Hussain and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2020] AATA 376
•27 February 2020
Hussain and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 376 (27 February 2020)
Division:GENERAL DIVISION
File Number: 2018/2247
Re:Sajid Hussain
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:R CAMERON SENIOR MEMBER
Date:27 February 2020
Place:Melbourne
The Tribunal affirms the reviewable decision.
.........................[sgd]...............................................
R CAMERON SENIOR MEMBER
Catchwords
CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether the applicant is of good character – false and misleading conduct in dealing with immigration authorities – decision affirmed
Legislation
Australian Citizenship Act 2007
Cases
Abebe v The Commonwealth (1999) 197 CLR 510
Dovey v Minister for Immigration and Multicultural Affairs, Re [2001] AATA 935
Drake v Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634
Grass v Minister for Immigration and Border Protection [2015] FCFCA 44
Hassani v Minister for Immigration and Border Protection, Re [2018] AATA 1
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Khorn v Minister for Immigration and Multicultural and Indigenous Affairs, Re [2003] AATA 705
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Minister for Immigration v SGLB, Re (2004) 207 ALR 12Taradel v Minister for Immigration, Multicultural and Indigenous Affairs, Re [2005] AATA 1255
Secondary Materials
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
R CAMERON SENIOR MEMBER
27 February 2020
INTRODUCTION
The Applicant seeks review of a decision by the Respondent on 6 April 2018 refusing his application for Australian citizenship (“the reviewable decision”) under the Australian Citizenship Act 2007 (“the Act”).
Initially, the Respondent refused the application on the grounds that he could not be satisfied of the Applicant’s identity. At the commencement of the hearing the Respondent’s representative conceded that the Applicant had satisfied the identity requirements of the Act. The sole remaining issue to be determined was whether or not the Respondent was entitled to refuse the application by reason of the Applicant not being of good character within the meaning of section 21(2)(h) of the Act.
LEGISLATIVE BACKGROUND
Section 21(2) of the Act outlines the general eligibility criteria for a person to become a citizen:
General eligibility
A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
Section 24 of the Act provides:
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2),(3),(4),(5),(6),(7) or (8).
THE EVIDENCE BEFORE THE TRIBUNAL
Both documentary and viva voce evidence was before the Tribunal.
The documentary evidence consisted of:
(a)The “T” documents;
(b)Statutory declaration of the Applicant dated 9 October 2018; and
(c)Statutory declaration of his brother, Javid Hussein dated 9 October 2018.
There were a large number of references and statutory declarations deposing to the Applicant’s character that were in evidence. They have all been considered by the Tribunal. Several of these statements from close family members also explained the difficulties that they experienced residing in Pakistan, their inability to legitimately obtain refugee cards and other official Pakistani documentation, and how they arranged for what were described as “fake Pakistani identity documents for the family.” They were made by:
(a)His mother, Sakina on 9 October 2018;
(b)His wife, Binazir (unsigned);
(c)Abbas Sardar (unsigned);
(d)His half-brother, Nor Agha (unsigned);
(e)Qasim Ali Najimi on 8 October 2018; and
(f)Qand Agha Tanhi on 9 October 2018. [1]
[1] These six statements form part of exhibits A1 and A 3.
Documentary evidence concerning the Applicant’s mental health issues was tendered from:
(a)Sangeeta Sutharsanan, Registered Psychologist, dated 9 April 2019;
(b)Anna Schwarzenberg from “Foundation House”, Counsellor, dated 7 June 2019; and
(c)Monash Health.
Viva voce evidence was given by:
(a)The Applicant;
(b)The Applicant’s brother, Javid Hussein (who also provided a statutory declaration); and
(c)The manager of the Applicant’s employer Moorabbin Cabinets, Marianne Goodall (who also provided letters of reference).
RELEVANT FACTS
The Applicant arrived in Australia on 18 May 2011 as an Unauthorised Maritime Arrival. In his biodata interview conducted on that day he claimed to be Mohammad Sajid Mohammadi, aged 17 years, a Shia Muslim Afghani of Tajik ethnicity.
In an entry interview conducted on 11 August 2011 (a copy of which was signed by the Applicant) he claimed that his true identity was Sajid Hussain, born on 25 October 1993, of Pakistani nationality and Khoshi ethnicity. He declared that he was born in Parachinar and was a citizen of Afghanistan.[2] This document under the heading “Important Information” warned the Applicant that he was expected to give true and correct answers to the questions asked. There was an additional warning that he should understand that if the information he gave in any future interview were to be different from what he stated in the interview it could raise doubts about the reliability of what he had said.[3]
[2] The document forms part of document T 5 of the T documents and commences at page 62.
[3] The warning is at page 63 of the T documents.
It is said in the Respondent’s Statement of Facts, Issues and Contentions that the Applicant’s citizenship was incorrectly recorded as Afghanistan in the Entry Interview record (which was signed by the Applicant as noted above), but was subsequently corrected to show his citizenship as that of Pakistan.[4] It is not apparent from an examination of the material how the Applicant’s citizenship was incorrectly recorded given that the Applicant and an authorised interpreter signed the interview record, and in the light of the warning contained in the form as noted earlier. The record of the so-called correction is contained in what is described as an “Entry Interview Continuation Sheet”; it does however note that the citizenship could not be changed on the electronic form. However, in the Applicant’s Statutory Declaration in support of his claim for protection, subsequently made on 29 August 2011, he declared that during the entry interview there was a misunderstanding about his citizenship and ethnicity details. He then declared that he was a citizen of Pakistan and an ethnic “Koshi”.[5]
[4] Footnote 2 of the Respondent's Statement of Facts, Issues and Contentions dated 24 January 2019 is referred to.
[5] The Statutory Declaration made by the Applicant on 29 August 2011 is part of document T 5 of the T documents at pages 132–138.
On 29 August 2011, the Applicant made an application for a Protection (Sub class 866) visa (“the visa”). The Application stated that his citizenship at birth was Pakistan.[6] He made a statutory declaration in support of that application on 29 August 2011. In that statutory declaration he claimed to fear harm at the hands of the Taliban if he returned to Pakistan on account of his Khoshi ethnicity and religious beliefs. In paragraph 3 of the statutory declaration he stated that he was “a citizen of Pakistan” and at paragraph 11 he also stated that he was a “Pakistani national” and did not have the right to “legally enter and reside in any country other than Pakistan.” In further support of the application he provided electronic copies of a Pakistani National Identity Card, the biodata page of his Pakistani passport used to travel to Australia, School Certificates from Pakistan and a Domicile Certificate from Parachina, Pakistan. Those documents recorded his name as “Sajid Hussain”. In answer to question 56 which asked if he had difficulties obtaining a travel document in his country of nationality the Applicant answered yes. He said that his passport was genuine but had an incorrect date of birth (namely, 1 January 1988).
[6] Page 101 of the T documents.
In his application for Australian Citizenship by Conferral made on 28 October 2015 the Applicant stated that he was a citizen of Afghanistan and born in Parachinar, Afghanistan.[7] The application for citizenship by conferral contained a warning to the Applicant that it is an offence under section 50 of the Act to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application. The document also contained a declaration made by the Applicant that the information he had supplied in the form was complete, truthful and correct in every detail.
[7] Page 212 of the T documents.
Several documents were provided by the Applicant’s Registered Migration Agent to the then Department of Home Affairs (now the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs) (“the Department”) on 19 September 2017 including:
(a)A Statutory Declaration made on 19 September 2017;[8]
(b)Afghan National ID card (Taskera) and translation;
(c)School leaving certificate and character certificate from Uswa Public School;
(d)Titre de Voyage issued by Australia, which included visas issued by Pakistan; and
(e)Afghan marriage certificate and translation.
[8] The Statutory Declaration of 19 September 2017 made by the Applicant (found at page 232 of the T documents) declared amongst other things that he had provided any official identity documents that he had ever been issued with by any other government authority outside Australia and was therefore unable to provide any further such documents. There was also the standard declaration by him that he understood that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence. He further declared that he believed that the statements in the declaration were true in every particular.
On 19 September 2017, the Applicant’s Registered Migration Agent, on behalf of the Applicant, also submitted to the Respondent a Form 80 “Personal particulars for assessment including character assessment”[9] (“Form 80”) signed by the Applicant. The document answered several specific questions. One of those questions was whether the Applicant currently had citizenship from any country and if so how it was gained. The response provided by the applicant was “Afghanistan-birth”. He also declared that all his immediate family members were citizens of Afghanistan. Another declaration made by him was that all of his immediate relatives, save for a brother Javid in Australia, resided in Pakistan. The Form 80 contained a warning under the heading “Integrity of the Application” to the Applicant that he should be aware that if he provided the Department with fraudulent documents or claims, it may result in processing delays and possible refusal of the application. Question 53 of the Form 80 also included a declaration made by the Applicant that the information he had supplied in or with the form was complete, correct and up-to-date in every detail.
