Hassanzada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

Hassanzada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 603 (31 March 2022)
Division:GENERAL DIVISION
File Number: 2019/3284
Re:Mohammad Ali Hassanzada
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:31 March 2022
Place:Melbourne

The Tribunal affirms the Decision Under Review except as regards identity, with that aspect of such decision set aside on the ground that the Tribunal is satisfied as to the identity requirement under s 24(3) of the Australian Citizenship Act 2007 (Cth).
........................................................................
Dr Damien Cremean, Senior Member
CATCHWORDS
CITIZENSHIP – Application for Australian citizenship – identity – numerous alleged lies in application and elsewhere – lies admitted — Tribunal satisfied as to Applicant’s identity –Tribunal not satisfied as to Applicant’s good character – Decision Under review affirmed except as regards identity.
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Delawar v Minister for Immigration, Citizenship, Migration Services & Multicultural Affairs [2021] AATA 3092
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sherwan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1702
Secondary Materials
Department of Immigration and Border Protection, ‘Citizenship Policy’ (1 June 2016)
Revised Citizenship Procedural Instructions, Chapter 15
Revised Citizenship Procedural Instructions, Chapter 16
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
31 March 2022
BACKGROUND

The Applicant, Mr Mohammad Ali Hassanzada, is a 55-year-old citizen of Afghanistan who arrived in Australia by boat in 2009 and currently holds a Permanent Protection (Class XA) (subclass 866) Visa which was granted on 20 January 2010.[1]
[1] T-Documents at T3.
On 16 September 2016, the Department requested further information from the Applicant regarding identity documents issued in Afghanistan and requested the return of a ‘Consent to Release Information from VicRoads Form’ and ‘Form 80 – Personal Particulars’ Forms.[2] The Applicant provided a completed VicRoads Authorisation Form, a partially completed Form 80, and a statement explaining why he was unable to provide various official Afghani documents to the Department.[3]
[2] T-Documents at T11/147-148.
[3] T-Documents at T13/151-170.
On 9 March 2017, the Department requested further information from the Applicant, namely his original Taskera, passport, Afghani driver’s licence, original certificate of marriage, and a completed Form 80 to assist the Department to confirm his identity before his arrival in Australia.[4] On 5 April 2018, the Applicant provided a further Form 80 in response to this request.[5]
[4] T-Documents at T14/171.
[5] T-Documents at T15/173-190.
On 26 March 2018, the Department requested further information from the Applicant, namely, his original Afghani driver’s licence.[6] On 13 April 2018, the Applicant provided a signed statement that he could not locate his Afghani driver’s licence.[7]
[6] T-Documents at T20/220.
[7] T-Documents at T21/222.
On 30 May 2018, the Department requested further information, namely:[8]
[8] T-Documents at T24/232-236.
(a)his travel history; his family composition;
(b)his past residential addresses;
(c)information about his family in Australia;
(d)information explaining the circumstances of the Applicant’s “missing” children;
(e)details of his wife’s identity;
(f)details about his travel history;
(g)details of the material submitted to the Pakistani authorities when he applied for a Pakistani visa;
(h)details of any overseas money transfers; and
(i)details of the Applicant’s medical treatment overseas.
On 12 July 2018, the Applicant provided a statutory declaration in response to this request.[9]
[9] T-Documents at T25/241-249.
On 8 January 2019, the Applicant was invited to comment on adverse information, namely regarding the inconsistent or contradictory information about his:
(a)name;
(b)family composition;
(c)location and status;
(d)employment history;
(e)connections in Australia;
(f)overseas travel and associated documentation; and
(g)identity documents.[10]

7.On 21 February 2019, the Applicant provided a Statutory Declaration, letters of support, and a new translation of his Taskera.[11]
8.On 13 March 2019, the Department requested that the Applicant provide further information by 31 March 2019 about his siblings and his purchase of land in Afghanistan prior to his departure.[12] The Applicant did not respond to this request.
9.On 20 May 2019, the delegate refused the Applicant’s application for Australian citizenship.[13]
[10] T-Documents at T26/251-263.
[11] T-Documents at T29/98 and 264-267.
[12] T-Documents at T30/268-269.
[13] T-Documents at T2.
Such refusal was made under s 24(1) of the Australian Citizenship Act 2007 (Cth) (‘Act’), on the basis that the delegate was not satisfied as to the Applicant’s:
(h)‘good character’ pursuant to s 21(2)(h) of the Act; and/or
(i)‘identity’, a necessary condition of approved citizenship under s 24(3) of the Act.
By application dated 8 June 2019, the Applicant seeks review of this decision (‘Decision Under Review’), which is opposed by the Respondent.
LEGISLATION
A person may apply for Australian citizenship by conferral under s 21 of the Act. Upon making such application, s 24(1) of the Act requires the Minister to approve or refuse that person becoming a citizen.
Pursuant to s 24(1A) of the Act, the Minister, and hence now the Tribunal, must not approve an application for Australian citizenship unless the Applicant satisfies the relevant eligibility requirements under s 21 of the Act. Relevant to this review, the Tribunal must be satisfied that the Applicant is of ‘good character’ at the time of this Decision pursuant to s 21(2)(h) of the Act.
The Minister (and Tribunal) must also be satisfied as to the Applicant’s ‘identity’ by operation of s 24(3) of the Act which provides as follows:
Identity
(3)The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person.
Note: Division 5 contains the identity provisions.
ISSUES
The central issues in this application for review are correctly identified by the Respondent as being whether the Tribunal can be satisfied of:
(a) the Applicant’s ‘good character’, pursuant to s 21(2)(h) under the Act; and
(b) his ‘identity’ under s 24(3) of the Act.
The Tribunal must determine these issues, having regard to what is the correct or preferable decision, based on all the evidence placed before the Tribunal.
HEARING
The hearing of this application took place in person on 16 August 2021.
The Applicant was represented by Mr Aleksov of Counsel, and the Respondent by Mr Orchard, solicitor at Sparke Helmore Lawyers.
Th Applicant gave affirmed evidence via interpreter and he was cross-examined on his evidence. No other witnesses were called by either party.
EVIDENCE
In addition to the oral evidence, the following documentary evidence was before the Tribunal:
(a)The documents lodged by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975, here called the T-Documents and Supplementary T-Documents;
(b)Statements of Facts, Issues and Contentions lodged by each party; and
(c)Various statements, statutory declarations, reports, evidence, and character references lodged by the Applicant.
The Applicant gave detailed affirmed evidence and confirmed that the contents of a witness statement dated 13 February 2020, which was read to him in the Dari language, were true and correct in every respect.
I have read and considered the contents of that statement, which I note was amongst several other statements lodged by him with the Tribunal and was in the form of a Statutory Declaration.
I consider the key points arising from this statement as follows:
The Applicant’s name is Mohammad Ali Hassanzada;
(b)He arrived in Australia by boat on 15 October 2009;
(c)He admits having given false information to Australian authorities, stating on a form that he had six children; and that his brother died at the hands of the Taliban, while in reality, his brother died from stomach cancer;
(d)He included his niece and nephews amongst his own children when dealing with immigration authorities, lying because he “considered that [they] were …in need of my help” and “was desperate to help [his] family”;
(e)He suffers depression for which he has received treatment since 2016, and supplied the authorities in 2017 with a letter to that effect;
(f)On 15 December 2015, in a Partner Visa application he lied again about having six children. He says his reason for doing this was that he “feared for their safety” and “wanted to be able to take them out of the situation in Afghanistan because it is so unsafe”;
(g)In his Partner Visa application of 15 December 2015, he listed four of these children as “missing”. He said his reason for doing this was “because [he] could not afford the visa application charges for seven applicants”;
(h)In that same Partner Visa application, he falsely stated: “[his] wife and children were living in Afghanistan” whilst in reality, they had fled to Pakistan He was hoping that by this false statement “the Department would approve [his] wife’s application sooner” due to known safety fears in Afghanistan for Shia Hazara Muslims;
(i)He believes that some issues with his citizenship application (which he applied for on 16 March 2014) arose “through either translation errors” or his “poor memory recall”;
(j)The citizenship application process has been a “long” one and in July 2018 he was presented with another “extremely lengthy” request for more information by the Department, and he found this “overwhelming”;
(k)His statutory declaration dated 9 July 2018 contained some information which “is plainly false”, not only listing his brother’s children as his own and saying they were missing, but falsely claiming that he was giving money to his widowed sister-in-law and his wife in Afghanistan, whereas in reality this money was being sent to Pakistan; and
(l)He says he is “sorry for firstly providing false information regarding the number of children [he has] and where [his] family was residing”, further stating that “[he] did this out of love and concern for my family”.
A further Statutory Declaration dated 18 June 2021 was also received into evidence. In this statement, the Applicant confirms the contents of his earlier statement and provided updated information concerning his situation. This updated information included where he works and explains that he lives at his employer’s premises, has no family of his own in Australia, and continues to suffer depression and sleeplessness. He states: “I often feel hopeless and deeply saddened because of the separation from my family” and that “my only wish [is] for my family to join me in Australia”.
Under cross-examination, the Applicant admitted to having provided a fraudulent marriage certificate in his application for citizenship in March 2014.[14] While he did not deny any of other the false statements alleged by the Respondent, he stated: “if the lies have happened it’s because I am illiterate”.[15]
