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

[2022] AATA 4135

Hossaini and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 4135 (6 December 2022)

Division:GENERAL DIVISION

File Number:          2021/4247

Re:Abdul Khaliq Hossaini

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Mrs J C Kelly, Senior Member

Date:6 December 2022  

Place:Sydney

The reviewable decision made on 10 June 2021 by the Respondent’s delegate to refuse to approve the grant of Australian citizenship is affirmed.

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

Mrs J C Kelly, Senior Member

Catchwords

CITIZENSHIP – application for citizenship by conferral – citizenship application refused – whether the applicant meets the character requirements – provision of false documents and information by the applicant – application of citizenship procedural instruction – whether applicant has enduring moral qualities – reviewable decision affirmed

Legislation

Australian Citizenship Act 2007

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Grass v Minister for Immigration and Border Protection [2015] 231 FCR 128

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

Secondary Materials

Australian Government Refugee Review Tribunal, ‘Country Advice Pakistan – PAK36448 – Quetta – Hazaras – Security Situation’, 30 March 2010.

Citizenship Procedural Instruction 15 ’Assessing character under the Citizenship Act’

Eve Conant, ‘Why Afghans Don’t Know Their Ages’ (Web Page), 30 November 2001 < and Refugee Board of Canada, ‘Response to Information Request AFG103757.E’, 28 July 2011

Janet Phillips, ’Asylum seekers and refugees: what are the facts?’, (Research Paper, Parliamentary Library, Parliament of Australia, 2 March 2015).

United Nations High Commissioner for Refugees, ‘Beyond Proof – Credibility Assessment in EU Asylum Systems’, May 2013.

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

6 December 2022

The issues

1. The Applicant, Mr Hossaini, has applied to the Tribunal to have set aside the decision made on 10 June 2021 by the Respondent’s delegate to refuse to approve the grant of Australian citizenship.

2. The reasons for the decision were that the Applicant failed to meet the character and identity requirements in subsection 21(2)(h) and section 24(3) respectively, of the Australian Citizenship Act 2007 (the Act). Those are the two issues to be decided.

   Agreed facts

3. There are few agreed facts in this case. The Applicant arrived in Australia as an unauthorised maritime arrival on 24 November 2009 without formal identity documents. On 10 March 2010, he was granted a Protection (subclass 866) visa based on his claim to be an Afghan national of Hazara ethnicity. He currently holds a Resident Return (subclass 155) visa. He travelled overseas in 2011, 2013 and 2018. His wife and three children were granted Partner (subclass 309/100) visas in 2013 and are living in Australia. He applied for citizenship by conferral on 28 October 2014.

   Concessions made by the Applicant

4. The Applicant acknowledges the following. In summary, since arriving in Australia in 2009:

   ·he has given a false name,

   ·provided false documents to the government including police documentation from Quetta and a marriage certificate for which he paid,

   ·given false information or various versions, about where he has lived and when, what happened to his tazkera (an identity document issued in Afghanistan), the identities of his family members, including his siblings, wives and children, their location, and whether they were alive, dead, or missing, and the place of birth of his son who was born in 2005.

5. He provided a copy of what he says is his real tazkera as an annexure to a statutory declaration made on 7 May 2021 and a translation on 25 May 2021. He claims that he has been in possession of it since 2013. He offered to release the original tazkera to the Department to check its validity. The Department has not accepted that offer.

   The Applicant’s explanations and apologies

6. The Applicant has provided explanations and apologies and expressed his regret for providing incorrect information and documents, in his statutory declaration of 7 May 2021, his supplementary statement provided at the hearing, and during his oral evidence.

7. During his oral evidence, the Applicant said that it took until 2020 for him to realise that he had to reveal the truth to his lawyer.

8. When it was suggested to him that he would never have told the truth if the Department had not sent him a letter asking for his comment, he said that he was brought up in a lawless country where there were no rules, and where there was deception. He is ashamed he did not tell the truth. It was because of fear that he could not tell the truth.

9. When asked if he would do anything to get to Australia and bring in the children and to get a passport, the Applicant said that he is not a deceptive person. He may tell lies to migration to get relatives and himself a safe place to live, but apart from the migration crisis, his life is not based on deception or lies. 

10. He said that there was no security in Quetta, Pakistan. Bombs were exploding and people died. It was not possible to go to embassies to get official documents. Hazaras were in the worst position in Quetta. They are readily identified by their facial features.

11. In Pakistan, somebody is paid money and will make a genuine document.

12. When asked about his positive contribution to Australia which indicates good character, the Applicant said that he had not done a great deal of voluntary work. He has done nothing illegal and worked for nine and a half years for a construction company. He wanted to help during the bushfires but was told he was not qualified. His English language ability was limited. He gave a small amount of cash.   

13. He had not provided two character references requested by the Department because he thought there was no need to. He could have got letters. His mind was on the complicated lies.

