Hassani and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 1
•4 January 2018
Hassani and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1 (4 January 2018)
Division:GENERAL DIVISION
File Number: 2017/2303
Re:Amin Hassani
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:4 January 2018
Place:Brisbane
The Tribunal affirms the decision under review.
........................[Sgd]................................................
Member D K Grigg
CATCHWORDS
CITIZENSHIP – cancellation of approval to grant citizenship – whether applicant of good character – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Hneidi And Others v Minister for Immigration And Citizenship (2010) 265 ALR 292
Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022
Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27Minister for Immigration and Border Protection and Abdula Azimi [2016] AATA 722
SECONDARY MATERIALS
Australian Citizenship Instructions Citizenship Policy (2016, Cth)
REASONS FOR DECISION
Member D K Grigg
4 January 2018
INTRODUCTION
Mr Hassani was born in Afghanistan in a small village and is a citizen of the Islamic Republic of Afghanistan.
Mr Hassani told the Tribunal he had only had 6 years of schooling and had no formal schooling in English. While in Afghanistan he worked with his father in a shop. He left Afghanistan for Pakistan sometime before 2008.
Mr Hassani arrived in Australia illegally by boat, via Pakistan and Indonesia, on 23 September 2009, and was granted a Protection Visa.[1]
[1]Exhibit 11, T Documents, T4, pages 52-53, Identity Assessment Report.
On 18 November 2009 Mr Hassani became a permanent resident in Australia[2] and in 2012 attempted to sponsor, via a Global Special Humanitarian Visa application, his mother and seven of his siblings, who currently live in Indonesia, to come to Australia. The sponsor application was refused.[3]
[2]Exhibit 11, T Documents, T3, page 32, Application for Australian Citizenship dated 24 September 2014.
[3]Exhibit 11, T Documents, T4, pages 52-53, Identity Assessment Report.
He started his own tiling subcontractor business in 2012. In 2013 he married his wife, who currently lives in Pakistan, and they have no children. Mr Hassani financially supports his family in Indonesia and recently bought a large 7-bedroom house because he wants to sponsor his whole family to come to Australia and live with him.
On 24 September 2014 Mr Hassani applied for Australian citizenship.[4] On 14 January 2015 Mr Hassani lodged an application for Conferral of Citizenship[5] which was approved on 11 March 2015.[6]
[4]Exhibit 11, T Documents, T3, page 31, Application for Australian Citizenship dated 24 September 2014.
[5]Exhibit 11, T Documents, T4, page 53, Identity Assessment Report.
[6]Exhibit 11, T Documents, T8, page 76, Notice of intention to cancel the approval of an Australian citizenship application dated 28 April 2017.
In April 2016 Mr Hassani was stopped at Brisbane International Airport on his arrival in Australia from Pakistan and his bags were searched. Mr Hassani was found to be carrying an Afghan driver’s licence which was blank but contained a photo of his friend Mr Ali Mohamadi. Mr Hassani told the Australian Border Force officers that the Afghan licence was given to him by a friend in Pakistan to give to his friend Mr Mohamadi.[7]
[7]Exhibit 11, T Documents, T4, page 56, Identity Assessment Report; T4, page 58, Border Force Interview Report. In July 2016 Mr Mohamadi, a British citizen, was granted a Temp Work (Skilled) Principal Applicant Onshore Visa and was sponsored by Mr Hassani’s Uncle, Mr Hameed Hassani.
An identity interview was conducted in September 2016. The officer who prepared the report concluded that Mr Hassani’s identity was supported but that he had knowingly brought in a fraudulent licence. The officer also recorded that Mr Hassani said he previously had an Afghan driver’s licence but that it was destroyed.[8]
[8] Exhibit 11, T Documents, T4, page 55, Identity Assessment Report.
On 27 January 2017, following the identity interview, Mr Hassani was advised by the Department of Immigration and Border Protection (“DIBP”) that it intended to cancel the approval of Mr Hassani’s citizenship application.[9] On 21 February 2017, Mr Hassani provided the DIBP with character references, the Afghan driver’s licence, a statutory declaration of himself, and a response from his then representative, Arc Visa & Migration.[10] Mr Hassani disputed being aware that the licence was fraudulent when he brought it into the country.[11] Mr Hassani also stated in his statutory declaration that he had been unable to produce his own Afghan driver’s licence because he had thrown it away after it had become damaged. Mr Hassani declared that he had obtained his Australian driver’s licence legitimately by undertaking the required tests.[12]
[9]Exhibit 11, T Documents, T5, page 59, Letter from Arc Migration to DIBP dated 20 February 2017.
[10] Exhibit 11, T Documents, T2, page 18, Decision Record dated 28 March 2017.
[11] Exhibit 11, T Documents, T5, page 60, Letter from Arc Migration to DIBP dated 20 February 2017.
[12]Exhibit 11, T Documents, T5, page 66, Statutory Declaration of Amin Hassani.
On 28 March 2017 the DIBP seized the Afghan driver’s licence pursuant to section 45B(1) of the Australian Citizenship Act 2007 (“the Act”) on the basis that it was reasonably suspected that it was a “bogus document”, as defined in section 5(1) of the Migration Act 1958 (Cth) (“Migration Act”), being a document that was counterfeit. As a result, the Afghan driver’s licence document was deemed to be forfeited to the Commonwealth under section 45A(2) of the Act.[13] Mr Hassani was also advised on 28 March 2017 that the approval for his Australian citizenship application by conferral had been cancelled under section 25(2)(b)(iii) of the Act on the grounds that he was not of “good character” because he (“DIBP Decision”):[14]
(a)brought a fraudulent driver’s licence into Australia; and
(b)destroyed the only document he had (i.e. his Afghan driver’s licence) which could have supported and established his identity.
[13]Exhibit 11, T Documents, T6, pages 69-70, Notice of seizure of bogus documents under Australian Citizenship Act 2007, section 45B(2) dated 28 March 2017.
[14]Exhibit 11, T Documents, T2, pages 12-13, Notification of decision to cancel the approval of an Australian citizenship application and decision record dated 28 March 2017; T8, pages 76-79, Notice of intention to cancel the approval of Mr Hassani’s Australian citizenship application incorrectly dated 28 April 2017
On 21 April 2017 Mr Hassani sought a review of the DIBP Decision by this Tribunal.[15]
[15]Exhibit 11, T Documents, T1, pages 4-11, Application for Review of Decision dated 21 April 2017.
ISSUE FOR DETERMINATION
The issue for determination by the Tribunal is whether Mr Hassani is 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.
LEGISLATIVE REQUIREMENTS
Pursuant to section 25 of the Act, the Minister may, relevantly, cancel an approval given to a person to become an Australian citizen if the person:
(a)has not become an Australian citizen under section 28 (section 25(1)(a)); and
(b)is not of good character (section 25(2)(b)(iii)).
If the Minister cancels an approval given to a person, the approval is taken never to have been given and the person will need to make another application if the person wants to become an Australian citizen: section 25(5) of the Act.
In Grass v Minister for Immigration and Border Protection [2015] FCAFC 44 (“Grass”) the Full Federal Court explained that section 25 of the Act:
[58]…is designed to empower the Minister to revisit the citizenship approval previously granted. Relevantly, s 25(1)(b), read with s 25(2), is designed to empower the Minister to revisit a person’s satisfaction of the eligibility criteria, presumably because of the receipt of new or different information, or to correct administrative error in the approval process.
Mr Hassani had not become an Australian citizen at the time of the cancellation of his citizenship approval, and therefore satisfies section 25(1)(a) of the Act. The issue is whether Mr Hassani is “not of good character”.
IS MR HASSANI “NOT OF GOOD CHARACTER”?
What does “not of good character” mean?
The term “good character” is not defined in the Act.[16] The Full Federal Court in Grass noted that the absence of a definition meant that:
[60] … Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion. This appeal does not raise for consideration the proper construction of the term “good character”, but it is important to note the absence of a definition and, again, the legislative decision to leave room to the repository of the cancellation power to reconsider a range of events and conduct connected with the person who has been granted a citizenship approval.
(my emphasis)
[16]Unlike in the Migration Act where section 501(6) sets out a list of matters which result in a person not passing the “character test” and being exposed to having her or his visa cancelled under the Migration Act; Grass v Minister for Immigration and Border Protection [2015] FCAFC 44, at [60].
The Minister referred the Tribunal to the Citizenship Policy (2016) which provides guidance on the interpretation of, and the exercise of powers under, the Act. The Tribunal is not bound to apply the Citizenship Policy but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[17]
[17]Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
Brennan J explained the relevance of an adopted policy to decision-making in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 (“Drake (No 2)”):
Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
The Full Federal Court in Hneidi And Others v Minister For Immigration And Citizenship (2010) 265 ALR 292 set out the four propositions which emerge from Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (“Drake”) when considering the entitlement of an administrative decision-maker to take into account a statement of governmental policy:
[41] …The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account “government policy”. Thus, where the tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.
[42] Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
[43] Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the tribunal. That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
[44] Fourth, the borderline between cases in which the Tribunal has abdicated its functions to those of an unthinking application of “government or Ministerial policy” to the facts may sometimes be blurred. But where the Tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:
“… it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion.”
In Drake, Brennan J (as President of the AAT) noted that:
“… 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”[18]
“The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[19]
Further, consistency with comparable cases and decisions is “[o]ne of the factors to be considered in arriving at the preferable decision… and one of the most useful aids in achieving consistency is a guiding policy.[20]
[18]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
[19]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
[20]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643.
The Tribunal is not aware of any “cogent reason” why it should not take the Citizenship Policy into consideration.
Chapter 11 of the Citizenship Policy provides guidance on the administration of the “good character” provisions under the Act and to define, for administrative purposes, the meaning of “good character”. In summary the Citizenship Policy advises that “good character” is to be objectively assessed by reference to “enduring moral qualities” such as being able to distinguish right from wrong, and behaving ethically, legally and honestly in accordance with Australian rules and values. The Citizenship Policy provides more fully as follows:
“It is not departmental policy for decision makers to be bound by a check-list. 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.”[21]
[21]Citizenship Policy (2016) Chapter 11, page 144.
“Most cases have adopted the following 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 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.
In this context, ‘moral’ does not have any religious connotations. The phrase ‘enduring moral qualities’ encompasses the following concepts:
·characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.
In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application (at [8]):
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State.”[22]
[22]Citizenship Policy (2016) Chapter 11, page 145.
“Drawing from the definition outlined in Definition of good character, an applicant of good character would:
· respect and abide by the law in Australia and other countries
· be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)
· be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
·providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
·involvement in bogus marriage
·concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship
·involvement in Centrelink or Australian Tax Office fraud
·giving false names and/or addresses to police
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia
·not have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people
·not have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide
·not be the subject of any extradition order or other international arrest warrant
·not be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and
·not be the subject of any verifiable information causing character doubts.”[23]
[23]Citizenship Policy (2016) Chapter 11, page 147.
“In weighing up the various factors, the decision maker must not apply their own personal standards, but must apply community standards. Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
·would a person of good character have behaved the way the applicant did
·what is there to demonstrate that the applicant has upheld and obeyed the law
·has the applicant behaved in accordance with Australia's community standards
·does the applicant share Australia’s democratic beliefs and respect its rights and liberties.”[24]
(my emphasis)
[24]Citizenship Policy (2016) Chapter 11, pages 149-150.
The main circumstances which the Minister contends give rise to a finding that Mr Hassani is not of good character are:
(a)Mr Hassani’s use of a fraudulent Afghan driver’s licence to circumvent the Government requirements for an open licence;
(b)the carriage of a fraudulent blank driver’s licence from Quetta, Pakistan, into Australia on behalf of Mr Mohamadi; and
(c)Mr Hassani’s conduct with the DIBP regarding his purported driver’s licence and the licence for Mr Mohamadi.
Mr Hassani’s Purported Afghan Driver’s Licence
At his identity interview in September 2016 Mr Hassani told the DIBP that:[25]
(a)he had never been issued with an Afghan taskera or passport;
(b)he had previously held an Afghan driver's licence, which he obtained when he was 18 years old;
(c)he left that Afghan license in Afghanistan and it was sent to him in Australia in 2011;
(d)he discarded his Afghan driver's licence because it was water damaged; and
(e)he was able to obtain his Afghan driver's licence on the basis of an identity certificate that was issued by his school, however he does not have this school certificate because it was taken by the licensing authority in Afghanistan.
[25]Exhibit 11, T Documents, T4, page 55, Identity Assessment Report; Exhibit 11, T Documents, T2, page 20, Decision Record dated 28 March 2017
During his entry interview on Christmas Island on 11 October 2009 (and in the form he completed regarding his personal particulars),[26] Mr Hassani declared that he did not possess any identity documents and made no reference to previously being issued with an Afghan driver’s licence.
[26]Form 80 - Personal Particulars for character assessment, dated 23 October 2009.
Despite the DIBP’s expressions of concern regarding his lack of identity documentation, and repeated requests for Mr Hassani to provide evidence of his identity, he did not do so. Mr Hassani never provided the DIBP with a copy of his Afghan driver’s licence which he says was sent to him in Australia in 2011.
Mr Hassani admits he used his purported Afghan driver’s licence to progress directly from his learners driving permit to an open driver’s licence, bypassing the provisional licence requirements. The issue is whether the Afghan licence Mr Hassani presented to the Queensland Department of Transport was genuine or fraudulent and, if fraudulent, whether Mr Hassani knew.
In a written statement Mr Hassani says:[27]
It was well known in the community that if someone had a Driver's licence from overseas, they could progress from the "L" Plates directly to an Open licence, without needing to drive with P Plates.
[27]Exhibit 9, Statutory Declaration of Mr Amin Hassani dated 20 July 2017, para 12.
Mr Hameed Hassani, an employer of Mr Hassani, confirmed that many young men in the Afghan community have made the same mistake as Mr Hassani.[28]
[28]Exhibit 12, Statutory Declaration of Mr Hameed Hassani dated 20 July 2017, para 8.
Mr Hassani says because he was aware of what others in his community had done to circumvent requirements they would otherwise have been subjected to, he decided to do the same thing and asked his mother, who at that time was still living in Pakistan, to get him an Afghan driver's Licence.[29] Mr Hassani says his mother sent him an Afghan driver’s licence which had his name and date of birth to him in December 2011. He then took that licence and presented it to the Department of Transport who in turn gave him his open licence. Mr Hassani had already sat and passed his learner’s tests at that stage.
[29]Exhibit 9, Statutory Declaration of Mr Amin Hassani dated 20 July 2017, para 13.
Mr Hassani told the Tribunal he was able to drive in his village in Afghanistan and that a licence to do so was not required. Mr Hassani says he did not know anyone who had a driver’s licence except his father, who needed it to be able to go to the city for supplies.[30]
[30]Exhibit 9, Statutory Declaration of Mr Amin Hassani dated 20 July 2017, para 8.