[9] The Form 80 commences at page 311 of the T documents. The covering email from the Applicant’s Registered Migration Agent lodging the Form 80 with the Department of Immigration and Border Protection is at page 310 of the T documents.
On 19 October 2017, an officer of the Respondent sent a letter to the Applicant, care of his Registered Migration Agent, inviting him to comment on adverse information concerning his application for Australian citizenship by conferral.[10] The contents of that letter are referred to for their full force and effect. However, it identified several discrepancies in his application history with the Respondent concerning the provision of documentation which contradicted previous identity information and the alleged provision of false and misleading statements concerning his personal circumstances. Specifically those discrepancies fell into several categories as follows:
(a)Information provided during Biodata - Direct Arrival Interview 18 May 2011;
(b)Information provided during initial Entry Interview on 11 August 2011;
(c)Information provided during Protection (sub class 866) visa application lodged on 18 October 2011; and
(d)Information provided in support of citizenship application lodged on 28 October 2015.
[10] The letter is document T 19 of the T documents.
Consequently, the 19 October 2017 letter, having identified the series of discrepancies referred to above, requested from the Applicant an appropriate explanation,[11] and where appropriate, the provision of further information. Importantly, it requested that the Applicant provide a further statutory declaration outlining his response and providing the information sought. Details of the explanations sought and further information required need not be reproduced in these reasons.[12]
[11] In several instances very specific questions were asked of the Applicant to explain inconsistencies in the evidence or material provided.
[12] These specific pages of the letter from the Department to the Applicant’s Registered Migration Agent concerned are to be found at pages 343 to 346 of the T documents.
On 21 January 2018, in a letter from the Applicant’s Registered Migration Agent provided a substantive response to the Department’s 19 October 2017 letter.[13] Once again the contents of this letter speak for themselves. The Applicant admitted that he had misled the Department and provided false information. Among other things, he admitted to providing false information to the Department regarding his citizenship and his place of birth in his application for the visa. He also admitted that the documents provided in that application were not genuine. It should be noted that there was an explanation for this conduct contained in that letter. It included that at the time the Applicant provided the false information he was suffering from severe mental health problems and deeply afraid for his life. It was said that at the time he was under considerable stress. Since then, the writer of the letter stated, the Applicant had retained “better advice and sought to be honest with the department.” It also stated that “[h]e has consistently acted in compliance with Australian law.” It was submitted that on balance there should be a finding that he satisfied the character requirements of the Act.
[13] The letter can be found at pages 358 to 361 of the T documents and forms part of document T 22.
Under cover of an email sent to the Department by the Applicant’s Registered Migration Agent on 12 February 2018 a Form 1023 “Notification of incorrect answers” was provided.[14] He stated that his present country of citizenship was Afghanistan, not Pakistan as had previously been claimed by him on several occasions. In response to a question which asked for information that was incorrect the Applicant furnished the response “I stated that my parents and grandparents were born in Pakistan and had lived in Pakistan their whole life.” In response to the question requiring correct details the Applicant stated “my parents and grandparents were born in Koshi in the Logar Province of Afghanistan.” In response to a question asking why incorrect information was provided, the Applicant responded that his “family obtained fraudulent Pakistani identity documents through the payment of bribes to Pakistani government officials.” He offered an explanation as to why he did not disclose this, stating that when he was in detention he “was afraid that other people from Parachinar would find out about my case and in particular about us not having genuine documents and would inform the Pakistani Authorities.” He feared this would have “serious consequences” for his family in Pakistan. The Applicant apologised for having made what he described as a “mistake”.
[14] The Form 1023 is at pages 387 of the T documents.
A further statutory declaration made by the Applicant on 12 February 2018 was submitted to the Department by his Registered Migration Agent under cover of an email on 13 February 2018. The contents of that statutory declaration are referred to in their entirety for their full force and effect.[15] It is stated to be made in response to the “invitation to comment on adverse information dated 18/10/2017.” He declared that he was not, nor ever had been, a Pakistani citizen. Although born in Pakistan, he was not eligible for Pakistani citizenship as his parents were not Pakistani citizens. He stated the reason for not disclosing this information to immigration officials upon arrival in Australia was that when he realised he was not a Pakistani citizen he was afraid he could be deported to Afghanistan. He also feared being jailed in Malaysia for having travelled there on what he described as “a fake passport.” He stated that he was extremely afraid that the Australian and/or Malaysian governments would inform the Pakistani government that his family had been living in Pakistan for a long time using fraudulent documents. He stated that he was terrified this would lead to his family being deported from Pakistan to Afghanistan. He decided that in order to avoid this he should tell the Australian government that he was born in Parachinar, Pakistan and to provide copies of fraudulent Pakistani documents.