[14] Transcript at P-17/45.
[15] Ibid at P-25/35.
During re-examination, the Applicant was asked if he was sorry for what he had done and said: “I am very sorry”. [16]
[16] Ibid at P-26/3514.
CONTENTIONS
In coming to my decision, I have had due regard to all oral and written submissions provided by the parties.
Applicant’s contentions
The Applicant contends that the decision under review should be set aside.
The Applicant relies on lodged Witness Statements, his oral evidence at the hearing, and character references, including from his employer, which were provided to the Tribunal in support of his application.
Identity
On the issue of the Applicant’s identity, the Applicant submits that I can be satisfied for the purposes of s 23(4) of the Act. Reliance is placed on the Applicant having submitted a Taskera card in his name, a principal Afghanistan identity document which is “routinely” examined by the Department.[17] As no report was provided by the Respondent with respect to the Applicant’s Taskera card, the Applicant submitted it should be inferred that either the Department considers such an examination was unnecessary or that any examination that was conducted did not uncover sufficient irregularities to cause the authenticity of the document to be doubted. [18]
[17] Applicant’s Statement of Facts, Issues and Contentions dated 14 February 2020 at [4] (‘A’s SFIC’).
[18] Ibid at [5].
The Applicant further contends that Respondent’s reasoning, based on the Applicant’s now admitted false claims as to his family composition, is “wide off the mark on questions of identity”, asserting that for family composition to be probative of identity, there must be “some probative force in the nature of any such doubt…that rationally and logically, on sound evidence…raise consequential doubts about a person’s identity”.[19]
[19] Ibid at [7].
Emphasis was also placed on the fact that the Applicant had provided plain, acceptable explanations for his false statements of familial composition; and that while his relationship with known, identifiable persons might reasonably be in doubt, the existence of such persons was not, and that by consequence, his claimed identity was not undermined.[20]
[20] Ibid.
In the Applicant’s Closing Submissions, further emphasis was placed on the fact that the Applicant has provided consistent information regarding his name, date of birth and nationality in his interactions with the Department.[21]
Character
[21] Applicant’s Closing Submissions at [8].
With respect to character, the Applicant submits that the Tribunal could be satisfied that he fulfilled the ‘good character’ requirement under s 21(2)(h) of the Act.
In support of this contention, the Applicant cited the fact he had no prior criminal convictions and emphasised that while he had admitted to telling falsehoods to the Departments, that this falls short of a “criminal offense” and was not so serious so as to deny the Applicant’s good character when viewed in context. The Applicant urged the Tribunal to consider the reasons for the Applicant’s conduct “at a human level” and as “readily capable of being understood” in the circumstances; particularly given his inherited role of “protector” of his brother’s children, motivations for avoiding persecution, and the fulfillment of familial obligations without personal benefit to himself.[22]
[22] Ibid at [10]-[11].
It was further submitted that in these circumstances the Tribunal “should show some sympathy to the [A]pplicant” on the ground that the “gravity of [his] misdeeds is not so high as to render him not of good character”.[23]
[23] Ibid at [12].
In Closing Submissions, the Applicant emphasised his status as a refugee and the “pressure of circumstances [that] may lead some applications for refugee status to tell lies”.[24] Numerous references were made to caselaw commenting on how applicants for refugee status may be subject to such pressures and or desperation for life or freedom, and that consideration of such matters should be borne in mind by decision-makers.[25]
[24] Applicant’s Closing Submissions at [14].
[25] Ibid at [12]-[16].
Respondent’s contentions
The Respondent contends that the decision under review should be affirmed.
Identity
The Respondent submits that the Tribunal should not be satisfied as to the Applicant’s identity for the purpose of 24(3) of the Act, emphasising that documentation informs only one aspect of identity; and in any case, that with the exception of his Taskera, the Applicant has not provided any genuine documents issued in Afghanistan in support of his claimed identity.[26] On this issue, the Respondent submits that the Tribunal must consider consistency of the Applicant’s ‘life story’, which, it was asserted, was made inconsistent by the false and varying statements made by the Applicant with respect to his children, the location of his wife and children, financial transfers, and connections to Australia.[27]
[26] Respondent’s Statement of Facts, Issues and Contentions at [32] (“R’s SFIC”).
[27] Ibid at [35]-[40].
The Respondent further submits that the Applicant’s willingness to lie repeatedly distinguishes this case from Delawar v Minister for Immigration, Citizenship, Migration Services & Multicultural Affairs[28] and “greatly undermines his assertions…that is he now telling the truth about his identity”.[29]
Character
[28] [2021] AATA 3092.
[29] Respondent’s Closing Submissions at [12].
The Respondent refutes the Applicant’s argument that an absence of a criminal record is indicative of good character, citing relevant citizenship policy as expressly providing that a person of good character would be truthful and not practice fraud or deception in their dealings with the Australian Government.[30]
[30] Ibid at [41]-[42] referring to Department of Immigration and Border Protection, ‘Citizenship Policy’ (1 June 2016) at page 146.
The Respondent further submits that whilst the Applicant’s reasons for falsely claiming he had four additional children evoke sympathy, his untruthfulness “implicitly sought to circumvent Australia’s migration program”.[31] In making this submission, the Respondent emphasises the “fundamental importance” of prospective citizens being truthful in dealings with government officials, given that the migration system is dependent on applicants providing accurate information, subject to a capped number of annual visas, and designed to give effect to a range of economic and social outcomes.[32]
[31] Ibid at [43].
[32] Ibid.
Finally, the Respondent emphasises that these false statements were made knowingly and over an enduring period; and that this indicated that the Applicant was not of ‘good character’ for the purposes of s 21(2)(h) of the Act.[33]

