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

[2022] AATA 1064

Jamil and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 1064 (9 May 2022)

Division:GENERAL DIVISION

File Number:2021/3189          

Re:Jamshid Jamil

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:9 May 2022

Place:Brisbane

The decision under review is affirmed.

.............[SGD].....................

Deputy President J Sosso

CATCHWORDS

CITIZENSHIP – application for citizenship by conferral refused – criminal charges for unlawful stalking and using a carriage service to menace, harass or cause offence withdrawn – character references in support of Applicant – social media activity indicating support for extremist views and violence – good character requirement not satisfied –decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574; 165 ALD 39

Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Minister for Home Affairs v G and Another (2019) 266 FCR 569

Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326

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

SECONDARY MATERIALS

Department of Immigration and Border Protection, Citizenship Procedural Instructions (26 February 2021)

Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)

REASONS FOR DECISION

Deputy President J Sosso

9 May 2022

INTRODUCTION

1. Mr Jamshid Jamil (the Applicant) seeks review of a decision of a Delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) of 21 April 2021 refusing the grant of citizenship by conferral, pursuant to s 24 of the Australian Citizenship Act 2007 (Cth) (the Act) – Exhibit 1 T16 pp. 156 – 172.

2. The Applicant was born in Kabul, Afghanistan, in 1983 and arrived in Australia on 5 February 2010 as an illegal maritime arrival – Exhibit 1 T16 p. 160, Exhibit 2 p. 2 para 3.

3. On 17 March 2011, the Applicant was granted a Protection (Subclass 866) visa, and he subsequently sponsored his wife and children to come to Australia. The Applicant currently holds a Resident Return (Subclass 155) visa which was granted to him on 28 April 2020 – Exhibit 2 p. 2 para 4.

4. On 31 March 2015, the Applicant lodged an application for Australian citizenship by conferral. This application is dated 25 March 2015 – Exhibit 1 T4 pp. 11 – 20.

5. Due to deficiencies with the information provided, this application was deemed invalid on 7 April 2015 – Exhibit 2 p. 2 para 5.

6. On 6 May 2015, the Applicant provided further information and was deemed to have lodged a valid application for citizenship – Exhibit 1 T4 pp. 22 – 23, Exhibit 2 p. 2 para 6.

7. On 11 December 2020, an officer of the Department of Home Affairs (the Department) wrote to the Applicant giving him an opportunity to comment on, or provide an explanation about, adverse information the Department had received. The information concerned issues about whether the Applicant was a person of good character, and about his identity – Exhibit 1 T10 pp. 92 – 109.

8. The only issue before the Tribunal relates to good character. The legal representative of the Minister did not press the issue of the Applicant’s identity at the Hearing.

9. The character issue concerns, firstly, social media posts which the Applicant had commented on and, secondly, a conviction in the Brisbane Magistrates Court for failure to appear in accordance with an undertaking, together with charges for unlawful stalking and using a carriage service to menace, harass or cause offence – Exhibit 1 T10 pp. 97 – 103. Both of these matters are discussed in detail below.

10. On 2 February 2021, Ms Roya Majd, Senior Migration Agent, on behalf of the Applicant, forwarded to the Department a number of documents, including various Statutory Declarations and examples of positive social media posts made by the Applicant – Exhibit 1 T14 pp. 127 – 135, T15 pp. 136 – 155.

11. On 21 April 2021, a Delegate of the Minister refused the Applicant’s application for citizenship on the basis that the Applicant did not meet the good character requirement of s 21(2)(h) of the Act – Exhibit 1 T16 pp. 156 – 172.

12. The Delegate did find, however, that the Applicant met the following criteria contained in s 21(2) – Exhibit 1 T16 p. 162:

    (a)s 21(2)(a) – the Applicant was 18 or over at the time of his application;

    (b)s 21(2)(b) – the Applicant was, and remains, a permanent resident;

    (c)s 21(2)(c) – the Applicant satisfied the general residence requirement;

    (d)s 21(2)(d) – the Applicant understood the nature of the citizenship application;

    (e)s 21(2)(e) – the Applicant possesses a basic understanding of the English language; and

    (f)s 21(2)(f) – the Applicant has an adequate knowledge of Australia and the responsibilities and privileges of Australian citizenship.

13. The Delegate did not assess the Applicant pursuant to s 21(2)(g), namely, whether it is likely that he would continue to reside in Australia – Exhibit 1 T16 p. 162

14. The Delegate dealt, firstly, with the conviction for failure to appear in Court in accordance with the Applicant’s undertaking – Exhibit 1 T16 pp. 163 – 164:

    “The conviction was for a ‘Failure to appear in accordance with undertaking’. You were invited to comment on the court outcome and the circumstances surrounding your conviction.

    In your response to the Invitation to comment on adverse information letter you make the following statements in a statutory declaration:

    -You have never committed any crimes in your life.

    -In 2016 an allegation was made against you. This allegation was subsequently withdrawn ‘very quickly’ by the person who made the allegation.

    -The recorded conviction is in relation to the withdrawn allegation.

    -You did not attend the court because you were unaware you had to attend.

    You also provided a number of court documents related to the court outcome and a statement from the other party involved.

    In assessing your response and ultimately the severity of the recorded conviction, I can see that from the records you have provided, that you and the other party involved in the matters surrounding your conviction entered into a Justice Mediation process. This process resulted in the issuance of a Justice Mediation Agreement, signed by both you and the other party involved, requesting additional charges of ‘Unlawful stalking’ and ‘Using a carriage service to menace, harass or cause offence’ be discontinued. As a result, these additional charges were finalised by the court as ‘No evidence to offer’. Given that these additional charges were never pursued, I am prepared to accept that they do not paint a negative picture of your character, particularly in light of positive comments made by the other party involved in their statutory declaration regarding you and your character.

    I have also considered that for the conviction that has been recorded, the courts decided to impose no penalty beyond recording of the conviction itself. In light of the Justice Mediation process you entered into, I am also prepared to accept that you may not have been aware that you still needed to attend court in relation to the matters under mediation. I have therefore considered this conviction to be minor in nature and have placed little weight on it in my assessment of your overall character.”

    (emphasis in the original)

15. Next, the Delegate dealt with the Applicant’s social media presence and activity – Exhibit 1 T16 p. 164:

    “In the Invitation to comment on adverse information letter sent to you, I advised you that a review of your online social media activity and presence indicated that you endorse religious and politically motivated violence, support groups associated with terrorist activity and harbour anti-Western views. Accordingly, you seemed to hold views that are contrary to Australian values and community expectations.”

    (emphasis in the original)

16. The Delegate then set out, at length, the Applicant’s response – Exhibit 1 T16 pp. 164 – 165. In summary, the Applicant expressed regret for his social media posts, stating that some were made out of emotion and anger at the time. He also claimed that there is a difference between the way that Afghans express their feelings compared with Australians, but he understood his comments were wrong and he regretted ever saying them. In addition, the Applicant claimed that he had never harmed anyone in his life and was not capable of doing so. Finally, the Applicant claimed that he did not endorse religious or politically motivated violence, did not support terrorist groups and did not harbour anti-Western views.

17. The Delegate made the following observations – Exhibit 1 T16 pp. 165 – 166:

    “…I accept that if I was to view each of the identified posts or likes of concern in isolation from the others, I may be able to conclude that your related explanations are plausible. However, I don’t believe this is the appropriate approach to take. When viewed in their entirety, it is clear that you have an interest in following social media posts and news items related to terrorism and politically and religiously motivated violence. Whilst I acknowledge that your life experiences have likely influenced your interest in these matters, it is clear from your posts and ‘likes’ that you do endorse religious and politically motivated violence under some circumstances. There is no mistaking the meaning of ‘… we can’t stop them by talk please stand against them and kill them these mother fuckers….’ I also do not accept that you would mistake ‘liking’ a Facebook post for following the Facebook news channel it appeared on. Again, I am therefore of the view that you endorse terrorist related activity under some circumstances.

    …

    As a result of the above assessment, I am satisfied that the social media posts/likes outlined in the Notice of intention to take action letter sent to you reflect an accurate representation of your character under certain circumstances. This aspect of your character is of significant concern and takes significant weight in my final decision.”

    (emphasis in the original)

18. The Delegate then took into account five character references that were provided. One was from the Applicant’s employer, one from Ms AK, the complainant in the 2016 criminal proceedings, one from Mr John Zagorianos, a former officer of the Northern Immigration Detention Centre and two from unrelated persons. Weight was only given to the reference from the employer, Ms AK and Mr Zagorianos.

19. In reaching a decision on the Applicant’s character, the Delegate placed little weight on the Applicant’s criminal conviction – Exhibit 1 T16 p. 166.

20. The Delegate then stated that the Applicant’s social media interactions had generated significant concerns within the Department of his ability to satisfy the good character requirement for citizenship – Exhibit 1 T16 p. 167.

21. It was noted that the social media interactions were all generated in the 2016 – 2017 period, and there were no more recent examples. Nonetheless, the Delegate observed – Exhibit 1 T16 p. 167:

    “…While the Department is not aware of any posts or ‘likes’ of concern from post 2017, this does not mean that other posts of concern don’t exist. Whilst you have stated in your statutory declaration that you ‘…apologise for some wrong comments I made a few years ago and regret that I did so’, it is impossible for me to know if you have truly spurned these views. The character issues of concern are significant, relating to support for arguably some of the most heinous crimes that exist. I am therefore not satisfied that a reasonable amount of time has passed to establish a pattern of behaviour that negates the significance of these character concerns. This weighs against you being of good character and carries considerable weight in my assessment of whether you are of good character.”

22. The Delegate acknowledged that the Applicant had provided more recent examples of social media posts which shone a more positive light on his character and attitude towards Australia. Further, recognition was given to the positive character references that were provided. However, the Delegate stated that “these do not lessen the level of concern associated with those posts and ‘likes’” previously discussed – Exhibit 1 T16 p. 167.

23. The Delegate concluded, after considering the Citizenship Procedural Instructions (CPI) and observations by Deputy President Breen in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 (Fenn), that the Applicant did not satisfy the character test – Exhibit 1 T16 pp. 167 –169.

24. On 15 May 2021, the Applicant made an application to the Tribunal for a review of the Delegate’s decision – Exhibit 1 T2 pp. 3 – 9.

    ISSUE

25. The sole issue before the Tribunal is whether the Applicant is of good character for the purpose of s 21(2)(h).

26. Ms Allen confirmed at the Hearing that the question of identity was not in issue for the purpose of these proceedings – Transcript (Tr.) 4.4.2022 p. 5.

    LEGAL PRINCIPLES

27. The term “good character” is not defined in the Act. It has been observed that the absence of a definition indicates that Parliament intended that the term be used in a broad way, and allows a decision-maker to consider a range of events and conduct connected with an applicant – per O’Bryan J in BOY19 v Minister for Immigration and Border Protection (BOY19) [2019] FCA 574 at [46].

28. There have been a number of Federal Court decisions on the meaning of this term and the proper application of the good character test. Reference can be made to the following observations of Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) (1996) 68 FCR 422 at 431 – 432:

    “…the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character... Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”

29. An assessment of good character, then, is an objective exercise governed by a review of the evidence presented, as distinct from a popularity contest weighed by emotion and only a partial understanding of a person’s character and behaviour.

30. Such an assessment is, by no means, an easy task and a decision-maker must reach the requisite state of satisfaction. The Tribunal made these observations in Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7]:

    “…A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.”

31. Subparagraph 21(2)(h) requires a decision-maker to be “satisfied” that an applicant is of good character. Guidance on what degree of satisfaction is required can be found in the judgment of O’Bryan J in BOY19 (at [54] – [55]):

    “54. Section 21(2)(h) requires the Minister to form a judgment as to whether he or she is satisfied that the applicant for citizenship is of good character. The word ‘satisfied’ in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite... Second, the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion....

    55. The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character. Further, where a power is conferred by statute, Parliament is taken to intend that that power will be exercised reasonably... However, the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the Court disagrees....”

32. Although the Act does not define “good character”, guidance is provided to decision-makers by the Australian Citizenship Policy Statement (ACPS) and the CPI.

33. It needs to be noted that neither the ACPS nor the CPI are made pursuant to a specific provision in the Act. In Minister for Home Affairs v G and Another (2019) 266 FCR 569, the Full Court (Murphy, Moshinsky and O’Callaghan JJ) made the following observations ([18]/574):

    “There is no power conferred by the Australian Citizenship Act to make the Instructions. Despite appearing in a form that resembles a legislative instrument or that has a statutory source, the Instructions are made in an exercise of executive power.”

34. Their Honours also made the following observations ([58]/586):

    “It is established that an executive policy relating to the exercise of a statutory discretion must be consistent with the relevant statute in the sense that: it must allow the decision-maker to take into account relevant considerations; it must not require the decision-maker to take into account irrelevant considerations; and it must not serve a purpose foreign to the purpose for which the discretionary power was created...”

35. The Tribunal will generally apply the ACPS and CPI unless there is a cogent reason not to do so – Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.

36. However, although the ACPS and CPI provide sound general guidance to a decision-maker, where a level of satisfaction is reached for the purposes of s 21 of the Act, then any further requirements or steps as set out in the ACPS and CPI need not be addressed – Chaang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 72.

37. The Tribunal has been provided with an up to date copy of CPI 15 – Assessing Good Character under the Citizenship Act – Exhibit 1 T18 pp. 184 – 209.

38. First, CPI 15 cl. 3.1 points out that, in most cases, it would not be appropriate to conclude that a person is not of good character simply because they have been convicted of an offence. A full assessment is required.

39. Second, the phrase “enduring moral qualities” encompasses the following concepts – CPI 15 cl. 3.3:

    ·“characteristics which have endured over a long period of time;

    ·distinguishing right from wrong; and

    ·behaving in an ethical manner, conforming to the rules and values of Australian society.”

40. Third, the good character requirement requires consideration of an applicant in a holistic way, namely, all aspects of an applicant’s life may be relevant to a consideration of character – CPI 15 cl. 3.3.

1. Reference can also be made to the non-exhaustive list of characteristics expected of a person of good character set out in CPI 15 cl. 4:

   “An applicant who is a person of good character would generally be expected to exhibit the following characteristics. Application of these principles should be considered in light of the facts of the particular case.

   As a general proposition, a person who is of good character would:

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

   ·be honest and financially responsible (for example, pay tax, not be in dishonest receipt of public funds pay debts to the Commonwealth);

   ·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:

   o   intentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;

   ...

   o   concealing criminal convictions;

   ...

   ·not be violent, involved in illegal drugs or unlawful sexual activity, and not cause harm to others through their conduct...

   ·not associate with persons who are involved in anti-social or criminal behaviour, or who do not uphold and obey the laws of Australia, such as organisations involved in war crimes, criminal gangs, OMCGs or youth gangs;

   ·not have committed, or been involved in, or associated with war crimes, crimes against humanity or genocide;

   ·not be involved in terrorist organisations or acts of terrorism overseas or in Australia.”

2. It is also important to set out the following guidance in CPI 15 cl. 4 which informs a decision-maker on how to sensibly apply these principles in particular circumstances:

   “Application of these principles should be considered in the light of the facts of the particular case and should not be applied rigidly or inflexibly. The above examples are intended only to provide broad guidance to decision-makers about the types of behaviours which might support an adverse conclusion about a person’s character. Ultimately a decision-maker must exercise any statutory discretion bearing in mind the facts of any particular case.

   It is also necessary to consider any other information that is relevant to a person’s character such as information provided by an applicant about his/her family life; for example, raising children, being in a stable home environment, being responsibly employed, paying taxes, any community work undertaken, and any other matter that is relevant to an assessment of character in the circumstances of a particular case. This would include expressions of genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing. Ultimately a decision-maker should weigh up all the factors relevant to an assessment of an applicant’s character, which might include a number of factors some of which support reaching an adverse conclusion about a person’s character and some of which support reaching a positive conclusion about a person’s character.”

3. The CPI also gives guidance on the weighing of information. When  assessing whether an applicant is of good character, a decision-maker should take into account the following matters – CPI 15 cl. 14:

   ·characterise the nature of any offence or behaviour

   ·is the offence serious or minor?

   ·did the offence harm other people?

   ·who were victims?

   ·is there a pattern of behaviour?

   ·was it a one off incident?

   ·were there extenuating circumstances?

   Consider any associations with people or organisations of concern.

   Consider any mitigating circumstances:

   ·length of time since the offence was committed

   ·age at time of offence

   ·behaviour since completing prison sentence or obligations to court

   ·remorse regarding their offending behaviour

   ·community support (referee reports etc)

   ·changes in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.

   The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.”

   THE HEARING

4. A Hearing was convened in Brisbane on 4 April 2021. The Applicant was represented by Ms Roya Majd and the Minister by Ms Cody Allen.

5. The Applicant appeared in person, gave testimony and was cross-examined.

6. In addition to the Applicant, Mr Zagorianos and Ms AK also gave evidence on behalf of the Applicant.

   CONSIDERATION

   Introduction

7. It is appropriate, at the outset, to deal with some preliminary evidentiary matters.

8. First, the Tribunal had the benefit of observing and listening to the Applicant give evidence. The Applicant presented as a pleasant and well-spoken person. He has a good command of the English language and did not need the services of an interpreter.

9. For most of his testimony, the Applicant gave straightforward testimony. He answered most Questions posed, even those which were personally intrusive, in a direct and concise manner. In short, he did not attempt to avoid answering questions or gave answers that would have otherwise bolstered his cause.

10. The Applicant’s testimony about this criminal conviction and his friendship with Ms AK was believable and frank.

11. The same cannot be said about some of the Applicant’s testimony regarding his social media posts. The Tribunal formed the view that, at times, the Applicant was evasive and some of the answers were unconvincing. In short, the Tribunal concluded that the Applicant was attempting to downplay his social media activity.

12. The evidence of both Mr Zagorianos and Ms AK was impressive. Both appeared, to the Tribunal, to be witnesses of credit and their testimony has been given due weight.

13. The Tribunal was presented with statutory declarations from Ms Denise Williams, dated 28 January 2021, and Mr Keith Kemp, also dated 28 January 2021 – Exhibit 1 T14 pp. 131 – 132. It is not clear what relationship Ms Williams or Mr Kemp have with the Applicant. Neither of these persons were called to give evidence, and both statutory declarations are worded in a similar manner. In these circumstances, little weight can be given to these statutory declarations.

    Criminal conduct

14. As previously discussed, the Applicant was convicted on 3 June 2016 at the Brisbane Magistrates Court of the offence of failing to appear in accordance with his undertaking. No conviction was recorded, and the Applicant was not further punished – Exhibit 1 T4 p. 50.

15. The Applicant had been charged with unlawful stalking between 11 February 2016 and 22 February 2016, as well as using a carriage service to menace, harass or cause offence on 20 February 2016. Both charges were dismissed as no evidence was offered by the prosecuting authorities – Exhibit 1 T4 p. 51.

16. The Tribunal has not been presented with any other criminal or traffic offences. In short, the only criminal offence that the Tribunal has before it is one of failing to appear in the Magistrates Court, for which, no conviction was recorded.