[15] It is at page 437 of the T documents.
In paragraph 21 of the statutory declaration of 12 February 2018 he also noted that he had been asked to provide information on how he obtained his “tazkira”. (It should be noted that a taskera is the primary identification document for Afghan citizens. It is required for the purposes of access to most government services such as education, employment and to acquire other forms of identification such as passports and a driver’s licence.) He described how he gave his photos to a family friend who was travelling to Kabul. That person also took a copy of his uncle’s taskera and the “government officials” issued a taskera for the Applicant based on his family’s details in the “official records”. His father-in-law then took the Applicant’s taskera to Kabul where it was translated and registered with the Ministry of Interior.
Critically, the statutory declaration of 12 February 2018 contained the customary words that the maker of the document understood that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence.
Subsequently, in the witness box, in answer to several questions in cross examination, the Applicant admitted that the contents of paragraph 21 of the statutory declaration of 12 February 2018 were false. In fact he went and obtained the taskera himself in Afghanistan. He also admitted this in his witness statement — the contents of which were adopted by him in the witness box. When asked a specific question in cross examination why he lied, the Applicant stated he was concerned that his permanent residency might be taken away. He was asked when he decided to tell the truth, his response was when he was refused citizenship and a visa was refused to his brother. He said he felt bad for his brother and decided to tell the true story. More will be said about this later but it should be observed this does not reflect well upon the Applicant. This is because he continued to give false and misleading information to the Department after he had well and truly been exposed. It was also as late as February 2018. Regrettably, concerning this issue he did not heed the “better advice” that he had retained (referred to in his Registered Migration Agent’s letter to the Department of 21 January 2018) and was not honest with the Department.
It should also be observed that in his statutory declaration of 9 October 2018 he did acknowledge that he had “provided false information to the Department” and admitted to “telling lies to the Department of Immigration”. Several matters were canvassed in that statement. He stated that initially he indicated to the Department on his arrival in Australia that he was a citizen of Afghanistan; however he quickly changed his mind. He did not want the Department to process his case as an Afghan National. He also admitted that on arrival he gave the alias of “Mohammed Sajid Mohammadi”. This was said to be because he wished to minimise the chance that enquiries should be made about him overseas. There were also other admissions concerning representations made with respect to his family composition and Pakistani identity documents.
Further, in his statutory declaration, as adopted in the witness box, he admitted that he fabricated an explanation about “Khoshi people” having fled Afghanistan about 200 or 300 years ago. He gave evidence that he thought that stating that they had fled a long time ago would better fit with his “false claim to be a Pakistani.” Additionally, he stated that he claimed to be a Pakistani national not having the right to legally enter and reside in any other country than Pakistan. This, he stated, was untrue because his parents were born in Afghanistan and he is a citizen of that country.
Both in his statutory declaration and in his evidence from the witness box the Applicant discussed how he obtained his Pakistani identity documents. These include a Computerised Pakistani National Identity Card (“CNIC”) and a Pakistani passport. He stated that he had paid for his CNIC and believed that the officials who issued them knew that he was not a Pakistani national. He stated they were prepared to take money in exchange for producing the false documents (or perhaps what should have been said, legitimate documents based on false information) and this is very well known in Pakistan. He contended that this practice emerged with Afghan families so that they could stay and reside in Pakistan despite efforts to remove them. His evidence also reiterated much of what he had said in earlier documentation about the concerns he and his family had about being deported to Afghanistan. There was also adoption of the reasons why he left Pakistan, identified in paragraphs 14 to 39 of his statutory declaration made at the time of his application for the visa on 29 August 2011.
The Applicant also reiterated his fears of being subject to overseas enquiries, which might have led to his removal from Australia, not being granted a protection visa or facing prosecution in places such as Malaysia and Pakistan. In evidence he also said there was an interpreter on Christmas Island who informed him that he would not be accepted in Australia and might well be sent back to Indonesia. Quite why is not altogether clear, but it appeared that this was a motivating, or predominant feature or reason why he, as he put it, “changed his nationality to Pakistani.” On several occasions he also explained telling lies on the grounds that he did it to save his life and that of his family in Pakistan. The contents of the statement and his evidence from the witness box are referred to and had been taken into account by the Tribunal.
In many respects the Applicant’s brother, Javid, corroborated several aspects of the Applicant’s evidence. Particularly, concerning the procurement of false documents or, more accurately, authentic documents procured with false information.
Marianne Goodall, a co-proprietor of the Applicant’s employer Moorabbin Cabinets, gave evidence. As the Tribunal commented at the time of the hearing she was a most impressive witness. She filed two letters of support for the Applicant dated 10 December 2018 and 10 July 2019 which were in evidence and reaffirmed by her.[16] She stated that the Applicant has shown himself to be an honest, trustworthy, reliable and hard-working employee. He was initially employed as what is described as an “edgebander operator” and very quickly demonstrated good skills in that field. As a result of his dedication and good work Ms Goodall informed the Tribunal that her business has now given the Applicant a Certificate III Cabinet Making apprenticeship.
[16] The letter from Ms Goodall dated 10 December 2018 formed part of exhibit "A 2".
Ms Goodall also stated that she had been informed by the Applicant of what she described as the errors in material provided to the Department and also the fact that he had made false statements to it. She stated that nonetheless she considers him to be an honest person. She said she reached this conclusion by observing his commitment to his work and making general observations of him in the workplace. She emphasised her belief in giving people a fair go, that she trusts the Applicant and that he has made a very good impression on her. She is more than willing to continue to employ him.
GOOD CHARACTER
The Act does not contain a definition of either good or bad character. The concept however is well known in the context of immigration law let alone the general law. Frequently, reference is made (as both parties did in submissions in this matter) to the often cited passage of Lee J concerning the concept in the Full Federal Court decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs.[17] It was cited quite properly, as an accurate statement of the law. His Honour observed as follows:
Unless the terms of the Act and Regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers (ACT) (1994) 117 FLR 455 at 459-460 per Miles CJ; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliffe, Lord Denning at 1138. 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: see Re Davis (1947) 75 CLR 409 at 416 per Latham CJ; Clearihan at 461, per Miles CJ. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
[17] (1996) 68 FCR 422 at 431. This case is apposite in that, although a visa refusal case under the MigrationAct 1958, that Act contained a reference to “good character” and was decided before the 1998 amendments which removed such reference and substituted the “character test”.
Both parties accept that in assessing whether or not a person is of good character, the decision-maker should consider a range of events and conduct in connection with the person. Ultimately, this is an issue of fact.[18]
[18] Both parties in their statements of Facts, Issues and Contentions referred to the decision of Grass v Minister for Immigration and Border Protection [2015] FCFCA 44 at [60].
Additionally, there is of course the guidance offered by the definition of “good character” contained in the current Citizenship Policy (“the Citizenship Policy”).[19] Generally, the Delegate of the Minister will apply the Citizenship Policy in the absence of good reasons for doing so.[20] He or she is free to adopt such a policy in order to guide him or her in the exercise of the statutory discretion, provided the policy is consistent with the statute. Chapter 11 of the Citizenship Policy “Character” is referred to in its entirety for its full force and effect.[21] However, some aspects of the Citizenship Policy warrant reference. The phrase “good character” encompasses concepts which include:
(a)characteristics which have been demonstrated over a very long period of time;
(b)distinguishing right from wrong; and
(c)behaving in an ethical manner, conforming to the rules and values of Australian society.
[19] The current version commenced on 1 June 2016.
[20] See Drake v Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634 at 640 per Brennan J and Hassani v Minister for Immigration and Border Protection, Re [2018] AATA 1 at [19] – [23].
[21] It is exhibit “R 2”.
It prescribes that for a decision-maker to be satisfied that an applicant is of good character he or she must demonstrate “good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship process.”[22] (Emphasis added.)
[22] Page 468 of the Supplementary T documents.
Further characteristics of good character referred to in the Citizenship Policy include that an applicant of good character would:
(a)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.[23] (Emphasis added.)
[23] Page 469 of the Supplementary T Documents the third dot point under the heading “Characteristics of good character".
It is noted in the Citizenship Policy under the heading “Weighing up the character decision” that when an assessment about whether an applicant is of good character is being undertaken that requires the consideration of an aggregate of qualities. A decision-maker must apply “community standards” and ask themselves the following questions:
(a)Would a person of good character have behaved the way the applicant did?
(b)Has the applicant behaved in accordance with Australia’s community standards?
It is then observed that a decision-maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. It is stated that in most cases this excursion into the history of the applicant’s behaviour will commence at a point prior to any visa application being made.[24]
[24] Pages 467 and 468 of the Supplementary T Documents.
In the Applicant’s submissions concerning the issue of character, reference was made to several well-known decisions concerning how a decision-maker should treat an applicant for citizenship where it is established that there have been lies told or a fabrication of evidence. In particular, there is the case of Abebe v The Commonwealth[25] where it was held by the High Court that it is well-known that the pressure of circumstance may lead some applicants for refugee status to, as they put it, “embroider an account of his or her history” and this needs to be looked at with some degree of realism as, the Court noted, often such persons are in a desperate battle for freedom if not life itself. Similarly, the Applicant in his submission also referred to an often cited passage of Gleeson CJ in Minister for Immigration v SGLB[26] where Gleeson CJ observed that refugee cases involve special considerations where credibility is an issue such as where asylum seekers fabricate evidence.
[25] (1999) 197 CLR 510.
[26] (2004) 207 ALR 12.
Developing this contention, the Applicant submits that having provided false statements to the Department “does not have a sufficient impact upon his character as a human and prospective Australian citizen, to deny him that status for this reason.” It was submitted that his motivations for doing so were plain. Having now confessed to what he did, he is said to be remorseful and has repented.
Another contention articulated by the Applicant on his behalf was that if he had not revealed the truth to the Department voluntarily he would have otherwise satisfied the criteria for citizenship and it would have been granted to him. It is contended that he told the truth at considerable personal cost without any benefit to him. Therefore, to tell the truth required courage and stands to his credit. Ultimately, it was submitted this conduct was a testament to his honesty.
Another matter that should be recorded arises from the evidence of Ms Goodall. The Tribunal observed in dialogue with counsel for the Applicant that it found her to be a most impressive witness. It was contended that if her evidence is accepted in its entirety (which it is) that it was sufficient to establish that the Applicant possesses the relevant or requisite character traits to satisfy the applicable character test under the Act.
There was evidence before the Tribunal of mental health issues suffered by the Applicant. His brother gave evidence to this effect. He stated that the Applicant had been mentally unwell even prior to leaving Pakistan. There were clinical notes from Monash Health concerning the Applicant’s presentation there in the earlier parts of 2019 with a variety of mental health problems. There is also a report from Ms Sangeeta Sutharsanan, a registered psychologist who had seen the Applicant on three occasions between January and March 2019; and recorded that the Applicant presented with post-traumatic stress disorder, depression with suicidal intent, and anxiety symptoms. There was also a report from Ms Anna Schwarzenberg, a counsellor at Foundation House, attesting to the difficulties that the Applicant has experienced concerning these matters.
The Respondent developed several contentions in opposition to those of the Applicant. The starting point or perhaps the fulcrum of the Respondent’s contention centred around the fact that the Applicant had engaged in a consistent and repeated pattern of conduct over many years of making false declarations to the Department and other authorities concerning his name, date of birth, country of nationality and family composition. Particular emphasis understandably, was placed upon the Applicant’s willingness to make false declarations and knowingly proffer false documents.
Additional emphasis was placed upon the fact that the Applicant’s conduct was undeniably serious. Lest it needs to be said, the Respondent also emphasised that making a false statutory declaration is a serious matter and carries a criminal penalty. There were several false statutory declarations made by the Applicant.
The obligation of truth and candour (often also referred to as “honesty and integrity”) as being of paramount importance in the immigration process has been emphasised in many cases before this Tribunal. Naturally, an obligation of truth and candour in dealing with decision-makers in the course of the migration process (where the truth is known only to the person making the statement, or likely to be known only to them) is of fundamental importance to ensuring the proper control which this country exercises in citizenship applications, and, of course, to the overall integrity of the immigration regime that the legislature has put in place. Therefore, providing false information or making false and misleading statements, together with incorrect or incomplete statutory declarations, must necessarily be regarded as serious misconduct on the part of any applicant whether for citizenship, a visa or any other right under the relevant migration legislation.[27]
[27] By way of example reference is made to the decisions of Handley DP in Khorn v Minister for Immigration and Multicultural and Indigenous Affairs, Re [2003] AATA 705 and McMahon DP in Lachmaiya v Department of Immigration and Ethnic Affairs, Re (1994) 19 AAR 148.
As was observed by McCabe SM (as he then was) in Taradel v Minister for Immigration, Multicultural and Indigenous Affairs,[28] when dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting similarly because the integrity of the immigration system depends on individuals telling the truth about the personal circumstances and history.
[28] [2005] AATA 1255. This authority was cited with approval by Tavoularis SM in Eidson v Minister for Immigration and Border Protection, Re [2017] AATA 1354 in finding that conduct such as, amongst other things, making false declarations including identity and that of one’s relatives, is clearly of a serious nature.