Mr Hassani says at the time he thought the licence his mother sent him was genuine because this is how others he knows got a licence. He said in Afghanistan it is uncommon for people to have genuine documents and that you either pay a bribe or pay someone to get it for you. He also told the Tribunal that he believed that if you pay someone they will get you a genuine document. He says he does not know how his mother obtained the licence but the Tribunal finds this difficult to accept. His sole purpose in arranging for the licence document, which he knew he had not obtained previously, was to bypass the open licence requirements. He knew he had not approached the Afghan authorities for the licence and had not passed any Afghan requirements to obtain that document. In his written statement Mr Hassani says he did not even know the process in Afghanistan for obtaining a driver’s licence.[31] The Tribunal finds therefore that Mr Hassani must have known he had not engaged in a proper process to obtain the licence and was, therefore, engaging in a form of “trickery” on the Department of Transport. The Tribunal has no doubt that there are people in Afghanistan, as there are in many countries, who will produce a document which purports to be genuine in return for payment. However, the Tribunal finds it hard to believe, given Mr Hassani’s intended use of the document, that he thought he was engaging in legitimate conduct with a legitimate document. The Tribunal questioned Mr Hassani regarding his asserted belief that the licence was genuine and he admitted he did know it was not genuine and that he had used an improper document to obtain an Australian licence. Mr Hassani also acknowledged, when questioned by the Tribunal, that that was not acceptable behaviour for someone who wants to be a citizen of Australia.
[31]Exhibit 9, Statutory Declaration of Mr Amin Hassani dated 20 July 2017, para 14.
He says he used the Afghan licence to progress straight from a provisional licence to an open licence because he “didn’t know at the time…[he] made a big mistake”. He said he did not know why he made that mistake and that if he “knew it would cause this problem [he] would never have done this kind of thing”. He told the Tribunal “I feel very bad. I respect the laws and courts decision because I have made that mistake”.
At the identity interview Mr Hassani did not tell the truth about how he got his driver’s licence, which he now admits.[32] At his identity interview the interviewer noted that Mr Hassani “maintained that it was a genuine driver licence obtained from the Afghan authorities in the usual manner”.[33]
[32]Exhibit 9, Statutory Declaration of Mr Amin Hassani dated 20 July 2017, para 7.
[33]Exhibit 11, T Documents, T4, page 55, Identity Assessment Report.
Mr Hassani told the Tribunal that after his identity interview he realised he was in trouble for destroying the Afghan licence so he went to the Department of Transport and:
(a)obtained a copy of the licence he used to obtain his open licence. Mr Hassani provides no explanation for why he did not produce a copy earlier; and
(b)asked them to cancel the Queensland licence so he could obtain it properly but was informed it could not be cancelled in that way.[34]
[34] Exhibit 9, Statutory Declaration of Mr Amin Hassani dated 20 July 2017, paras 16-17.
However, the Tribunal does not accept that Mr Hassani thought it was genuine. He knew he had not obtained a driver’s licence when he was 18 or afterwards, he therefore knew his mother was not sending him “his” licence. This was a dishonest statement.
In his statutory declaration dated 17 February 2017 Mr Hassani declared that his Queensland driver’s licence “was obtained legitimately by sitting the required test and undertaking the practical test”.[35] Yet, he now acknowledges that it was not obtained legitimately.
[35]Exhibit 11, T Documents, T5, page 66, Statutory Declaration of Mr Hassani dated 17 February 2017.
Mr Hassani describes his conduct in his statement as a “very stupid mistake” and says it was the “wrong thing”.[36] Mr Hassani has apologised and states that he would not commit that mistake again.
[36]Exhibit 9, Statutory Declaration of Mr Amin Hassani dated 20 July 2017, para 18.
Mr Hassani says he destroyed the document after he obtained his open licence because it was wet and unreadable from having left it in the car with the window open. However, the Tribunal considers it is more likely that once he had obtained his open licence he decided to destroy the false document he had used to obtain it.
Counterfeit Afghan Driver’s Licence
The Leading Border Force Officer who interviewed Mr Hassani at Brisbane Airport recorded that Mr Hassani said that the Afghan driver’s licence found in his luggage had been posted to him in Pakistan.[37]
[37]Exhibit 11, T Documents, T4, page 58, Border Force Interview Report; Exhibit 4, Immigration Display Referral Record.
However, at the identity interview at the DIBP’s Brisbane office on 30 September 2016, Mr Hassani was shown a copy of the fraudulent Afghan driver's licence that was in found in his possession on 26 April 2016. The Identity Assessment Report records that Mr Hassani:[38]
(a)admitted the licence was blank;
(b)said Mr Mohammadi's sister had given it to him while he was visiting his wife in Quetta, Pakistan; and
(c)said he had not noticed anything unusual about it because he had only looked at the cover.
[38]Exhibit 11, T Documents, T4, page 56, Identity Assessment Report.
Mr Hassani’s story changed again in February 2017 when, in response to the DIBP’s letter of intent to cancel his citizenship approval, Mr Hassani’s representative at the time, Mr Ehsan Azadi (Principal of Arc Visa & Migration) contended that Mr Hassani knew he had a licence in his possession to give to his friend but that he was unaware it was fraudulent as he did not inspect it.[39] The statutory declaration of Mr Hassani accompanying that submission was silent on the issue.[40]
[39]Exhibit 11, T Documents, T5, page 60, Response of Mr Hassani prepared by Mr Azadi dated 20 February 2017.
[40]Exhibit 11, T Documents, T5, page 66, Statutory declaration of Mr Hassani dated 17 February 2017.