17. Despite this, the Minister has pressed this matter, and it useful to quote from the Respondent’s Statement of Facts, Issues and Contentions (Exhibit 2 pp. 7 – 8 paras 35 – 36):

    “35.While the unlawful stalking and using a carriage service to menace, harass or cause offence charges were subsequently discontinued in circumstances where the victim withdrew her complaints, the Minister contends that the applicant has nonetheless engaged in conduct which would reasonably cause another to be severely apprehensive, fearful, alarmed or distressed.

    36. Conduct involving harassment and stalking is considered particularly serious. The circumstances which gave rise to the charges can be summarised as follows:

    a.The applicant and victim were colleagues and became good friends;

    b.The applicant told the victim that he wanted her to be his wife, however, the victim did not have romantic feelings towards the applicant and did not want to be his wife;

    c.The applicant started calling and texting the victim repeatedly, insisting that she marry him. One night, he attended her residence at around 2.00am, called her and told her that he was going to enter the house.

    d.The victim told the applicant that she did not want to marry him and asked him to leave her alone. The applicant continued to phone and message the victim, telling her that he loved her and wanted her to marry him.

    e.The applicant began threatening the victim, telling her that he was going to force their marriage. When the victim blocked the applicant’s number, he began messaging her family. He told her that if she blocked him again, he would come to her house.

    f.On one occasion, when he knew she was returning from overseas, the applicant attended at the airport and sent the victim a photo of the international arrivals’ terminal. The victim again asked the applicant to stop messaging her, but he continued to send her messages expressing his love for her.

    g.When interviewed by police, the applicant said… that they were in love with each other and that her brothers were influencing her while she was in Mecca. He denied making any threats towards the victim.”

    (emphasis in this original)

18. The complainant, in the stalking and using a carriage service to menace charges, was Ms AK. She provided two statutory declarations in support of the Applicant. Both were sworn on 1 February 2021. In addition, as previously noted, she gave evidence by telephone in support of the Applicant and was cross-examined by Ms Allen.

19. It is helpful to quote, in full, from the first statutory declaration, as it sums up, concisely, the evidence of Ms AK – Exhibit 1 T14 p. 128:

    “1.I, [Ms AK], declare that I have known Mr. Jamshid Jamil since 2013. We met as colleagues while working at… Over the years, he had become a close family friend and we had built a relationship of trust during this time. Unfortunately, a mutual friend of ours had developed personal issues with Mr. Jamil and started to create problems between the two of us by slandering and accusing Mr. Jamil of committing very inappropriate acts. This created significant misunderstandings between Mr. Jamil and I, which caused me to question his character and eventually led me to report him to the police out of fear for the safety of my children and myself. I would like to admit that being a single mother with poor mental health at the time, I was in a vulnerable state of mind and as a result, was persuaded very easily.

    2.Eventually, I got into contact with Mr. Jamil again. After discussing everything thoroughly, I came to the realization that I was being used by the third person to hurt Mr. Jamil as a form of revenge and slowly regretted my decision of reporting him to the police. Hence, I went through all the formal procedures required to take my complaint back, including a meeting with a mediator. Although the complaint was withdrawn, I could not help him in being excused from attending court hearings.

    3.I humbly request that this legal complaint issue be disregarded from Mr Jamil’s Character profile. Since this event, my friendship with Mr. Jamil has become stronger and I hope we continue to be friends for many years in the future.”

20. The Tribunal was provided with a copy of a Queensland Police Service Court Brief which outlined the facts that led to the Applicant being charged with the two matters outlined above – Exhibit 2 Annexure 2. Ms Allen read extracts from the Court Brief to both the Applicant and Ms AK, and they both agreed that it was an accurate account of what occurred. Rather, than quoting the full document, relevant parts are summarised below.

21. Ms AK attended at the Upper Mount Gravatt Police Station and made a complaint of unlawful stalking against the Applicant. She reported to Police that she and the Applicant met at work and became good friends. For two years, the Applicant socialised with Ms AK and her family; however, when she travelled to Saudi Arabia, the Applicant expressed concern that she was returning to her ex-husband and he wanted her to be his wife.

22. Ms AK told the Applicant she did not want to be his wife and he began calling and texting her repeatedly, insisting that she marry him. On one occasion, the Applicant visited Ms AK’s house and told her he was going to get into her house.

23. Despite telling the Applicant on multiple occasions that she would not marry him, the Applicant persisted in calling and texting Ms AK. When Ms AK blocked the Applicant’s phone number, he then started calling Ms AK’s son, and told her that he would turn up at her house if she blocked him again.

24. On 20 February 2016, the Applicant sent a text message to Ms AK saying that he was waiting at Brisbane International Airport for her, on her return from Saudi Arabia. In fact, Ms AK had already arrived home, and, again, despite repeatedly asking the Applicant to desist from contacting her, he continued to call and text.

25. At about 5pm on 20 February 2016, Ms AK answered a call and recorded it on a digital recorder. During this call, Ms AK repeatedly informs the Applicant she does not want to marry him, and, in turn, the Applicant tells her ‘not to test his patience’, that he will force her to marry him, and that he will come to her house and chase her around and tell all her friends.

26. On its face, the behaviour of the Applicant towards Ms AK was not only unacceptable by any standards, but also concerning as underlying his persistent predatory stalking were undertones of violence. If it had not been for the statutory declaration and testimony of Ms AK, the Tribunal would have no difficulty in finding that the Applicant could not meet the character test on this ground alone.

27. However, the Tribunal was very impressed by the eloquent and impassioned testimony of Ms AK at the Hearing.

28. Ms AK testified that her complaint to the Queensland Police was the biggest mistake in her life, and that whenever she thinks about it, she feels guilty. She informed the Tribunal that, at that time, she had separated from her husband and was fearful and vulnerable.

29. A mutual friend contacted her and told her lies about the Applicant which put fear into her heart. The mutual friend told Ms AK that the Applicant was not sending money to his family and could harm her and her family. As a result of these lies, Ms AK became scared of the Applicant, and this started off a chain of events which basically spiralled out of control.

30. Ms AK denied that she was under any pressure to withdraw the complaints and that the Applicant was still her close friend.

31. Under cross-examination, the Applicant also denied that he had placed any pressure on Ms AK to withdraw the complaints.

32. The Tribunal listened very carefully to the testimony of Ms AK and formed the view that she was a witness of credit.

33. It would appear that, for reasons that are still unclear, a mutual friend of the Applicant and Ms AK made false allegations about the Applicant to Ms AK whilst she was visiting Saudi Arabia. Ms AK, accepting the truth of the false allegations, then began to distance herself from the Applicant. In turn, the Applicant became irrational and commenced a campaign of unwanted telephone calls and text messages aimed at convincing Ms AK to marry him.

34. The unlawful stalking charge was for activity between 11 February and 22 February 2016, in short, the time Ms AK was in Saudi Arabia and immediately after her return to Australia.

35. While in no way downplaying the seriousness of the Applicant’s misbehaviour, it would appear that the stalking was for a relatively short period of time, and directly connected with Ms AK’s reaction to the false allegations made against the Applicant by a mutual “friend”.

36. Both the Applicant and Ms AK attended before a Queensland Justice Mediator Officer, as part of the Queensland Courts Justice Mediation Program. Both parties signed a Justice Mediation Agreement in the following terms – Exhibit 1 T15 p. 143:

    “Jamshid Jamil and [Ms AK] agree to give their consent to the Coordinator, Justice Mediation Program to inform the Courts, Police and Prosecutor of the outcome of the Justice Mediation held between them. The parties further give their consent to the Coordinator to provide a copy of the agreement to the above-mentioned authorities for their records and reference.

    Both Jamshid and [Ms AK] expressed regret for the incident arising between 11 and 20 February 2016, which, they said, was the result of a misunderstanding.

    [Ms AK] and Jamshid decided to resume their friendship and said in future they would be honest and communicate more effectively with one another.

    Jamshid Jamil and [Ms AK] discussed the matter arising between 11 and 20 February 2016 and are satisfied with the agreed outcomes. The parties authorise and confirm that they wish for the stalking and using a carriage serviced to menace or harass matters to be discontinued upon completion of the terms of this agreement. The parties also ask that the Coordinator Justice Mediation Program advise the appropriate authorities of these instructions.”

37. Ironically, even though the substantive charges were withdrawn, the Applicant was charged and convicted of failing to appear in accordance with an undertaking. Even though the Applicant was convicted of this charge, no penalty was imposed.

38. The Applicant provided this explanation for his sole criminal conviction – Exhibit 1 T15 p. 153 para 28:

    “The conviction recorded in my name is because of a ‘failure to appear’. This is in relation to the same court matter that was withdrawn and the reason I didn’t go was because I never received a request to go to court and was not aware I had to be anywhere at a particular time or I would have gone on the allocated time. I am always punctual and behave based on regulations and am very disappointed this conviction was recorded against my name for mistake and lack of knowledge.”

39. At the Hearing, the Applicant again denied that he had deliberately not attended Court in accordance with his undertaking – Tr. 4.4.2011 p. 22:

    “Thank you. And there was – so there was no evidence of – no evidence of – I suggest to you were convicted – there was one conviction that you did not – that you did not go to court in time. I am just trying to (indistinct) here. Page 141, that’s the National Police Certificate. And if you see in the middle it says you were convicted because you failed to appear in accordance with an undertaking. So you didn’t go to court, that was on 3 June 2016?---Yes.

    Can you tell us why you didn’t go to court?---So, I didn’t even know that I have a court at all. I had no idea how that court system – you know, I never been to court in my entire life and (indistinct) that I haven’t received any notice from the court that you have a court date. No-one have given me a paper or send me a message or call me or send me an email, that ‘Okay, you have a court - you have to appear’ and because I didn’t see any letter, otherwise you know, why wouldn’t I come, you know.

    Okay?‑‑‑And that’s true, you know, and (indistinct) it’s very disturbing me.

    What is disturbing?---I mean that this – this record is here, you know, with – as I said, like I haven’t received any letter or any -– any notice, you know, that you have a court, so how could I know. When I said to – I – I think I discussed that – what for I discuss – this like ‘You have to go to court again’ you know, to clear this.”

40. Just as the Delegate accepted the Applicant’s explanation that he may not have been aware that he still needed to go to Court having regard to the resolution of the substantive charges, so too the Tribunal accepts that the Applicant’s conviction resulted from a misunderstanding, as distinct from a wilful refusal to attend at the Court in accordance with his undertakings.

1. Overall, then, the Tribunal, having listened carefully to Ms AK’s compelling testimony, and having considered her statutory declarations, has formed the view that the Applicant’s behaviour was out of character, of a short duration and flowed from a misunderstanding between the parties.

2. For these reasons, the Tribunal places little weight on either the behaviour exhibited that led to the two charges or the conviction for breaching an undertaking to appear when assessing the Applicant’s character. Reference, however, will be made below to the testimony of the Applicant at the Hearing about his remorse for his behaviour.

   Social media activity

3. The Minister submits that the Applicant’s social media activity indicates that he endorses religious and politically motivated violence, supports groups associated with terrorist activities and holds anti-Western views – Exhibit 2 p. 4 para 21.

4. The Applicant submits that he made some isolated comments more than four years ago which are not reflective of his character, and, further, his explanations are plausible and should be accepted – Exhibit 3 p. 3 para 14. Further, it is also submitted that more weight should be placed on his more recent Facebook interactions which reflect his real feelings towards peace, freedom of religion and political matters – Exhibit 3 p. 3 para 15.

5. It is necessary, at the outset, to individually examine the social media posts.

6. The first media post contains a picture of what appears to be five men armed with bamboo sticks beating a number of men and/or boys lying on the ground. There appears to be crowd of men watching the beating. It would appear that the men armed with bamboo sticks are Burmese civilians, whilst the victims of the beating are Rohingya civilians. The date on the post is 3 September 2017, and the Applicant has posted the following comment – Exhibit 1 T11 p. 110:

   “can’t stop them by words to do not kill innocent people of Burma but we should stop them by action and force and get revenge then they will stop it because till now they don’t know what is pain…”

7. A related post from the Islami Andolan Bangladesh, contains a photo of a man holding a message which reads: “PLEASE SEND MEDIA AND UN TO MYANMAR ARKAN STATE FOR SAVE ARKANI ROHINGYA MUSLIMS LIFE”. Next to the photo is a hand and underneath it reads: “Stop killing Muslims in Burma” – Exhibit 1 T11 p. 115.

8. The Applicant posted this comment – Exhibit 1 T11 p. 115:

   “we can’t stop them by talk please stand against them and kill them these mother fuckers”

9. The next social media post is of a video from the Aljazeera Mubasher Channel which shows representatives of the military wings of Hezbollah’s External Security Organisation and Hamas’ Izz al-Din al-Qassam Brigades calling for armed fighting in defence of the Al Aqsa mosque in Jerusalem. The military wings of these political organisations are prescribed terrorist organisations – Exhibit 2 p. 4 para 22a. The Applicant “liked” the video – Exhibit 1 T11 pp. 111 – 112.

10. Of concern, is a social media post containing video footage of a terrorist attack in Kabul, Afghanistan, targeting Shia Muslims. The description of the video reads “the minutes before the explosion and the moment of the explosion among demonstrators in Dehmazang (an area in Kabul)” – Exhibit 1 T10 pp. 99, 113 – 114. The Applicant “liked” this video.

11. The next social media post is of speech by Ata Mohammad Noor, an Afghan politician, who is criticising Gulbuddin Hekmatyar, also an Afghan politician and former mujahideen leader who headed the Hezb-e-Islami political party and was Prime Minister of Afghanistan in 1993 – 1994 and 1996 – 1997 – Exhibit 1 T10 p. 101.

12. With due respect to the Minister, the Tribunal draws no adverse inferences from this post. Gulbuddin Hekmatyar is a very controversial figure, and was responsible for numerous civilian deaths due to his siege of Kabul in the 1990’s. He was also allegedly involved in the production and distribution of heroin. Despite that, he has been involved in various Governments and rose to be Prime Minister on two occasions. While Hekmatyar’s views are, from an Australian perspective, radical and unsavoury, he was, and possibly remains, a popular figure amongst certain Pashtun groups.

13. In any event, the Tribunal notes that the Applicant claimed that his support for Hekmatyar was qualified, and predicated on him being able to assist in bringing peace to Afghanistan, as distinct from any support for his radical policies – Exhibit 1 T15 p. 153:

    “25.My comment in relation to Gulbuddin Hekmatyar post, was not in support of Gulbuddin Hekmatyar at all, Ata Mohammad Nour who himself was responsible for the death of thousands of innocent people in Afghanistna [sic], was bad mouting [sic] Gulbuddin Hekmatyar in that speech and portraying himself as a better leader. At that time, Gulbuddin Hekmatyar had just returned from Iran and was in support of the peace talk. My view was that if at least he was allowed in the government, there would be a chance of peace and less blood sheding [sic] but without Golbeddin [sic], there was no chance of any peace talk.”