14. The Applicant explained that various remittances were sent to relatives and for charity. Some was his money, and some was from others. The $20,000 sent in 2015, was collected from one of his brothers and his sister in Australia and sent to Quetta to relatives and for orphans. He conceded that some of the remitted funds were for the documents that he had obtained.

15. He was not certain of the dates when he was in Iran and Pakistan. He had said that he went to Iran from Afghanistan in 2001 for one year and was expelled. He married in Pakistan and went back to Iran in 2003. After five months he was expelled. He needed money and so returned to Iran in 2004 and left voluntarily after one year. The turbulent conditions would not have helped his memory. He did not know whether the passports for his wife and children issued by the Afghan Embassy in Canberra were genuine.

    Submissions on behalf of the Applicant

16. Mr Poynder, counsel for the Applicant, emphasised that refugees are entitled to seek protection and faced difficulties in providing documentation required by countries such as Australia.[1] He referred extensively to the guide Beyond Proof: ‘Credibility Assessment in EU Asylum Systems’ (Beyond Proof).[2] He provided information about the treatment of Hazaras in Afghanistan[3] and Pakistan[4] and whether they know their age[5].

    [1] Janet Phillips, ’Asylum seekers and refugees: what are the facts?’, (Research Paper, Parliamentary Library, Parliament of Australia, 2 March 2015).

    [2] United Nations High Commissioner for Refugees, ‘Beyond Proof – Credibility Assessment in EU Asylum Systems’, May 2013.

    [3] Immigration and Refugee Board of Canada, ‘Response to Information Request AFG103757.E’, 28 July 2011.

    [4] Australian Government Refugee Review Tribunal, ‘Country Advice Pakistan – PAK36448 – Quetta – Hazaras – Security Situation’, 30 March 2010.

    [5] Eve Conant, ‘Why Afghans Don’t Know Their Ages’ (Web Page), 30 November 2001 <

17. In Chapter 6, Part 4, Beyond Proof addresses various ‘unwarranted assumptions’ about refugees seeking protection in a receiving country.  In summary:

    ·False statements and documents on entry do not undermine credibility. They are the actions that persons in need of international protection must often have to resort because regular entry is difficult or impossible. The journey may only be possible with the assistance of agents, facilitators, or others. The person may feel compelled to comply with their guidance on what to say to authorities and documents to provide or to destroy. The reasons include duress, coercion, lack of autonomy, misguided advice, fear, desperation, and ignorance are just some of the many reasons that might account for an applicant’s behaviour. In fact, there are numerous possible explanations for an applicant’s behaviour other than deception.

    ·Embellishment or strengthening an otherwise credible account that establishes grounds for qualification for international protection is hardly surprising. The person is often engaged in a desperate battle for freedom, if not life itself. Contextual circumstances may include that the concept of lying and embellishment is culturally relative, and the person’s age.

    ·The provision of false documents or other evidence may be an attempt to meet the presumed expectations of the relevant authority. It does not mean that the fact in issue is untrue.

18. Mr Poynder divided the false information the Applicant has provided into three periods: his arrival and application for protection, his first attempt to bring ‘his family’ to Australia in 2010, and the application for citizenship.

19. With respect to the first period, Mr Poynder submitted that falsely saying that his tazkera had been lost years ago, when it was in fact with his family in Pakistan and which he collected in 2013, was immaterial. He did not have it with him. It was conduct typical of undocumented genuine refugees.

20. His claim to have five children from his first wife who died in 2001, who were in fact his nephews and nieces whose parents had asked him to include them as family members to help them escape from Afghanistan, was essentially altruistic. He was risking his own credibility to help vulnerable people.

21. Mr Poynder acknowledged some difficulty in explaining the false information about the number, identity and whereabouts of his siblings the Applicant had given, but did explain the following. Not disclosing his three siblings who were in Australia was to protect them and their families from any connection with him. In addition, he did not want one of those siblings who opposed his travel to Australia to know that he had acted against his wishes.  It would have been to the Applicant’s advantage to have declared those siblings who had all received protection visas.

22. He described the other false information as minor exaggeration or embellishment or in the case of claiming that two of his sisters had died, that may have been to protect his siblings in Australia.

23. In summary, the false information he provided when he arrived in Australia was little different from that provided by most undocumented asylum seekers. It was due to his means of arrival and his family circumstances, including his altruism. None of it reflects badly on the Applicant’s character.

24. With respect to the application for the subclass 202 visa in 2010, which included the Applicant’s five nieces and nephews as his children of his wife who had died, as well as his own children with his present wife, this was altruistic and reflects well on the Applicant.

25. With respect to the false information provided over a period of six years from the date the application for citizenship was made in 2014 until the receipt of the Department’s letter in October 2020, Mr Poynder submitted that the Applicant continued to fear and distrust the authorities, which Beyond Proof identifies as two reasons why asylum seekers may wish to conceal facts from them. Unable to secure documents through regular means, the Applicant obtained an Afghan driver’s licence and letter from the Afghan embassy which were genuine to prove his genuine identity. He had to resort to irregular means to obtain other documents the Department requested, including evidence of his marriage and good character in Pakistan. That the means by which the documents were obtained were irregular, does not necessarily mean that the relevant fact is untrue. This reflects the reality of not being able to provide the documentation required by advanced Western governments.

26. The inclusion in the Form 80 of only one sibling who was missing was immaterial to the citizenship application, and the Applicant’s incorrect information during the 6 November 2019 telephone interview was when he was caught off-guard. That he hung up reflects that he was uncomfortable with the untruth.

27. In his oral evidence, the Applicant gave another explanation for providing incorrect information during the 6 November 2019 telephone interview. He was driving and had a migraine and was confused. He provided a letter from his doctor about his migraines.

28. Mr Poynder concluded that refugees are not like other applicants for Australian citizenship. Because they have suffered and are at risk of persecution, they have been forced to flee their home country by irregular means. They have to do whatever is necessary to get evidence. That does not make them persons of bad character, ‘it simply reflects their lowly status when trying to gain a foothold in a safe place’. He concluded that the Applicant is a person of good character.

    Consideration

29. For the reasons that follow, I am not satisfied that the Applicant is a person of good character as required under section 21(2)(h) of the Act and the reviewable decision must be affirmed. It is therefore unnecessary to consider whether I am satisfied of his identity.

30. The term ’good character’ is not defined in the Act. This indicates that Parliament intended that the term be used in a ’broad way’ and to allow decision-makers to consider ’a range of events and conduct connected with the applicant’.[6] The expression ’good character’ requires a ’discretionary value judgment’ which is to be confined only by the subject matter, scope and purpose of the statutory provisions.[7]

    [6] Grass v Minister for Immigration and Border Protection [2015] 231 FCR 128, [60].

    [7] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574, [51].

31. The Citizenship Procedural Instruction 15 ’Assessing character under the Citizenship Act’ (CPI 15) identifies the legal requirements and related policy and procedures that apply to the assessment of an application for Australian citizenship under the Act.

32. I accept that to ensure consistency in decision making, CPI 15 ought to be followed unless there are cogent reasons to depart from it.[8]

    [8] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645.

33. Part 3.3 of CPI 15 states:

    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.

34. The term ’enduring moral qualities’ is defined in Part 3.3 of CPI 15 as encompassing characteristics which have been demonstrated over a very long period of time, distinguishing right from wrong and behaving in an ethical manner, conforming to the rules and values of Australian society.

35. Part 4 of CPI 15 states that, as a general proposition, an applicant of good character would, among other things, not practice deception or fraud in dealings with the Australian government or other organisations, for example intentionally providing false information or other material deception during visa and citizenship applications.

36. Part 11.1 of CPI 15 states that knowingly presenting incorrect information or a bogus document may reflect on a person’s character.

37. Beyond Proof refers to asylum seekers whose claims are genuine but who may not be believed because the person has provided false information or documents, or exaggerated or embellished the claims. The Applicant has succeeded in being accepted as a refugee in Australia and now holds a permanent visa.     

38. Stating the obvious, applying for Australian citizenship is subject to a different statutory and policy regime from that which applies to applying for protection in Australia. While the considerations Mr Poynder referred to apply to the latter, I am not persuaded that they are cogent reasons not to apply the policy that has been made in relation to citizenship, to a particular category of applicants; that is, those who have been granted protection visas based on false information and documents. That is the logical consequence of his submissions.  

39. I am not persuaded that the Applicant is genuinely ashamed that he provided false information or documents to the Australian government. He does understand that having done so has caused him a problem with becoming a citizen and he regrets that. On one version of his evidence, it seems that he did not think that the Australian government would find out that he had provided incorrect information and documentation. On the other version, he continued to provide it because he was scared of the consequences for him if he provided correct information. He feared being deported from Australia.  He ‘realised’ he had to provide correct information and documentation only after he received the letter from the Department dated 28 October 2020 putting to him adverse information.

40. Applying the citizenship policy, as summarised above, the Applicant knowingly provided false, and sometimes inconsistent, information and documents to the Australian government from his arrival in 2009 until May 2021. He signed a statutory declaration as recently as 5 September 2019 in which he stated that his old tazkera was lost in Afghanistan in 2001 and that he was applying for another, which he knew was untrue.  

41. He has not demonstrated the ‘enduring moral qualities’ required of an applicant for citizenship. I am not satisfied that the Applicant is a person of good character as required under section 21(2)(h) of the Act.

42. I emphasise that I am not making a finding that he is or is not a person of bad character.  That is not the test.

    Decision

43. The reviewable decision made on 10 June 2021 by the Respondent’s delegate to refuse to approve the grant of Australian citizenship is affirmed.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 6 December 2022

Dates of hearing:	12-13 January 2022
Counsel for the Applicant:	Mr N Poynder
Solicitors for the Applicant:	Mr S John
Solicitors for the Respondent:	Mr E Taylor