CONSIDERATION
Thus in this context it is possible that an applicant might be a person otherwise considered to be of good character and in other aspects of his or her life conduct themselves in a way that would be recognised as good, but still be classified or identified as not being of good character, and therefore unsuccessful in the application, in an immigration sense.[29]
[29] Dovey v Minister for Immigration and Multicultural Affairs, Re [2001] AATA 935 at [27].
The Tribunal cannot accept on the material before it that the Applicant satisfies the character requirements of the Act to enable his application for Australian citizenship by conferral to be granted.
The Tribunal observed the Applicant in the witness box to be someone who, despite comparatively limited levels of formal education, demonstrated a capacity to appreciate fundamental concepts and obligations. He was indeed someone who was possessed of a good ability of literacy and comprehension. His command of the English language was good.[30] The observations made by the Tribunal were to a considerable extent consistent with those made by Ms Goodall about the Applicant’s capacities as demonstrated in the recent workplace example of Moorabbin Cabinets. He did appear as someone who was a self-starter, reasonably highly motivated and quite capable of protecting his own interests when the occasion calls for it. He appeared to be someone who had a well-developed sense of what is right and what is wrong.
[30] This was confirmed by another witness Mr Tanhi in his statement which formed part of exhibit "A 2". That the Applicant has acquired a good working knowledge of the English language in his time in Australia does provide further evidence of his personal characteristics referred to in this paragraph by the Tribunal. A Statutory Declaration of Mr Najimi made on 30 November 2017 stated that the Applicant was a good English speaker who often assisted other Afghans with informal interpreting when needed.
As noted earlier, several statements were in evidence before the Tribunal concerning the Applicant’s character. Those statements included those of his family which explained the difficult circumstances that the Applicant and his family experienced in Pakistan and the Applicant’s travels to Australia. These statements also explained why the Applicant obtained false Pakistani documents as he did and continued to represent himself as being a citizen of Pakistan. These references identified fears that the Applicant and his family had for their safety. They need not be repeated. There were other references deposing to the Applicant’s standing and role in the Afghan community in Australia. The Tribunal has considered these references. Overall, they tend to fall into the second category of reference made by Lee J in Irving earlier in these reasons at paragraph [32], namely the Applicant’s good standing, fame or repute within his community. There is less emphasis in them on his enduring moral qualities in the relevant sense. Additionally, there seems to be a tendency on the part of these referees to treat the conduct of the Applicant in making false statements and presenting false documents to the Department in a more generalist way, rather than considering their individual components, together with the continuing pattern of them including, but not limited to the several occasions on which the Applicant made a false statutory declaration which as observed earlier, potentially has criminal law consequences.
Additionally, there was the evidence of Ms Goodall which has been referred to earlier. The Tribunal accepts Ms Goodall’s evidence. However, it cannot accept the contention that if such evidence is accepted in its entirety, it is sufficient to establish that the Applicant possesses the requisite character traits to satisfy the character test under the Act. The Tribunal accepts fully that the Applicant has applied himself diligently in the course of his employment with Moorabbin Cabinets. There is no doubt in the Tribunal’s estimation that Ms Goodall runs an excellent workplace, and has given the Applicant a golden opportunity to forge a career that should enable him to have a secure financial future, not to mention a rewarding career. Understandably, he has seized the opportunity. Whilst Ms Goodall was aware, as she put it, that the Applicant made an error about his country of origin in his applications, and also that he made false statements, once again she was not aware of the extent, nature and pattern of the deception that the Applicant engaged in in his dealings with the Department. Whilst she expressed the view that the Applicant is an honest person, by reason of the Applicant’s history outlined earlier in these reasons that opinion must have some more limited weight in this setting.
The Tribunal is also mindful of the special considerations applicable to refugee cases as were referred to in Abebe and SGLB above at paragraph [39]. The Applicant’s background and history in Pakistan and the genuine fears he had about several matters including that of his own safety, not to mention that of his family, cannot be downplayed. The Tribunal does give the Applicant significant latitude by reason of this fact. However, notwithstanding this latitude, the Tribunal considers that these special considerations have been eclipsed by the Applicant’s subsequent and continuing pattern of misconduct. It should not be forgotten that he arrived in Australia in May 2011. One can well understand why he may have been reluctant to be fully candid with immigration authorities in the early dealings he had with the Department after his arrival in that year. However, by the time that he came to make his application for citizenship by conferral he had been in the country for approximately four years. During that time he had an opportunity to appreciate the integrity of the Australian migration system, the operation of the rule of law here, the confidentiality of the immigration system and surely by that time must have appreciated that his fears about telling the truth were not well-founded or no longer applied. Surely, he must have appreciated this at the time that he made his statutory declaration in February 2018. He should have known better.
Additionally, his application for Australian citizenship by conferral was prepared with the assistance of a Registered Migration Agent. The Tribunal infers without doubt that they would have provided advice to the Applicant that should have allayed any residual fears he may have had about telling the truth. Once again it should be observed, given the declarations required from him and warnings concerning the application of section 50 of the Act, in the application for Australian citizenship by conferral previously referred to, it seems inconceivable (and the Tribunal infers) that the Registered Migration Agent would have emphasised to the Applicant the necessity to provide complete, truthful and correct information in support of the application. It is telling that the Applicant did not do so.
Another matter that does not reflect at all well upon the Applicant was the subsequent proffering of two statutory declarations that were incorrect on his own admission after he had made his application for Australian citizenship by conferral. These statutory declarations were made after the Applicant had retained the services of the Registered Migration Agent and surely he must have been well aware of his obligations of candour and not to mislead the Department in any respect. He declared they were true and correct, and acknowledged in them that there were potential criminal penalties if they were false. He did not give any evidence that he did not understand the warning contained in each of his statutory declarations that a person who intentionally makes a false statutory declaration is guilty of an offence.
The Tribunal is also mindful of the mental health issues suffered by the Applicant that have been referred to above. Although the expert material concerning the Applicant’s mental health issues is of more recent origin, the Tribunal accepts the evidence of other witnesses that the Applicant has suffered from these afflictions throughout his time in Australia. Similarly, some allowance should be made for the effect that such conditions had upon him and his capacity to exercise sound judgement. Nonetheless, the pattern of conduct over several years in the Applicant’s dealing with the Department that have been outlined earlier must be repeated. It is all the more troubling that some of this conduct has occurred when he had retained the services of a Registered Migration Agent (who initially lodged the application for Australian citizenship by conferral on his behalf) and informed that person of his mental health difficulties. It will be recalled this was referred to in her fairly extensive submission to the Department on 21 January 2018. His behaviour is also puzzling given the observations that were previously made in these reasons about the Applicant from seeing him in the witness box — his command of English and other commendable personal characteristics. Notwithstanding any mental health issues that he had, the Tribunal finds that with professional assistance he must have known that what he was doing from time to time in his dealings with the Department was wrong. Yet he proceeded to continue with this pattern of behaviour over some years.
It was really only when the Department found several inconsistencies in his previous dealings, causing it to send the letter of 19 October 2017, that the Applicant started to candidly admit his wrongdoing. Even then, it was not until much later in the piece, when these proceedings were on foot, that he even admitted that paragraph 21 of his statutory declaration of 12 February 2018 was false. His admissions of provisions of false and misleading material and false documents to the Department only came very late in the piece. Certainly, this was well after he had made his application for Australian citizenship. Given the lateness of his expressions of remorse, repentance and apology the Tribunal cannot place significant weight on them.
On an objective assessment of the various matters that have been canvassed in these reasons, including the provision of false and misleading information together with false documentation to the Department, it does not reflect well on the Applicant’s enduring moral qualities and character as identified in the several authorities previously referred to, not to mention the Citizenship Policy. A person of good character would not have behaved in the way that the Applicant did at the relevant time, or over the time span applicable. To adopt the language of the Citizenship Policy, looking at each of the individual facts relied upon by the Respondent, the Applicant’s behaviour holistically over many years reflects badly on him. Also adopting the language from the Citizenship Policy, he did not demonstrate good enduring/lasting moral qualities that have been evident before his visa application and throughout the migration and citizenship process when he engaged in it.
In the circumstances the Tribunal also finds that the Applicant’s conduct overall does not meet the expectations of the Australian community and he has not behaved in accordance with Australia’s community standards. In such a setting it would be expected that citizenship would not be conferred upon him at this time.
The Tribunal should note that these findings do not deprive the Applicant of any rights that he currently holds and that he can apply for Australian Citizenship in the future, when, presumably he can demonstrate a longer period of positive contribution to the Australian community. As observed by Lee J in Irving, a person who has been found to be a person of bad character, may nonetheless show that he or she has reformed and become a person of good character.
CONCLUSION
The Tribunal affirms the reviewable decision.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member R. Cameron
......................[sgd]......................................
Associate
Dated: 27 February 2020
Date of hearing: 19 September 2019 Solicitors for the Applicant: Clothier Anderson Immigration Lawyers Counsel for the Applicant: Angel Aleksov Solicitors for the Respondent: Australian Government Solicitor Advocate for the Respondent: Melinda Jackson
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