[33] Ibid [43]-[44].

CONSIDERATION
Identity

The first issue to be determined is whether the Tribunal is satisfied as to the Applicant’s identity for the purposes of s 24(3) of the Act.
Considering the evidence and information before me, including the Taskera card submitted in the Applicant’s name, I am satisfied that the Applicant is who he claims to be.
In coming to this view, I acknowledge the limited documentation otherwise lodged by the Applicant in support of his claimed identity, and falsehoods contained in previous descriptions of his family composition and other matters related generally to his ‘life story’. However, the Tribunal gives weight to the existence of the Applicant’s Taskera, a primary form of identity documentation in Afghanistan, and the Applicant’s submission that the (now corrected) inconsistencies regarding the Applicant’s family composition do not, in any direct sense, undermine his claimed identity. This assessment acknowledges the submission of the Respondent that the Applicant’s willingness to fabricate and repeat false statements may call into question whether he is now telling the truth; but considers the oral evidence given by the Applicant, in addition to the Statutory Declarations dated 14 February 2020 and 18 June 2021 lodged with the Tribunal to be sufficiently credible for the purpose of assessing the accuracy of his claimed identity. In other words, having seen and heard the Applicant in affirmed evidence given to me, I am quite satisfied that I should accept his word in this regard in preference to what he has declared previously in statutory declarations.

Accordingly, with respect to the Applicant’s identity, that aspect of the Decision Under Review is set aside and substituted with a decision that the Applicant’s identity is sufficiently known for the purposes of s 24(3) of the Act.
Character
I am not satisfied that the Applicant is of “good character” under s 21(2)(h) of the Act and therefore determine that this aspect of the Decision Under Review must be affirmed.
As referred to above at paragraph [13], the Applicant’s application for citizenship cannot succeed unless he satisfies the character requirement under s 21(2)(h).[34]
[34] Citizenship Act 2007 (Cth) s 24(1A).
Section 21(2)(h) confers discretion on the Tribunal, requiring it to exercise an “opinion requiring an evaluative judgement” to reach an “affirmative belief” that the Applicant is of good character.[35]
[35] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54]-[55] (‘Boy19').
Whilst ‘good character’ is not defined in the Act, the Tribunal is guided by case law and policy as to its meaning.
As a general principle, the Tribunal will take into consideration relevant policy in coming to its decision, unless there is a cogent reason not to do so; such as the policy being inconsistent with the relevant legislative framework.[36]
[36] Refer Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
On 1 June 2016, the then Department of Border Protection (now the Department of Home Affairs) issued a policy entitled ‘Citizenship Policy’ providing guidance on the interpretation and the exercise of powers under the Citizenship Act and its regulations (‘Policy’). The introduction to the Policy states that the Policy cannot constrain the exercise of delegated powers under the Citizenship Act or its regulations.[37]
[37] Refer T-Documents T19/141.
Further policy which should be considered by the Tribunal in assessing character include the Australian Citizenship Policy Instructions (‘CPIs’), which were last revised by the Department on 1 June 2019.
According to Chapter 15 of the CPIs, determining ‘character’ for the purposes of s 21(2)(h) requires an assessment of whether an applicant:
(a)has characteristics which have been demonstrated over a long period of time;
(b)distinguishes right from wrong; and
(c)behaves in an ethical manner, conforming to the rules and values of Australian society.
In forming a view as to character, the Tribunal must look holistically at the Applicant’s behaviour over time and be satisfied of “enduring moral qualities” within the prospective citizen.[38] This assessment also involves a weighing exercise as to how conduct reflects positively or negatively on an applicant’s character.[39]
[38] BOY19 (n 36) at [51].
[39] Ibid at [76].
The Tribunal has read and acknowledges the character references prepared and submitted by the Applicant in support of his application. They are in support of the Applicant generally and I have read each carefully. However, they are all expressed in similar terms, and the Tribunal would have been more assisted by actually hearing from one or two of the referees themselves.
In coming to this view, the Tribunal also acknowledges submissions of the Applicant with respect to his refugee status.[40] While the cited comments are acknowledged, the Tribunal notes that in this case, the false statements were made not only in his Protection and Global Humanitarian Visas in 2009 and 2010 but repeated in his Partner Visa application in 2013 and again in his application for citizenship in 2014.
[40] Applicant’s Closing Submissions at [12]-[16].
As referred to above at paragraph [36], the Applicant urges the Tribunal to “show sympathy” in light of his circumstances, and his desire to assist children under his responsibility in assessing his character. While the Tribunal is sympathetic to these circumstances, and to the mental health issues suffered by him, the Tribunal does not consider that this factor outweighs the gravity of the conduct engaged in by the Applicant.
The central problem for the Applicant is his repeated, frequent, lying which took place over a decade, from 2009 until 2018, and included the provision of a fraudulent marriage certificate. As correctly identified by the Respondent, this distinguishes this case from the facts in Sherwan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[41] both in scale and the nature of the lies involved.[42]
[41] [2021] AATA 1702.
[42] Respondent’s Closing Submissions at [1].
The Tribunal indicates though that, while it does understand that his repeated lying was motivated by his concern for his family and relatives in a dangerous place, knowingly deceiving the Australian government in the way he has undermines fundamental principles underpinning Australia’s migration process.
Further, in contrast to some other cases, where despite telling untruths an applicant has been found to be of ‘good character’, the Applicant’s lies were effected in Australia with what I regard as forethought, planning and not in extremis.
Given the planned nature of the false statements, as well the fact that they were made over such an extended period, I also reject the excuse given of “poor memory” or “translation errors” or the “overwhelming” burden of providing documentary evidence to the Department.
Whilst the Tribunal accepts that Applicant now is sorry, indeed “very sorry” about his lying, to which he has fully admitted, he was the originator of his lies. The lies extend over a long period of time, and, at the risk of sounding unsympathetic, he has no one to blame but himself for his failure to meet the requirements in s 21(2)(h) of the Act.
DECISION
For the reasons given above, the Tribunal affirms the Decision under Review except as regards identity, with that aspect of such decision set aside on the ground that the Tribunal is satisfied as to the identity requirement under s 24(3) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member.

......................[Sgd]..........................
Associate
Dated: 31 March 2022

Date of hearing:

Date last submission lodged:

Advocate for the Applicant:

16 August 2021

20 September 2021

Mr Angel Aleksov

Solicitors for the Applicant

Advocate for the Respondent:

Clothier Anderson Immigration Lawyers

Mr Christopher Orchard

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2022] AATA 603

31 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction