Hasan and Minister for Immigration and Border Protection (Citizenship)

[2016] AATA 470

Hasan and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 470 (4 July 2016)

Division	GENERAL DIVISION
File Number	2015/3484
Re	Kamrul Hasan
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member A F Cunningham
Date	4 July 2016
Place	Sydney

The decision under review is affirmed.

..................[sgd]......................................................

Senior Member A F Cunningham

CATCHWORDS

CITIZENSHIP - whether applicant of good character - identity fraud - fraudulent and misleading information in dealings with government - lack of insight and remorse - no evidence of rehabilitation - decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Australian Citizenship Act 2007 (Cth) s 21(2)
Australian Citizenship Act 1948 (Cth)

Migration Act 1958 (Cth)

CASES

Chen and Minister for Immigration and Citizenship (2007) AATA 1815

Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115
Irving v the Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Re-Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Australian Citizenship Instructions, February 2015

REASONS FOR DECISION

Senior Member A F Cunningham

4 July 2016

1. The applicant is a 32-year-old citizen of Bangladesh and currently holds a Partner (Migrant) (class BC) (subclass 100) visa that was granted on 24 December 2013 (permanent partner visa). The applicant’s application for Australian citizenship lodged on 12 January 2015 was refused by a delegate of the respondent Minister on the basis that he was not of good character at the time of the decision. The applicant now seeks a review of that decision by the Tribunal.

2. The applicant appeared on his own behalf and gave oral evidence at the hearing. Ms Krishnan appeared on behalf of the respondent Minister. The T-documents were tendered in evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth). The applicant submitted a statement in support of his application for review which was received in evidence. Also tendered were several character references which were signed but not in the form of statutory declarations.

   BACKGROUND

3. Submitted with the applicant’s application for Australian citizenship was a copy of a birth certificate issued by the Office of the Registrar of Birth and Death, Dhaka Bangladesh on 16 November 2009 in the name of Kamrul Hasan, born 5 May 1984; a copy of a passport issued on 10 November 2009 with the same name and date of birth; and an NAB bank statement in the name of Kamrul Hasan; and a copy of a “Change of Name and Date of Birth Deed” dated 10 July 2009 which records that the applicant relinquished his former name and date of birth (Kazi Kamrul Hasan, 5 July 1984), and assumed his current name and date of birth.

4. By letter dated 11 February 2015, the Department of Immigration and Border Protection (Department) wrote to the applicant advising that it had become aware of adverse information regarding an omission of guilt relating to identity fraud in December 2013 and inviting the applicant to comment, provide an explanation or provide additional information addressing the adverse information.

5. On 24 February 2015 the applicant responded stating that he did not have a criminal record and that he had previously provided all relevant information including a change of name deed and a police clearance certificate. The National Police Certificate included in the T-documents certifies that there are no disclosable court outcomes recorded against Kamrul Hasan or the name by which the applicant was formerly known, Kazi Kamrul Hasan.

6. The Delegate noted in her decision of 1 July 2015 that the applicant was first granted an Australian temporary visa on 02/03/2004 in the name of Hasan, Kazi Kamrul. He maintained this name until 27/10/2010 when details were amended on departmental systems. In the assessment of the applicant’s permanent residence application dated 20/12/2013 there is information relating to “ID Fraud admission by applicant - Applicant provided change of name by deed poll from Bangladesh dated 10/7/2009.” The basis of the delegate’s refusal of the application for citizenship was a finding that identity fraud was part of an ongoing pattern of behaviour by the applicant over a substantial period of time which suggests that he is not of good character.

7. The delegate noted that the applicant had not provided any information to indicate that there were any extenuating circumstances relating to his identity fraud nor had he provided information indicating that he had accepted responsibility or shown remorse for his conduct. The applicant had failed to provide any character references. The applicant had not provided any information regarding his current circumstances, employment or status in the community which all weighed against him being of good character in the view of the delegate. Accordingly, the delegate could not be satisfied that the applicant had a good reputation in the community at the time of the decision.

   ISSUES

8. The sole issue for the Tribunal to determine is whether the applicant is of good character pursuant to section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) which provides as follows:

   (2) a person is eligible to become an Australian citizen if the Minister is satisfied that the person:

   …

   (h) is of good character at the time of the Minister’s decision on the application.

   MEANING OF GOOD CHARACTER

9. Senior Member McCabe (as he then was) said relevantly in Chen and Minister for Immigration and Citizenship (2007) AATA 1815 at paragraph 18 “The wording of the test is important. It does not require that the Minister form an adverse view of the applicant’s character. The Minister must be positively persuaded that the applicant is of good character.…”

10. The Tribunal went on to consider the wording of the character test in the Migration Act 1958 (Cth) and in the Australian Citizenship Act 1948 (Cth) noting that the former Act requires a positive finding that the visa holder is not a person of good character whereas the Citizenship Act requires a positive finding that the applicant is a person of good character. At paragraph 21 the Tribunal stated the following:

    “Where evidence raises a question in the mind of the decision-maker over the fitness of the applicant, it is incumbent on the applicant to adduce evidence that will enable the Minister (or the Tribunal upon review) to conclude that the person is of good character notwithstanding the questions that were raised. It may not be possible to answer the allegations directly- for example, by comprehensively disproving the allegations- but the decision-maker must be provided with a level of comfort about his or her decision.”

11. As Lee J pointed out in Irving v the 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 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 proved as a fact whilst 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.”

12. The Tribunal was referred to the Australian Citizenship Instructions (the Instructions) which are departmental policy and issued pursuant to the Citizenship Act to provide policy guidance in relation to the interpretation of the exercise of powers under the Act and the regulations. Decision-makers and thus the Tribunal in this case will ordinarily apply policies such as the Instructions unless the application produces an unjust decision in the circumstances of the particular case (Re-Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634). However, the overarching principle is that the Tribunal must make an independent assessment on the material before it (Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115 (at 59)). The Instructions were replaced on 1 June 2016 with the Citizenship Policy (the Policy) however the guiding principles in Chapter 11 in relation to the assessment of good character essentially remain unchanged.

13. The Policy sets out a non-exhaustive list of characteristics to be considered in the assessment of the person’s good character which in this case relevantly include:

    An applicant of good character would:

    ·     respect and abide by the law in Australia and other countries

    …

    ·     be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example…

    ·     providing false personal information (such as fraudulent work experience or qualifications documents) or other material deception during visa and citizenship applications…

14. Mitigating factors to be considered once the behaviour of the applicant has been assessed relevantly include whether the applicant has accepted responsibility and shown remorse, has the applicant rehabilitated himself, whether there were any extenuating circumstances relating to the conduct.

    CONSIDERATION

15. The identity fraud referred to by the Delegate in her decision relates to the Partner Visa application lodged by the applicant on 11 January 2010, some six months after he had formerly changed his name and date of birth. In that application, the applicant referred to himself using his new name and date of birth. A copy of the application is contained in the supplementary section 37 documents (form 47SP at T1).

16. In response to question 9 which asked “Have you or any dependent family members (migrating with you or not) previously been to Australia, held or currently hold a visa for travel to Australia?” The applicant answered “no”. The applicant provided no response to question 14 which asked “Other names you are, or have been, known by (including name at birth, previous married names, aliases)”. Question 82 asked the applicant to list countries that he had lived in for 12 months (in total) or more during the last 10 years. The applicant indicated that he had lived at the same address in Bangladesh between 05 1984 and 2009.

17. At T5, pages 60 to 61, movement records for the applicant indicated that he had travelled extensively to and lived in Australia between 2004 and 2008.

18. The applicant was subsequently granted a Partner (Provisional) (Subclass 309) visa on 6 October 2010. On 14 December 2011, the applicant submitted a fresh form 80 in support of his application for a Partner (Permanent) Visa, copy of which is contained in the supplementary T-documents at pages 52-59 (T4). In this application the applicant did not refer to his previous name or previous travel to, and residence in Australia prior to October 2010.

19. On 9 October 2012 the Department wrote to the applicant advising that in the course of assessing his application for a permanent partner visa, the Department had been made aware that he may have provided incorrect information in the form of another name and date of birth. A file note dated 10 January 2013 records a conversation with the applicant in which he confirmed his change of name and rectification of his date of birth. He was asked to obtain an NPC from Bangladesh in his previous name and also in Australia under the two identities.

20. On 21 August 2013 the applicant provided a copy of the change of name and date of birth deed and on 24 December 2013 the Department granted his partner (permanent) visa.

21. The applicant was asked in cross-examination the reason for his change of name and he responded that he had an issue with his grandparents who had kicked him out of their house in Bangladesh when he returned after his studies in Australia. As a result of this altercation and because he was angry with his family, the applicant decided to drop the family name “Kasi” from his name. The applicant explained that his date of birth had been incorrectly entered in his birth certificate which was rectified in his Change of Name and Date of Birth Deed.

22. The Tribunal has no reason to doubt the applicant’s reasons for the application for his change of name and there is no evidence or suggestion of him having committed an identity fraud offence. What is of relevant concern is the applicant’s failure to correctly answer questions in his two partner visa applications and the lack of acknowledgement by him of the importance of correctly and honestly completing this documentation.

23. The applicant did not dispute that he had incorrectly answered these questions in the manner outlined above. The applicant accepted the movement record of his arrivals and departures from Australia and he agreed that he had lived in Australia for a period of three years but failed to disclose this period of residence. His explanation to the Tribunal for incorrectly answering the questions relating to his identity and residence was his concern that his student visa may be cancelled. The applicant agreed that he had worked in Australia between 2004 and 2008 but had not provided these details in his application form. He explained that his student visa permitted him to work a maximum of 20 hours per week and he had been advised by others not to include the details of his work in Australia because it may compromise his student visa. In answer to question 23 in form 80, the applicant only provided details of his work in Bangladesh despite the question requiring details of employment history for the entire period since leaving school until the present, including periods of unemployment.

24. In response to question 24 of form 80 with respect to the applicant’s application for migration to Australia by a partner visa, the applicant failed to list details of his study in Australia despite the question requiring details of his education history for the entire period since leaving high school. The reason given by the applicant was that he would have had to disclose his previous name. The applicant said he was concerned that he would not be granted another student visa if his change of name had been discovered by the Department.

    FINDINGS

25. Whilst the applicant has provided reasons for his failures to correctly and honestly answer a number of the questions in the documentation accompanying his visa applications, the Tribunal considers that his conduct evidences a pattern of dishonest behaviour in his interactions with the Department. His responses to questions put to him in official government documentation is either untruthful, misleading or fraudulent. The applicant gave no indication during the course of the hearing that he acknowledged the seriousness of his conduct and nor is there any evidence of rehabilitation. The fraudulent conduct of the applicant spanned a period of roughly 2 years and the matter was only brought to light because the Department was made aware of the fraud through other sources.

26. Several character reference statements submitted by the applicant attest to the applicant’s personal qualities and whilst several of them acknowledge his honesty and integrity, none of the statements refer to the issues of dishonesty that are before the Tribunal. It is also notable that none of the statements are in the form of statutory declarations which would give them greater evidentiary weight.

27. It is the applicant’s responsibility in these cases to provide sufficient evidence that he has acknowledged his transgressions, accepted responsibility, shown remorse and rehabilitated himself. On the basis of such evidence the Tribunal may be comfortably satisfied that the applicant at the time of the decision was of good character within the meaning of the Act.

28. In this case however, whilst the applicant has admitted his deception in his dealings with the Australian Government, the Tribunal is not satisfied that he has provided the evidence referred to above such as to demonstrate his good character. Indeed, the evidence from the applicant suggests that he lacks insight into the seriousness of the misleading information that he provided the Government.

29. For the reasons above the Tribunal determines to affirm the decision under review.

I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A F Cunningham.

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Associate

Dated 4 July 2016

Date of hearing	7 April 2016
Date final submissions received	7 April 2016
Applicant	In person
Solicitors for the Respondent	R Krishnan; Australian Government Solicitor