, come out from detention centre, so I tried to get a job. So      work, so to get money. So I spoke with the lawyer and what’s like calling, lawyer to      get my family sponsor. So at that time, so I needed a job. So I applied for     three    company and they say you have to get a licence and car to come to a job. Which is [unclear] factory at [unclear] factory, yeah. So two or three times I applied and they did not accept me because you don’t have a licence, how will you come       to work? It’s a night shift. So because I have to get the job, and to sponsor my     family to work so and at that time I tried to get the     licence and so I fix the licence           up, sorry. To get the job. The reason for it.
IEB     Okay. Thank you for being honest with us.
A         Yeah, sorry.
Near the conclusion of the interview, pp. 38-39 the following exchange occurred:
IEB      Okay, and Ali, is there anything else that you would like to say or are there any      questions?
A         Yes, I’m just say, I apologise for the licence
IEB     Okay.
A         The driving licence.
IEB      Driving licence.
A         Yes.
IEB      Okay.
A         I did mistakes that time. I have to do thing to work and to get a job and so to          support my family, something.
IEB      Thank you for being honest with us about that.
A         So. I’m so sorry about that one.
The applicant’s Identity Interview[20] shows that at no time was any legitimate travel documentation produced to the border authorities of Afghanistan, Pakistan, Malaysia, Indonesia or Australia whilst he was en route to Australia, and that to the extent that documents were produced, they were produced by the people smugglers, as part of their service to the Applicant.
[20] Exhibit 4, pp. 27-31.
When commenting on the falsified passport bearing a false name, which was produced to authorities for him when he left Afghanistan and entered Pakistan, the Applicant said that he did not think it was a real one, but was not sure.[21] The Tribunal finds this evidence not plausible.
[21] Exhibit 4, p. 29
In his statutory declaration of 23 June 2017,[22] the applicant stated at paragraph 6:
“In Afghanistan, you can be eligible for a Licence if you are over 18 years of age and you pay a sum of money (this is common practice). When I arranged for my friend overseas to get my Licence for me, I was under the impression that it would be a genuine licence. The Afghanistan Government is very corrupt, so paying a sum of money for any official government document is common practice there.”
[22] Exhibit 1, T11 p 65.
The Tribunal views this extract with concern, as it goes perilously close to asserting, and indeed seeking to justify, a possible breach of section 70.2 of the Criminal Code Act 1995 (Cth), namely bribing a foreign public official.
In paragraph 6 of the statutory declaration, the Applicant also stated “It wasn’t until a year ago or so, I heard through the Hazara community that some of the driver’s licences were not genuine. As the Interviewer was asking me questions about the Afghanistan driver’s licence, I started to think that the licence might not be genuine.” The statements in paragraph 6 appear as to the Applicant’s “impression that it would be a genuine licence” and his afterthoughts are in stark contrast to the evidence during interview, when the Applicant gave an unhesitating and unequivocal “No” followed by several expressions of sorrow when asked if the licence was genuine. The unhesitating unequivocal “No”[23] given at the identity interview is also in stark contrast to the Applicant’s statement in his statutory declaration of 22 June 2017,[24] where he said at paragraph at paragraph 5 “Following the issuing of my licences, I have since become aware that the Afghani licence I replied (sic) upon in my application may not have been an authentic or legitimate licence.”
[23] Exhibit 4, p. 6.
[24] Exhibit 1, T 11, p. 96.
Following the reconstitution of this matter, the Applicant’s Migration Agent delivered a submission advising that the Queensland Department of Main Roads and Transport had been advised by the Applicant by letter dated 26 June 2017 that the Applicant “had provided a non-genuine document as part of the licensing process” and has taken no action against the Applicant in respect of that issue, and has renewed his Industry Authority as a professional Tow Truck Driver through to October 2023 without conditions. Included with the submission was a letter to the Tribunal from the Applicant’s wife. The Applicant’s wife said that since their wedding in 2016, they have only been able to be together for sixteen weeks per year, and the long distance marriage has had negative health, emotional and financial consequences, and she despaired that they would never live together as a family. She also stated that she wants to contribute to Australia, by studying, and working hard with her husband, and being a good citizen in a safe country where their family has the opportunity to survive.
The submission that the Department had been advised that the Applicant “had provided a non-genuine document” does not accurately reflect the actual wording of the letter of 26 June 2017, which stated “the licence may not have been legitimate”, and was accompanied by a Statutory Declaration by the Applicant dated 22 June 2017, in which the Applicant declared that the licence “may not have been an authentic or legitimate licence.” The Department responded on 26 July 2017, advising that the Applicant would be advised if any action was to be taken against him.
The Tribunal has considered the Applicant’s recent submission, and finds it has little relevance to the question to be determined by this Tribunal, which is whether the applicant was of good character for the purposes of section 25(2)(b)(iii) of the Act.
Looking at the history of this matter, leaving aside the concern that based on the Applicant’s evidence there appears to be a black market counterfeit licence industry in the Hazara community, as “a lot of my friends had obtained an open licence from Afghanistan”[25] the Applicant appears to have engaged in reconstruction in the period since the interview. Nowhere in the Applicant’s evidence has he clearly stated in any detail precisely how much he paid, to whom he paid it, and how it was to be applied, and what the actual legitimate fee for a licence was. Neither has the Applicant stated with any degree of particularity or detail why he was under an initial impression that the licence was genuine, or precisely when and why he abandoned that view. His evidence in respect of both issues is vague and particularly having regard to his past efforts at producing legitimate documents to government authorities, unconvincing. The Tribunal rejects the Applicant’s evidence that he believed the licence he produced to the Queensland Department of Transport and Main Roads was legitimate at the time he produced it, as a lie.
[25] Exhibit 1, T11, p.64.
Australians are entitled to expect their fellow Australians, indeed, all those who enter this country on whatever basis, to abide by the law, to distinguish between right and wrong, and to be truthful and ethical in their dealings with government authorities.
The Tribunal finds that the Applicant knowingly and deliberately produced a counterfeit licence to the Queensland Department of Main Roads and Transport for the purposes of deceit, and to avoid the stringent requirements which apply to all novice road users and would be licence holders. Those requirements include holding a learner licence for at least 12 months prior to obtaining a provisional licence, holding a provisional licence for three years prior to obtaining an open licence. Had the Applicant taken the usual path, he might have been expected to obtain a provisional licence on or after 16 November 2011, being 12 months after obtaining his learner licence,[26] and an open licence on or after 16 November 2014 being three years after obtaining his provisional licence. The Applicant’s dishonesty allowed him to obtain an open automatic licence on 11 August 2011, and Manual and heavy rigid vehicle licences on 2 August 2012 and 23 February 2015 respectively upon completion of further relevant practical examination.
[26] Exhibit 1, T11, p. 101.
The laws governing knowledge of road rules and practical experience via supervised hours for learner drivers, and the staging of provisional licences have as their prime objective the safety of all road users, and their property, by ensuring that all road users have the requisite experience and skill to safely control their vehicle. This is a matter which concerns all Australians. By his deceit, the Applicant has recklessly presented a danger to other road users, and himself. It is to be hoped that the lack of action by the Queensland Department of Main Roads and Transport will not incentivize others to follow the Applicant’s example.
It is clear from the numerous letters of support put before the Tribunal that many of his friends and associates are prepared to speak highly of him, including some who knew of the relevant incident. However, it is also clear that the Applicant left Afghanistan, and travelled through Pakistan, Malaysia, and Indonesia, prior to entering Australia as an unauthorised maritime arrival on 23 February 2010, without producing one legitimate passport or travel document to border protection authorities along the way. It therefore should come as no real surprise that the Applicant has instigated and arranged the preparation and presentation of another false document for presentation to Queensland Department of Main Roads and Transport, and has gone into denial after being caught out. It is ironic that it appears that even when the Applicant did eventually produce a document which actually had his name on it to authorities, it was counterfeit. This conduct cannot be viewed in isolation without regard for past events. The Applicant has a track record of ignoring rules when he thinks he can get away with it. The fact that as late as 23 June 2017, the Applicant was prepared to try to justify his corrupt conduct fortifies this Tribunal in its conclusion that the Applicant was not a person of good character some weeks later in August 2017 when the decision under review was made.
Considering the whole of the Applicant’s history and the evidence before the Tribunal, the Tribunal finds that the Applicant was not a person of good character at the time of the Minister’s decision to cancel his approval to become an Australian citizen.

Accordingly, the decision under review must be affirmed.

I certify that the preceding 41 (forty- one) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

.....................[SGD]..........................
Associate
Dated: 28 May 2019

Date of hearing:

Date final submissions received:

15 May 2018

9 May 2019

Representative for the Applicant:

Solicitors for the Respondent:

AMVL Migrations

Sparke Helmore

[2019] AATA 997

28 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction