Haidari and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

Haidari and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 2986 (18 September 2023)
Division:GENERAL DIVISION
File Number: 2022/0943
Re:Shukrulluh Haidari
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:18 September 2023
Place:Melbourne

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.
.............................[SGD]...........................................
Senior Member D. J. Morris
Catchwords
CITIZENSHIP – applicant is a citizen of Afghanistan – applicant a permanent resident of Australia – applicant applied for Australian citizenship – delegate of minister decided not satisfied applicant was of good character – applicant applied to Tribunal for review – consideration of conduct of applicant – consideration of citizenship policy instruction – information and documents provided by applicant – four matters in dispute – the provision of a bogus taskera – the whereabouts of the applicant’s father – the applicant’s partner – the applicant’s religious beliefs – importance of providing truthful and complete information to the Department – decision under review is affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
Marriage Act 1961 (Cth)
Cases
BOY19 v Minister for Immigration and BorderProtection [2019] FCA 574
Drake and Minister for Immigration and Ethnic Affairs; Re: (No.2) (1979) 2 ALD 634
Irving and Minister of State for Immigration, Local Government and Ethnic Affairs [1996] FCA 663
Lachmaiya and Department of Immigration and Ethnic Affairs; Re: [1994] 19 AAR 148
Minister for Home Affairs v G and Another (2019) 266 FCR 569
Secondary Materials
Australian Citizenship Procedural Instructions (CPIs) – CPI 15 – Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
Senior Member D. J. Morris
18 September 2023

The Applicant first arrived in Australia in May 2010. He is an Afghan national and arrived as what is described as an unauthorised maritime arrival.
In April 2011, the Applicant applied for a particular class of visa, which grants permanent residency, and he was granted such a visa on 13 April 2011.
In May 2011, the Applicant proposed his mother and three brothers for an offshore Global Special Humanitarian (Class XB)(Subclass 202) visa (‘GSH visa’).
On 19 May 2015, the Applicant applied for Australian citizenship by conferral. In support of that application, he provided a document which was a taskera with the registration number 1254882.
Later in May 2015, the GSH visa applications for the Applicant’s mother and siblings were refused.
On 3 February 2022, a delegate of the Respondent refused to approve the Applicant’s application for Australian citizenship on the basis that the delegate was not satisfied that the Applicant met s 21(2)(h) of the Australian Citizenship Act 2007 (‘the Act’) – that he was of good character at the time of the decision on the application.
On 7 February 2022 the Applicant lodged an application for review of that refusal decision by the Tribunal.
HEARING
A hearing took place on 22 August 2023. The Applicant was represented by Ms Lauri Stewart of Stewart Administrative & Migration Lawyers. The Respondent was represented by Mr Keith Sypott, of The Australian Government Solicitor.
The Tribunal took into evidence the following documents:
(a)Volume of documents submitted under s 37 of the Administrative Appeals TribunalAct 1975 (the ‘AAT Act’) (‘TD’) – Exhibit R1
(b)Volume of supplementary documents from the Respondent (‘STD’) – Exhibit R2
(c)Arrival interview audio and transcript – Exhibit R3
(d)Statutory declaration of the Applicant dated 8 June 2022 – Exhibit A1
(e)Statutory declaration of the Applicant dated 10 July 2023 – Exhibit A2
Both parties also submitted Statements of Facts, Issues and Contentions, to which the Tribunal had regard.
THE LAW
The Act provides that, where a person applies for Australian citizenship by conferral under the general eligibility provisions, the Minister (or a delegate of the Minister) must be satisfied of certain things. The first is that the person is aged 18 or over at the time he or she made the application (s 21(2)(a)). The Applicant satisfied this requirement. The second is that the person is a permanent resident (s 21(2)(b)). The Applicant satisfied this requirement. The third is that the person satisfies the general residence requirement or the special residence requirement at the time he or she made the application (s 21(2)(c)). The delegate was satisfied that the Applicant satisfied the general residence requirement.
There are other requirements for the grant of citizenship by conferral. One is that the person understands the nature of the application, possesses a basic knowledge of the English language and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship. This is taken to be satisfied by the person having completed a test authorised by the Minister. This was not assessed. Nor was the assessment that the person must be likely to reside in, or continue to reside in, Australia or to maintain a close and continuing association with Australia if the application is approved. It was not evident why these requirements had not been assessed, given the Applicant applied for citizenship almost seven years before the delegate made her decision. In any event, the reason that the delegate refused the application was because the delegate was not satisfied, under s 21(2)(h) of the Act, that the Applicant was of good character at the time of the decision.
The concept of good character
The term ‘good character’ is not defined in the Act. The Courts have considered the term ‘good character’ on several occasions, especially in relation to the character provisions in the Migration Act 1958 (‘Migration Act’). A leading case is Irving and Minister of State for Immigration, Local Government and Ethnic Affairs [1996] FCA 663 (Davies, Lee and R.D. Nicholson, JJ). In that case, Lee J relevantly said:
Unless the terms of the Act and regulations require some other meaning to 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. The former is an objective assessment apt to be proven as a fact whilst the latter is a review of subjective public opinion.
The case of BOY19 v Minister for Immigration and BorderProtection [2019] FCA 574 related to the character provisions relating to citizenship by conferral. O’Bryan J referred to previous judgments about the term ‘good character’ in the Migration Act and then said, at [87] to [88]:
As discussed earlier, the phrase “good character” refers to the enduring moral qualities of a person and not to their physical or mental attributes or abilities. The expression does not have a fixed and precise content and necessarily imports a discretionary value judgment informed by the subject matter, scope and purpose of the Act. The expression is concerned with moral qualities that are regarded as a necessary concomitant of Australian citizenship.
Consistently with Chapter 11 of the Citizenship Policy 2016, respect for the Australian Government and the laws of Australia, and respect for the institutions of government including governmental departments, is consistent with being of good character in the statutory sense. Such respect can be characterised as a moral quality that is relevant to citizenship. Conversely, disrespect for the Australian Government, the laws of Australia and governmental departments reflects adversely on a person’s character in the statutory sense.
In Re: Lachmaiya and Department of Immigration and Ethnic Affairs [1994] 19 AAR 148, Deputy President McMahon said, at [33]:
The Macquarie Dictionary defines character as “1. The aggregate of qualities that distinguishes one person or thing from others; 2. Moral constitution, as of a person or people; 3. Good moral constitution or status; 4. Reputation; 5. Good repute; 6. An account of the qualities of peculiarities of a person or thing.” In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had for the purpose of the legislation.
Additional guidance is provided in the Revised Citizenship Procedural Instructions (CPIs) published by the Department of Home Affairs (‘the Department’) which provide assistance to delegates of the Minister in making decisions. The CPIs are not legislative instruments and hold no legal force (see Minister for Home Affairs v G and Another (2019) 266 FCR 569). The Tribunal, unlike Departmental officers, is not bound to follow policy. But it has long been the practice of Tribunal Members, where a policy is promulgated and which has been applied in making a decision that is under review, to have due regard for the policy unless there are cogent reasons to depart from it. Cogent reasons to depart may include where the policy is inconstant with the law, or where rigid application of policy would have an unfair or perverse outcome.
This well-accepted general approach was enunciated by the Tribunal’s first President, Sir Gerard Brennan. What he said in Re: Drakeand Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634, relevantly set out below, has been successively endorsed by judicial opinion:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
CPI 15 – Assessing Good Character under the Citizenship Act, relevantly states, at paragraph 3.3:
What is good character?
The term ‘good character’ is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at [431]-[432]:
Unless the terms of the Act and regulations require some other meaning to 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 while the latter is a review of subjective public opinion…A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character…Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
Later on, CPI 15 relevantly states, at paragraph 4:
An applicant who is of good character
An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.
As a general proposition, a person who is of good character would:
·Respect and abide by the law in Australia and other countries;
·Be honest and financially responsible (for example pay tax, not be in dishonest receipt of public funds [,] pay debts to the Commonwealth);
·Not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:
Ø intentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
Ø evading immigration control at the border or living unlawfully in the community after their visa ceased, or assisting others to do so, or involvement in people smuggling or trafficking;
Ø knowingly entering into a bogus marriage or pretending to be a de facto partner of another person;
Ø concealing criminal convictions;
Ø fraud against the Commonwealth such as tax fraud or Centrelink fraud;
Ø giving false names and/or addresses to police;
…
Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.
THIS CASE
In essence, there were four subject matters the Respondent submitted should lead to a conclusion that the Applicant is not of good character. The first was the fact that the Applicant had submitted a bogus taskera. The second was information the Applicant had furnished that his father had died. The third was information the Applicant had provided about his partner. The fourth was information the Applicant had provided about his religious beliefs.
The parties agreed that the issue for determination by the Tribunal is whether Mr Haidari is of good character in terms of s 21(2)(h) of the Act at the time of this decision.
THE BOGUS TASKERA
In support of his application for citizenship, in May 2015 the Applicant provided a document which was purportedly a taskera with the registration number 1254882 (TD, p 40). In 2018 the Afghanistan Central Civil Registration Authority advised the Department that this taskera did not correspond with the Authority’s records and that it had not been issued by the Authority (STD, p 611).
The Applicant, in his written submissions and in his oral evidence at the hearing, said that his mother had obtained the taskera for him. He said he had been unaware that the taskera was not registered with the Authority when he submitted it. He said that he had subsequently had his identity confirmed by the Afghanistan Embassy in Canberra and in December 2018 he provided a new taskera with the registration number 30932476, issued on 15 December 2018 (TD, p 103).
Ms Stewart noted that the second taskera had been accepted by the Respondent as a legitimate document and that the information in both documents, allowing for the passage of time and one typographical error, largely matched.
In the notes of the Applicant’s ‘arrival interview’ conducted by Department officers in July 2010 after his arrival by sea at Christmas Island, against the question “Do you have any passports, identity documents, military or other papers which can prove your identity” the officer has noted ‘Taskira’ issued at Jaghori, and which is currently in Jaghori. There is a note that states ‘Request copy for next interview copy sent email or fax.”
The Tribunal had access to an audio file of the Applicant’s arrival interview in 2010. The sound quality is poor but a fair rendering of the exchange between the Interviewer and the Applicant is as follows:
Interviewer: We’ve got here that you have a taskera. Have you any other identity documents from Afghanistan or maybe from Pakistan?
Applicant: Not here, not here.
Interviewer: Not here, but back home?
Applicant: Before I have at home…but when I left…I don’t know whether…not. Because a few times our house came under attack. I’m not sure whether the documents are there or not.
Interviewer: Ok, you’re talking about the taskera or other documents.
Applicant: Taskera.
Interviewer: Ok, are there any other documents that can prove your identity back home?
Applicant: No.
Interviewer: Maybe you can get your mother to have a look for your taskera. Maybe she could send a copy to yourself by email or by fax,… it would be very handy to have.
Applicant: I will try….
Interviewer: It would be greatly appreciated because it will be requested in your next interview.
In his oral evidence, Mr Haidari said that he actually said at the interview that he had ‘something like a taskera at my school’. He expanded: “I said I have a document belonging to my school which is like a taskera which has my name and my father’s name.”
Mr Haidari’s evidence at the hearing is not corroborated by the audio file, where the Applicant clearly told the Department officer interviewing him that he had a taskera back at home and he would try and have his mother send it.
The Applicant accepted there was no date on the taskera he initially provided to the Department. He said his mother had provided this taskera to him. He had not given her any information because ‘Mum knows everything about me’, and he understood she had paid a fee to the local office to obtain the taskera. He accepted that the Department had been told by the Agency that it had not been issued by them, but the first he knew that it may not be a legitimate document was when he received this advice from the Department. Mr Sypott asked the Applicant whether he accepted that document fraud is commonplace in Afghanistan. He responded, “One hundred per cent. Probably they took money from my Mum and put it in their own pocket.”
When asked whether he was concerned when he gave it to the Department that there was no date on the taskera, the Applicant said, “To be honest, I didn’t look at this, I didn’t know… I just provided it.”
Consideration: the bogus taskera
The Tribunal accepts that the Applicant provided a document to the Department which was a bogus taskera. However, the Tribunal is not satisfied that, in so doing, the Applicant intended to provide a fraudulent document. The Tribunal notes that he was a minor at the arrival interview on Christmas Island, but it does appear that he stated that he did have a taskera ‘back at home’ and would try and have his mother provide it.
The significance of the bogus taskera is lessened by the fact that the Applicant subsequently obtained a taskera from the Afghanistan Embassy in Canberra and the contents of that document, which largely match the first (bogus) one submitted, is accepted by the Respondent as accurate.
Because of the fact that the Tribunal cannot be satisfied that the Applicant knowingly provided a document to the Department which he knew at that time was not a legitimate document, I cannot conclude that the provision of the bogus taskera, in all the circumstances, is determinative as adverse to Mr Haidari being of good character.
THE APPLICANT’S FATHER
In the record of a biodata interview held on 23 May 2010, under the part of the form relating to details of father, the Applicant’s father’s name is recorded and against the subheading occupation are the words ‘Last 2 years he is missing’ (TD, p 330).

However in the more extensive notes in the arrival interview on 6 July 2010 where the details of the Applicant’s father are recorded, against the question ‘Where is he living now’ there is the word ‘Missing’ which is struck through, and then the words ‘2 years killed’ (TD, p 339).
At TD, p 356, the following account of the arrival interview is recorded (as written):
When I was in Pakistan, some unknown people came to our house & ask me where I was & asking me about why I change my religion & they told anyone who change religion from Islam religion & talk against Muslims the punishment is execution.
ANY OTHER? Once before year 2008 I was put in jail together with my father b/c of change of religion. Your FATHER killed b/c of his political view? Yes b/c of his political view & b/c we both changed our religion. Killed or just missing? Killed. When? The 9^th month of 2008. What happened? He was going by his private car to Jaghori his car was stopped at Qarabagh [Qarah Bagh] & he was killed by Taliban & those political people associated with Taliban.
The Applicant made a statutory declaration on 18 October 2010 (TD, p 393) in support of his request for refugee protection under the Refugee Status Assessment process. In respect of his father, he declared at paragraph 4, “My father was killed several years ago”. He then declared, at paragraph 12, after referring to him and his father being arrested by local police, imprisoned and tortured (in around 2008):
“Some time after we were released my father was killed. He was going from Jaghori to Kabul in his private car and was killed in Qarabagh. I’m sure he was killed by Taliban…”
In 2011, the Applicant proposed his mother and three brothers for an offshore GSHV visa, as referred to above. In that application, the Applicant’s mother reiterates the claim that the Applicant’s father had been killed by the Taliban when travelling in his car (TD, p 445).
In 2017, as part of his application for citizenship, the Applicant completed a ‘Form 80’ containing personal particulars, which he provided to the Department (TD, p 51). Within this form he listed the name of his father and wrote ‘Deceased’ (TD, p 63). The Applicant signed the attestation on the form declaring that the information was complete, correct and up to date in every detail on 12 July 2017 (TD, p 67).
On 23 August 2021 the Department wrote to the Applicant inviting him to comment on adverse information. Relevantly, the letter set out the Applicant’s claim about his father being killed by the Taliban while on the road, and then stated:
However, the Department has information which suggests that your claims in relation to your father’s death are false. Specifically, a departmental investigation, which included social media checks, has revealed your father is not deceased as claimed. Namely, [sic] several posts on your brothers’ social media profiles show photographs of your father. These posts (which were accessed on 19 August 2021) are dated 22 March 2016, 22 April 2016 and 11 August 2017. In particular:
On 11 August 2017, your two brothers [names redacted] posted on their Facebook profiles the following photograph. One comment states “My dear father, may God accept your Hajj in the right path; God willing you will return safe and soundly (sic).”
The Applicant made a statutory declaration dated 7 September 2021 (TD, pp 161-167) in which he relevantly declared:
32 The information I gave about my dad was true. He was missing and I believed that he was dead, because that is what happened to Hazara people and people who were Hizb-e Wadat members in Afghanistan, who were missing for a long time.
…
37 He left our home, driving towards Kabul. That was the last I heard of him. He didn’t come back. He didn’t send a message that he was okay, or that he had been captured. Because it had been so long, I assumed that he had been killed. A lot of Hazara people were killed in Qarabagh because the Taliban had control of that area and you had to drive through it to get to Kabul.
…
39 I came to Australia in 2010. In 2011 I tried to sponsor my family for a humanitarian visa and my dad was still missing at that time. I believe that I told my lawyer that my dad was missing and I thought he was dead, because nobody had heard from him.
40 It wasn’t until 2014 that my dad came back. I remember when I found out he was alive – it was a big mix of emotions for me.
The Applicant provided a statutory declaration on 8 June 2022 in relation to these proceedings which is not signed (Exhibit A1). In it, he relevantly declared:
14 The Department officer believes that I lied when I told them that my father was missing. While I accept that I was wrong about what I told the Department at my entry interview and my Citizenship application, I did not purposefully tell a lie.
15 When I arrived in Australia, I believed that my father was dead. I was 16 years old at the time of that interview.
16 When my father was missing, I believed he was dead. He was known to the Taliban and in Afghanistan at that time. It was the logical conclusion to say that anyone who was missing was dead.
17 In my form 80 which I submitted to the Citizenship section, I said that my dad was dead even though at this time I knew he was alive. That was because I thought that all of the information in my forms had to be the same, and I had initially said he was dead so this was what I always had to write on my forms. I now know that this was not the right thing to do, but I didn’t have any legal advice from the time I was on Christmas Island until my current lawyer…
Consideration: the Applicant’s father
The Tribunal accepts that when the Applicant was initially interviewed on Christmas Island on his arrival in Australia in 2010 his father was missing. The Tribunal also accepts that the Applicant, in expressing the view that his father had been killed, was doing so in a genuine belief that this was likely (although he asserted it as fact to the interviewing officer). The Tribunal accepts that the Applicant, as a 16-year-old boy at the time, knew that many people in Afghanistan had been killed while travelling in the specific area that his father was when he last saw him, and that he knew the particular area was in the control of the Taliban and similar forces, and made an assumption that this was his father’s likely fate.
However, the Applicant’s evidence also is that he found out from his mother that his father was, in fact, alive in 2014. He nonetheless continued to assert to the Department that his father was deceased. In his oral evidence he said that he did not find out for sure that his father was alive until 2019. When pressed on this, he said he was not sure that photographs his brothers posted on Facebook were current. The Tribunal rejects this evidence.
The problem for the Applicant is that when he submitted the Form 80 in connexion with his application for citizenship, by his own admission he included information which he knew to be false. As he admits in his statutory declaration lodged in June 2022, “I said that my dad was dead, even though at this time I knew he was alive”.
When it is said that a person has lied, two elements are required. First, the person must have made (wrote or uttered) a statement that is not truthful. Secondly, the person must have known, at the time he or she made that statement, that it was not truthful. A person cannot be said to have lied if they say something that is subsequently found to be false, but which they did not know was untrue when they uttered it.
In this case, Mr Haidari perpetuated the falsehood that his father was dead in formal advice to the Department that he declared was true and correct. That action is significantly detrimental to a finding that he is of good character.
THE APPLICANT’S PARTNER
On 23 August 2021, the Department sent the Applicant an invitation to comment on adverse information. The Department noted that in forms completed in July 2017 relating to his citizenship application in response to the question, “Do you have a partner (partner includes wife, fiancé or girlfriend)?” the Applicant answered “No” (TD, p 61).
The Department noted it had information gleaned from the Facebook profile of a woman Roya Shukrulluh Amini suggesting that the Applicant and Ms Amini were engaged or married in July 2016 (at a time the Applicant was in Pakistan). Specifically, on 26 July 2016 Ms Amini posted a photograph showing a heart-shaped cake with the hands of a man and woman in the process of cutting it. A comment from the Applicant’s brother on the Facebook post said, “I congratulate my dear sister and my dear brother from the bottom of my heart on this happy celebration. May you grow old together.” (TD, p 126)
In his oral evidence, the Applicant said he has known Ms Amini since 2016 and they met in Pakistan. He then accepted that he had sent a remittance to Ms Amini two years before, in 2014 (STD, p 603). He said that in 2016 his mother suggested he and Ms Amini should marry.
Mr Haidari was asked if they had a wedding ceremony. He responded: “Just a small wedding ceremony. Two families attended. Her parents and my Mum.” When asked about the heart-shaped cake, the Applicant responded, “Yes. I considered myself engaged after this ceremony.”
Mr Haidari said that Ms Amini did not live with his family but resided with her own parents. He added, “The only time I said to Roya to go and live with my family was when I completed humanitarian visa applications. Just for a few days.”
The Applicant was then asked why he ticked ‘No’ to the question in the Form 80 he completed in July 2017, the Applicant responded, “Because we didn’t get married.” When pressed as to why he did not put down Ms Amini’s name as his fiancée, he responded, “Because we aren’t married.” Mr Sypott then pointed out that the Form 80 specifically notes that ‘partner’ includes a fiancée. Mr Haidari then said, “Maybe I got confused.”
At TD, p 536 is a statement the Applicant made in support of his sponsorship for offshore GSH visa. He relevantly said,
“[Brother’s name redacted] is currently living with my family, his wife, two kids, my father, my mother and my wife.”
(Emphasis added.)
When asked why he used this term, the Applicant said, “Because I ticked the box, I used the same terminology.”
The Respondent also drew the Applicant’s attention to his mother’s application form for a GSH visa (TD, p 524) where, in the part of the form relating to dependent family members, his mother had listed ‘Roya Haidari’. Under ‘relationship status’ the box marked ‘Married religiously’ is ticked. In the box headed ‘Precise relationship to the main applicant’ the following is written: “DAUGHTER IN LAW – ROYA is married to my son Shukrullah and she is my daughter in law.”
The Applicant’s response to this at the hearing was, “My Mum – she’s thinking she [Roya] is my wife.”
In written submissions, Ms Stewart noted that the Respondent conceded that the Applicant and Ms Amini did not have a formally registered marriage. She asserted, on behalf of Mr Haidari, that unless a marriage is registered with the Afghanistan Government it is not accepted under the Marriage Act 1961 (Cth) (s 88G, which concerns marriages alleged to have been solemnised in or under the law of a foreign country). Ms Stewart contended that the definition of ‘partner’ is objective and a particularly western concept.
Consideration: the Applicant’s partner
The Applicant has clearly provided ambiguous information about Ms Amini and their relationship. It is clear that he went through a ceremony with Ms Amini in Pakistan in 2016 which he himself described as a ‘small wedding’. Equally it is true that he then returned to Australia, and that he and Ms Amini have not cohabited, nor has she resided except, on his evidence for a short time, with his family. She remains living with her own family.
The Tribunal accepts, notwithstanding Mr Haidari’s own use of the terminology ‘wedding’ and ‘wife’ that there is no evidence of any marriage being solemnised between the Applicant and Ms Amini. However, the question in the Form 80 is deliberately couched to cover the field of any person who is in the role of a domestic partner, whether spouse or de facto or girlfriend or ‘significant other’ (whatever that last phrase means). It can be concluded that the intention of the Department in framing the question this broadly was to include any person who might be in that category, however the union might or might not have been formalised in law.
I am satisfied on the evidence that Ms Amini is the Applicant’s fiancée. I am satisfied that he should have included her details in his citizenship application when asked about his partner. However, given the particular circumstances of this relationship – the fact that the Applicant and Ms Amini are residing in different countries and have not moved to formalise their union, although it would have been more accurate for Mr Haidari to have answered this question more comprehensively, I am not satisfied that this by itself is determinative of conduct that is not of good character.
THE APPLICANT’S RELIGIOUS BELIEFS
Ms Stewart submitted that the Applicant is no longer a Muslim and has explored Christianity.
In his evidence in chief, the Applicant said he believed in Christianity. He said that his religion in Afghanistan was ‘forced’ and, “I am a Christian.” When Ms Stewart asked Mr Haidari whether he attended church in Australia, he responded, “I went once. I will learn through the Bible.”
Ms Stewart asked the Applicant whether he converted to Christianity before he came to Australia. He responded, “Through my Dad.” She then pressed him and asked whether he actively did anything to become a Christian, or if he is still a Muslim. He responded, “I’m not a Muslim.”He said his father told him when he went back to see him in Pakistan that he was “100 per cent Christian.” He then said he had not spoken to his father since 2019 because he had a stroke and brain surgery which led to a loss of hearing and “now he can’t walk or talk, Mum is looking after him.”
Mr Sypott then referred to photographs of the Applicant’s father on Facebook with references to him undertaking the Hajj. He responded, “My Dad never went to Mecca. He never told me he had.” He said he believed his father was still a Christian.
In an October 2010 statutory declaration, the Applicant wrote that while he was with his father in Pakistan in 2008, they visited a Christian office in Quetta. He said he learnt about Jesus and the Holy Spirit, and he and his father decided to convert to Christianity. He said after six months they returned to Jaghori and (TD, p 394):
“we were threatened by religious leaders. The religious leader in Jaghori found out we had converted. I don’t know how they found this out. When we got back to Jaghori we talked about Christianity to some people we knew in Sang-e-Masha. A short time after we returned they ordered our arrest. According to Islam conversion is punishable by death. My father and I were arrested by the local police from our home. We were taken to the District Centre prison. We were tortured during the two months we were held in prison. We were beaten and they would pour cold water on us. They also made us pray. My father and I were held in the same room. After two months we had to sign a declaration that we would not talk about Christianity or social justice. There was warning that if we spoke about these things again, that we would be executed.”
In a statutory declaration dated 7 September 2021, the Applicant declared (TD, p 164):
29 I do not consider myself a Muslim. I converted to Christianity in 2008 with my dad because I wanted to be free. I didn’t want to be told when to pray or what I could not eat. I don’t hate Muslims – I am part of the Hazara community in Melbourne and I know many people who are Shi’a Muslim – it’s just not what I want. I don’t pray and I don’t go to Mosque. I don’t need to do that in my life.
30 I probably do not have any religion, and Roya knows this, but she is still a practising Muslim.
31 Roya says she is okay with me not being Muslim because I’m in Australia and it’s different here…
In his most recent statutory declaration dated 10 July 2023 (Exhibit A2), the Applicant wrote:
27 When I left Afghanistan I said I wanted to be a good person and I was happy to learn about all religions and then make a decision about what religion I would practice.
28 I chose to explore Christianity because it’s not a forced religion like Islam is. There are too many obstructive rules to Islam. Christianity doesn’t limit anything.
29 I have not been baptised, but I went to a Church in Oakleigh, to find out how to participate and to see what I would have to do to practise that religion. The Church was a Greek Orthodox Church and I was invited to go by a customer of mine, who was Greek….
30 I cannot speak for my father’s religious beliefs. I have not spoken to my dad face-to-face in a long time and he is very unwell now – too unwell for me to have a meaningful conversation with him. It makes me very sad to know I probably won’t be able to have a meaningful conversation with him.
Under cross-examination, the Applicant was referred to a statement he wrote (TD, p 536) in which he wrote “I am a Shia Muslim.” He responded, “Someone was helping me. I didn’t want her to know I am Christian. I wanted to hide it from the community.”
Consideration: the Applicant’s religious beliefs
The Tribunal does not believe that the Respondent has succeeded in making a case that the Applicant’s various statements about his religious beliefs reflect adversely on his character. It is important, in any examination of statements of this kind, to keep in mind that sometimes a person can be talking about religion in a cultural sense, rather than in an adherent sense.
The Tribunal has no corroboration that the Applicant’s father converted to Christianity in 2008; it may well have been the case, but the indications from the Facebook posts more recently that his father may have been intending to embark on the Hajj (even if he was not ultimately able so to do) would tend to support that Mr Haidari’s father is, currently, an adherent Shi’a Muslim.
The Tribunal accepts the Applicant’s evidence that some elements, not so much of Islam itself, but in how it was enforced by the Taliban and others, led him to develop a negative attitude towards that religion, and to explore alternatives where he thought there might be more opportunities for freedom of expression. However, the Tribunal considers that Mr Haidari’s statement that he “probably does not have any religion” is truthful.
The Tribunal does not conclude that there is anything that would be determinative in a finding that the Applicant is not of good character in terms of his religious beliefs and what he has said about them since coming to Australia in 2010.
OTHER EVIDENCE
The Tribunal also heard from two witnesses, a community leader Mr Jawid Alizada, and the Applicant’s current employer, Mr Corey Joyce.
Mr Alizada spoke highly of the Applicant in his support for the Hazara community and said he had known him for many years and believed he was of good character. Mr Alizada said that the Applicant, “was always working hard. He is polite and stays away from drugs and alcohol.” He described Mr Haidari was “one of our young role models, who shows a real work ethic.”
Mr Joyce provided a written letter of support. He runs a painting contracting firm and reiterated that his view was that Mr Haidari was a person of the highest level of integrity, describing him as “our best employee”. Mr Joyce said he had known the Applicant for five years, and throughout that time Mr Haidari had been a supervisor who was completely trustworthy and reliable. He said he would support Mr Haidari becoming an Australian citizen.
CONCLUSION
The Tribunal considers that there are many features of the Applicant which do him great credit. The evidence supports that he is hard-working and has built a solid reputation in Australia since arriving as a teenager. He has paid taxes and contributed positively to the nation. There is also evidence, which was not disputed by the Respondent, that he has been active in the voluntary sector, especially in support of the Hazara community.

However, the Tribunal must return to the distinction between repute and character. The regrettable fact is that the Applicant made statements to the Department which he knew, when he made them, were not truthful. These were relatively recent statements in an environment where he had ample time to correct the record. Because of this, and his own frank admission that he provided information to the government that was false, the Tribunal cannot be satisfied that he is of good character, as is required under s 21(2)(h) of the Act. This logically leads to the Tribunal deciding that the preferable decision is to affirm the decision under review.
However, there is a clear pathway for the Applicant. While accepting he faced a very long (unacceptably long) delay from when he lodged his application for citizenship to when he received a decision, a part of the reason for the elongated process was because of his lack of candour, and inconsistent information he provided. His immigration status as a permanent resident of Australia is not affected by this decision, and he is free to make a fresh citizenship application. If he chooses to do so, he must be completely honest and disclosive in all the information he provides in support of it.
DECISION
Pursuant to s 43(1)(a) of the AAT Act, the Tribunal affirms the decision under review.

1.       I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

2.

..............................[SGD]..........................................
Associate
Dated:   18 September 2023

Date of hearing:

29 August 2023

Applicant  Shukrullah Haidari
Advocate for the Applicant:               Ms Lauri Stewart
Solicitors for the Applicant:                Stewart Administrative & Migration Lawyers
Advocate for the Respondent:           Mr Keith Sypott
Solicitors for the Respondent:           The Australian Government Solicitor

[2023] AATA 2986

18 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Intention