Mr Hassani’s current representative now submits that Mr Hassani did not know that the package he carried for Mr Mohammadi contained a driver’s licence.[41] Mr Hassani’s former representative also submitted that Mr Hassani was "an illiterate uneducated man who cannot distinguish between a fraudulent and genuine driver's licence".[42] However, as pointed out by the Minister, this would tend to indicate that Mr Hassani did know he was carrying a driver’s licence.[43]
[41]Exhibit 2, Applicant’s Statement of Issues, Facts and Contentions dated 24 July 2017, para 5.
[42]Applicant’s Submissions dated 21 June 2017, para 11.
[43]Exhibit 1, Respondent’s Statement of Issues, Facts and Contentions dated 18 August 2017, para 33.
Mr Hassani maintained at the hearing that he did not know he was carrying the fraudulent licence. He says after the identity interview he showed the licence to his friend Mr Sharif Hassani who explained to him that it was probably fraudulent. Mr Sharif Hassani, no relative of Mr Hassani, has provided a statutory declaration confirming Mr Sharif Hassani’s account but he did not give evidence before the Tribunal.[44]
[44]Exhibit 3, Statement of Sharif Hassani dated 26 October 2017. .
Ms Le Sueur, advocate for Mr Hassani, said that until the hearing there had been no first person account from Mr Hassani. However, that is clearly not the case. Mr Hassani had an opportunity to give his account to the DIBP when he was interviewed by Australian Border Force officer and also during his identity interview. The report from the Australian Border Force officer who interviewed Mr Hassani at Brisbane Airport records that Mr Hassani said the document was posted to him from Afghanistan.[45] Mr Hassani now says that he did not say that. He told the Tribunal that when he went to Pakistan Mr Mohamadi told him his sister would give him something and to bring it with him. Mr Hassani was living with Mr Mohamadi at the time he brought him the package. He says Mr Mohamadi’s sister gave him a small wrapped package, like a gift. When asked why he brought it back when he did not know what was in it, he said it was his community’s custom/culture to bring gifts back for people from their families.[46] He says he trusted Mr Mohamadi (someone from his village who he had known from childhood), that the package was just a common gift. Mr Hassani says Mr Mohamadi’s sister gave him a package to bring back to Mr Mohamadi but that he did not look inside. The identity interview records that Mr Hassani did not notice anything unusual about the “document” and that he had only looked at the “cover”.[47] The Identity Report makes no reference to a package only a document. The person conducting the identity interview reported that they “found the client’s responses to this matter unconvincing” and that they believed Mr Hassani “knowingly brought a fraudulent Afghan driver licence into Australia for Mr Mohamadi”.[48]
[45]Exhibit 11, T Documents, T4, page 58, Border Force Interview Report; Exhibit 4, Immigration Display Referral Record.
[46]Exhibit 9, Statutory Declaration of Mr Amin Hassani dated 20 July 2017, para 3.
[47]Exhibit 11, T Documents, T4, page 56, Identity Assessment Report.
[48]Exhibit 11, T Documents, T4, pages 56-57. Identity Assessment Report.
Mr Hassani says he has had no contact with Mr Mohamadi once he realized he had been carrying a blank licence. Mr Hassani says he asked Mr Mohamadi why he asked him to bring the licence and Mr Mohamadi told him his sister had sent it by mistake and that he had not asked her to do that. The Tribunal finds this implausible. If Mr Mohamadi told Mr Hassani he had not asked for the licence and that it was given to him by mistake, why would Mr Hassani have ceased contact with him? Further, it seems unlikely that Mr Mohamadi’s sister would send a blank licence to her brother if she had not been asked to do so. Neither Mr Mohamadi nor Mr Mohamadi’s sister were called to give evidence to corroborate Mr Hassani’s story.
Mr Hassani told the Tribunal he was shocked when he discovered he had brought back a false licence for Mr Mohamadi. Yet, having a false licence sent to him in Australia was exactly what Mr Hassani had done in 2011. Mr Hassani said the difference is that his licence was filled in with his name and date of birth but Mr Mohamadi’s licence was blank. Yet, it was clearly going to be used for the same or similar purpose as Mr Hassani, namely to avoid completing the log book hours required on a learner’s permit or to ensure a shorter duration on a provisional licence. Given that Mr Hassani told the Tribunal that others had told him he could use a licence to circumvent the driving licence requirements, the Tribunal does not believe that Mr Hassani was shocked or naive about Mr Mohamadi’s intentions.
Mr Hassani told the Tribunal that once he realized the licence was false, having been told that by Mr Sharif Hassani, he did not give it to Mr Mohamadi.
His explanation for why he did not destroy the licence was because he thought someone from the DIBP might want it so he kept it and handed it in at the time of his interview.
In his statutory declaration dated 20 July 2017 Mr Hassani stated at paragraph 3: “I continue to rely on the information I have already provided to the Department of Immigration. I did not properly appreciate the seriousness of what I was doing when I brought my friend’s fraudulent licence to Australia. It was a foolish error on my part, which I sincerely regret”.[49]
[49]Exhibit 9, Statutory Declaration of Mr Amin Hassani dated 20 July 2017, para 3.
There is nowhere in Mr Hassani’s statutory declaration where he says he did not know he was carrying a licence.
Ms Le Sueur says Mr Hassani realizes he should not have brought the licence to Australia and it was a lack of judgment but that this does not demonstrate bad character. How can it be a lack of judgment if, as he now says, he did not know he was carrying the licence?
Mr Hassani told the Tribunal that he only found out the licence was fraudulent when Mr Sharif Hassani told him it was blank but this does not accord with the Identity Assessment Report which records that Mr Hassani “admitted that the licence was blank”.[50]
[50]Exhibit 11, T Documents, T4, page 56, Identity Assessment Report.
In February 2017 in response to the DIBP’s letter of intent to cancel his citizenship approval, Mr Hassani’s representative at the time, Mr Ehsan Azadi (Principal of Arc Visa & Migration) wrote that Mr Hassani “received the Drivers licence and without close inspection placed it in his bag in preparation for his trip back to Australia. Mr Hassani had no idea that the Drivers Licence he had received and placed in his bag for Mr Mohammadi (sic) was fraudulent”.[51]
[51]Exhibit 11, T Documents, T5, page 60, Written response from Mr Azadi on behalf of Mr Hassani dated 20 February 2017.
Having obtained a new representative Mr Hassani now says that what Mr Azadi said was not true.
Mr Hassani told the Tribunal that if he had known the problem it would cause, he would not have done it. This statement implies that Mr Hassani did know what he was doing.
The Secretary referred the Tribunal to the Tribunal decision of Minister for Immigration and Border Protection and Abdula Azimi [2016] AATA 722 (“Azimi”), Member Evans considered a very similar matter in which the applicant had been found to be in possession of Afghanistan driver's licences that were devoid of biographical data. The Tribunal found that the applicant failed to meet the requirements of the Citizenship Policy in that he:
"failed to behave in a manner befitting an honest person by not destroying the counterfeit licenses as soon as he became aware of them; failed to recognise and obey laws relating to false documents; and, failed to behave in accordance with Australian community expectations.
Ms Le Sueur submitted that Mr Hassani’s case is different to that in Azimi because Mr Azimi knowingly brought in fraudulent licences whereas Mr Hassani has consistently said he did not know.
Weighing all the evidence the Tribunal finds that Mr Hassani did know he was carrying the licence for Mr Mohamadi, that the licence was false, and that he was dishonest with the DIBP and this Tribunal.
DRIVING AN UNREGISTERED VEHICLE
In mid-2013 Mr Hassani committed a traffic offence of driving an unregistered vehicle for which he was fined $1,350.[52] In his statutory declaration of 20 July 2017 Mr Hassani says (at para 19):
I drove my unregistered car because I could not see any other option. I felt that I was stuck. I could not register my car because I had no money. I had just returned from visiting my family overseas and it had taken me a few weeks to find work. Eventually I found work, but I needed to drive [the] car to work to get the money to register the car. I provide this information as an explanation of my behaviour, not as an excuse. I now know that this was a poor choice and have not committed any other traffic offences at all since that date.[53]
[52]Exhibit 9, Statutory Declaration of Mr Amin Hassani dated 20 July 2017, para 19.
[53]Exhibit 9, Statutory Declaration of Mr Amin Hassani dated 20 July 2017, para 19.
At the hearing Mr Hassani said he was not aware his car registration had expired. However, this is entirely inconsistent with the explanation in his statement that he had not registered his car because he had no money.
When the Tribunal questioned Mr Hassani about why he decided to drive the car anyway he admitted he decided to drive it anyway and that because he was unemployed he could not afford to pay for registration.
Mr Hassani chose not to follow Australian laws because it was inconvenient for him.
CONTENTIONS
Minister’s Contentions
The Minister submits that Mr Hassani was not of good character because of his “history of dishonest conduct” with the DIBP relating to:[54]
(a)his carriage of the fraudulent Afghan driver’s licence on entry into Australia on 26 April 2015;
(b)deliberately or knowingly bringing the fraudulent Afghan driver’s licence into Australia and informing customs he was not aware he was carrying the document in the name of his friend;
(c)continuing to avoid taking responsibility by mischaracterising the circumstances leading to him carrying the document into Australia;
(d)not destroying the document or immediately giving it to the authorities when becoming aware of doubts about the document’s authenticity;
(e)dishonestly telling the DIBP in his identity interview that he had a genuine licence when he knew at the time he never had such a licence;
(f)now claiming that he did not know the licence his mother sent to him was genuine or that genuine licences could be obtained;
(g)dishonestly using that licence to move from a provisional permit to a full open licence; and
(h)not disclosing the full reasons for why he destroyed licence. The DIBP says he knew it was false and that was why he destroyed it.
[54]Exhibit 1, Minister’s Statement of Facts, Issues and Contentions dated 18 August 2017.
The DIBP submits that Mr Hassani has failed to show enduring moral qualities of a prospective citizen, failed to obey laws, failed to be honest with his dealings with the DIBP and, as a result, has not acted in accordance with community expectations.
Mr Hassani’s Contentions
Ms Le Sueur submitted:
(a)despite the fact Mr Hassani made two “errors of judgment” he is of good character;
(b)Mr Hassani has now accepted he did the wrong thing on both occasions and that he broke the law;
(c)good character does not mean you have never made a mistake, it is an aggregate of qualities;[55]
(d)the community does not expect people to be perfect and that people take a relaxed attitude to compliance with laws, for example they drive while on mobile phones even though they know it is illegal to do so;
(e)he is a tiler, uneducated and does not have a sophisticated understanding of how the law works;
(f)the Citizenship Policy is for “a privileged person” whereas Australian people are more forgiving than that;
(g)apart from the fraudulent licence issues everything else about Mr Hassani shows he is of good character – he sends money to his family and is trusted by the people he works with;
(h)the consequences of refusing Mr Hassani’s citizenship application need to be taken into account. Ms Le Sueur referred to Azimi where, at [69], the Tribunal quoted from Fenn v Minister for Immigration & Multicultural Affairs [2000] AATA 931 (”Fenn”) where Deputy President Breen stated that the refusal to grant citizenship did not deprive Mr Fenn of any rights he holds or prevent him from reapplying. Ms Le Sueur says that by referring to the consequences of a refusal that that therefore means the consequences should be taken into account;
(i)a single act of illegality does not make a bad character; and
(j)several character references were provided from Mr Hameed Hassani (no relative to Mr Hassani), Mr Daniel Taylor and Mr Callum Harrison, to say that they are aware of what Mr Hassani has done and that despite his “stupid errors” or “mistakes” they still think he is of good character;[56]
(k)Mr Hassani has also recently, on the advice of Ms Le Sueur, undertaken a citizenship seminar to learn about Australian laws and values at the Refugee & Immigration Legal Service.[57]
[55]See Re Chen and Minister for Immigration & Citizenship [2012] AATA 455 (Chen) at [10], where Senior Member Redfern, as she then was, quoted from the Australian Citizenship Instructions which stated: “An applicant’s behaviour does not need to be faultless, but the aggregate of their qualities must be weighed against ordinary community standards of behaviour”.
[56]Exhibit 9, Statutory Declaration of Hameed Hassani dated 22 October 2017; Exhibit 5, Letter from Daniel Taylor dated 5 October 2017; Exhibit 7, Letter from Callum Harrison dated 5 October 2017; Exhibit 6, Statutory Declaration of Darren Anderson dated 26 October 2016.
[57]Exhibit 8, Certificate for Australian Civics and Values seminar awarded to Mr Hassani on 18 October 2017 by Refugee & Immigration Legal Service Inc.
This Tribunal does not read Fenn as authority for the proposition submitted by Ms Le Sueur. The Tribunal in Fenn did not say that the fact he can apply again was relevant to the decision to not approve the application for citizenship. It was merely a statement of fact that he can apply again. There is nothing within the Act or the Policy to indicate that the consequences of a refusal to grant citizenship are a relevant consideration to a determination of someone’s character.
What makes Australia different from many other countries is that there is an expectation the laws will be followed. The Citizenship Policy says abiding by the law and being truthful is a relevant factor to be taken into account. Would the community consider that what Mr Hassani has done makes him not of good character?
CONSIDERATION
Mr Hassani:
(a)destroyed his own false Afghan driver’s licence that he had sent to him in 2011;
(b)used that false licence to progress from a provisional permit to a full open licence;
(c)brought a fraudulent Afghan driver’s licence into Australia on 26 April 2015;
(d)gave conflicting/dishonest information to government authorities on more than one occasion; and
(e)drove an unregistered vehicle.
The Minister contends that “carrying false or fraudulent identity documents into Australia is a very serious matter. The objective seriousness of possessing false documents on entry into Australia is highlighted by s 50 of the Citizenship Act, which provides that the provision of false and/or misleading information can result in imprisonment. Carrying a fraudulent foreign driver's licence into Australia is also very serious because it may be used to circumvent Australian road safety rules and regulations and obtain a legitimately issued Australian driver's licence through fraudulent means. Such behaviour has the potential to undermine the safety of Australia's roads.”[58] The Tribunal agrees that such conduct is very serious and has the potential to undermine the Government’s ability to keep Australians safe from harm.
[58]Exhibit 1, Minister’s Statement of Facts, Issues and Contentions dated 18 August 2017, para 34.
In relation to the submissions that Mr Hassani’s limited education should be taken into account, Mr Hassani does need to be as educated as an average Australian citizen to act honestly in his dealings with the DIBP. Mr Hassani chose to answer questions put to him by the DIBP one way rather than the other. Mr Hassani has only recently admitted that he lied since obtaining new representation. Even if he did not stop to think about the dishonesty of his actions, this is not a mitigating factor, and only further concerns the Tribunal, as it suggests Mr Hassani is willing, and prepared, to act without considering the legality, or the repercussions, of his actions in relation to others.
Mr Hassani has apologised but his main concern regarding the repercussions of his conduct is that he will not be able to sponsor his family to come to Australia. Mr Hassani has not demonstrated any real understanding of the seriousness of his actions. His only concern seems to be what impact his conduct has had on him personally.
In relation to Mr Hassani’s driver’s licence the Minister submits that even if the document was damaged at some point:
(a)Mr Hassani clearly held it in his possession for some time before discarding it;
(b)his reasons for destroying the licence are not reasonable in circumstances where it was the only form of documentary evidence he possessed that indicated his identity in Afghanistan;
(c)Mr Hassani had an opportunity to provide this document to the DIBP (both before and after the alleged damage) but failed to do so; and
(d)Mr Hassani’s failure to provide this document to the DIBP again weighs against him in determining whether he is not of good character.
Clearly Mr Hassani’s original explanation to the authorities that he obtained a licence on the basis of a school certificate was false. Mr Hassani admitted this to the Tribunal. Further, information from the Afghan Ministry of Interior Affairs states that an Afghan driver's licence cannot be genuinely obtained without providing a young person's health certificate or a driving licence medical certificate.[59] Mr Hassani did not arrange for these steps to be taken and in fact told the Tribunal he did not know how his mother obtained the licence but that it was common to simply pay someone for it.
[59]Exhibit 11, T Documents, T2, page 20, Decision Record dated 28 March 2017..
These factors weigh against a finding that Mr Hassani is a person of good character.
Mr Hassani did not disclose the existence of the licence to the DIBP in 2009. Clearly this was because he did not in fact have one.
The Tribunal acknowledges that Mr Hassani runs his own business and is an active member of his local Islamic community. However, this does not diminish the seriousness of Mr Hassani’s conduct in relation to his engagement with government officials and his willingness to always abide by the law, even when it is inconvenient.
The Minister contends that the character references should be given little, if any, weight and referred the Tribunal to Kiokata and Minister for Immigration and Multicultural Affairs [1999] AATA 1022, the Tribunal remarked that the:
[109] ...references are subjective views of persons having contact with Mr Kiokata, and should not be given the same weight that should be accorded to Mr Kiokata's own actions and conduct which has been set out in substantial detail above".[60]
[60]Applied in the recent decision of Grafton and Minister for Immigration and Border Protection (2016) AATA 981 at [72].
The Tribunal agrees that the character references do not carry much weight for the reasons given in Kiokata and, as referred to earlier, neither Mr Mohamadi or Mr Mohamadi’s sister were called to give evidence. There is no evidence to corroborate Mr Hassani’s explanations.
The Minister referred the Tribunal to the comments of Deputy President McMahon in Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27 at [49], which are appropriate here:
"... The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in visa applications...Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld".
When Mr Hassani was asked by Ms Le Sueur why he believed he would make a good Australian citizen, his answer was not how he would contribute to Australia but rather why he wanted to become a citizen. He said “I have been working here, I am happy, I would like to live here and bring my family, and start a new life. I am hard working. I am sorry for the mistake I have done. If citizenship is refused I will not be able to sponsor my family, I haven’t seen them for four years.”
Mr Hassani’s “mistakes”, as he refers to them, all centre around dishonest conduct and/or knowingly failing to abide by the laws of this country. Honesty is at the core of a person’s “moral qualities”.
Mr Hassani has been dishonest on numerous occasions and has changed his story at different times. He has had numerous opportunities to correct the record but did not until recently.
It makes it very difficult for the Tribunal to find Mr Hassani credit worthy.
The explanation regarding why he destroyed his licence is implausible. Mr Hassani told the Tribunal that at the time it was water damaged he did not need it anymore because he already had his open driver’s licence. However, the Tribunal believes that the reason he destroyed it was because, having obtained the Queensland licence, he did not want to get caught with the fraudulent Afghan licence.
Mr Hassani has been repeatedly dishonest and, apart from being disappointed that it could impact on his ability to sponsor his family, he exhibits no real understanding of what constitutes honesty when dealing with authorities on matters/laws that are designed, inter alia, to keep the community safe on the roads.
In relation to Mr Hassani’s failure to immediately destroy the document, the Tribunal does not take too much from that. It is plausible that he thought the government may want the document at some point. The Tribunal acknowledges that Member Evans in Azimi opined "that an honest person would have either surrendered the licences to authorities or destroyed them immediately as the implications for their use would have been apparent”.[61] However, in this case there is no evidence that the document was subsequently used by Mr Mohamadi or that it was given to him. Further, once the notice was given to Mr Hassani confirming that his citizenship approval had been cancelled he handed it in. He did not pretend to have destroyed it or to no longer have it in his possession.
[61] Minister for Immigration and Border Protection and Abdula Azimi [2016] AATA 722,,[54].
Mr Hassani’s conduct in not telling the truth and engaging in acts which are either fraudulent or demonstrate a disregard for the laws of this country is not conduct becoming of someone with good character. While the Tribunal accepts that an applicant need not be flawless, engaging dishonestly with government officials on more than one occasion and blatantly disregarding the law are serious flaws. Time will tell whether Mr Hassani is genuine in his willingness to respect and abide by Australian law from now on.
DECISION
The Tribunal has found that Mr Hassani is not of “good character” and therefore does not meet the eligibility criteria as per section 25(2)(b)(iii) of the Act. Mr Hassani therefore is not eligible for citizenship under section 21(2)(c) of the Act.
The decision under review is affirmed.
I certify that the preceding 92 (ninety -two) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
.......................[Sgd].................................................
Associate
Dated: 4 January 2018
Date of hearing: 27 October 2017 Advocate for the Applicant: Ms Marg Le Sueur, Migration Agent Advocate for the Respondent: Mr Lachlan Gell, Solicitor Solicitors for the Respondent: Clayton Utz
1
6
0