14. A very troubling social media post concerns a video depicting four men in, what appears to be, army fatigues who are being held prisoner. It may be that the men in question were Afghan Shia Muslims who were fighting on behalf of the Syrian Government and were captured by one of a number of Sunni Muslim factions fighting the Assad Regime. It would appear that the Applicant commented that foreign spies “must be killed” and that revenge killing must be visited upon those responsible for crimes against the Sunni Muslim community – Exhibit 1 T10 p. 101.

15. Finally, there is a social media post containing a photograph of the then United States President, Barack Obama, and the then State Counsellor of Myanmar, Aung San Suu Kyi. Under the photo, the Applicant posted: “the two real terrorists” – Exhibit 1 T10 p. 102.

16. When the photo of this social media post was presented to the Applicant, as part of the invitation to comment on adverse information, the Departmental officer stated – Exhibit 1 T10 p. 102:

    “In the post below you suggest a previous President of the USA is responsible for the death of Rohingya Muslims, despite all evidence to the contrary (US international condemnation and the imposition of sanctions). This position indicates that you have personal beliefs consistent with extremist ideology that seeks and/or encourages acts of violence against the West, possibly including Australia, for alleged offences against Sunni Muslims.”

17. With respect to this post, the Applicant provided the following explanation – Exhibit 1 T15 p. 153 para 26:

    “I made a comment in relation to president Obama and Burma’s leader and referred to them as terrorists because I believed the lady leader of Burma was responsible for the death of many innocent people and I was shocked to see that president Obama whom I thought was a good man, actually gave this woman an Honour certificate. This comment was also out of anger and emotion and possibly my lack of proper knowledge of politics…”

18. The Applicant also produced a number of more recent social media posts, which he submits more accurately reflect his views about Australia and its values.

19. First, there is a social media post dated 1 June 2020 where the Applicant replied to a comment of a third person – Exhibit 1 T15 p. 150:

    “…Dear Wong, Ali is trying to minimize racism in this country and show you the result of racism which is worse than weapons but I think you can drive racism by being not agree with the right words… I hope you read your message and think about what Ali said and what you wrote to him… thanks”

20. Next, in a post of 14 August 2020, the Applicant stated to a third person – Exhibit 1 T15 p. 149:

    “Police are the protectors of this country we have to support and respect them… I wish Afghanistan had the same police officers too… hey people of Australia!, I promise that police in this country are the best, they try to protect you and implement the law on this country in order that everyone live in peace and prosperity… please value my words and love them and respect they deserve it…”

21. Two days later, in response to another person, the Applicant posted the following – Exhibit 1 T15 p. 148:

    “…look my friend, police in other countries like Afghanistan, Pakistan and many more countries rape girls, steal, beat people, bribing, smuggling and even shot people, and they make everything against you and make a file against you to put you in jail for years and then there is no justice to look at your case and you are gone… police here are more respectful, and nice if you are a decent fellow and they treat you with dignity… I am happy that you are not in Afghanistan, look mate, trust me if the fear of police were not in this country then you wouldn’t be able to eat your food with peace and park your car in front of your house or on the street otherwise it would be stolen by the time you get to know… and as far as I know, police in this country are soo good mate they treat you the best, and at least I don’t have any bad experience since I came to this beautiful country…”

22. On 20 August 2020, the Applicant posted these comments – Exhibit 1 T15 p. 146:

    “It’s absolutely a beautiful country with beautiful people and as much as this country welcomed us, it’s an obligation upon us to look after it in every possible way we can….”

23. Finally, on 28 November 2020, in response to a third person, the Applicant posted – Exhibit 1 T15 p. 144:

    “…I am here to be safe not to be sacrificed of political views… and I love to be here, it’s a beautiful country with beautiful people…”

24. It should be noted that each of these posts were created before the 11 December 2020 invitation to comment on adverse information letter which, inter alia, set out the earlier posts set out above. As such, it cannot be sensibly submitted that the 2020 posts were deliberately created in order to present a false impression of the Applicant’s views, because, at the time he posted them, he was unaware that the Department had obtained copies of his 2016 – 2017 posts. The Tribunal, therefore, does not accept the Minister’s submissions to the contrary as contained in para 28 of Exhibit 2.

25. The Tribunal accepts, on the balance, the genuineness of the 2020 posts, and further accepts that the Applicant does have positive views about the Police service and, more generally, about Australia.

26. However, even accepting this, the Tribunal is deeply troubled by the content of the 2016 – 2017 posts. The seriousness of some of those posts cannot be downplayed or excused; they represent the views of a radicalised and angry person espousing extreme Sunni Muslim views, as well as hatred for, inter alia, Shia Muslims.

27. First, the Applicant has attempted to explain away his “likes” in the social media posts outlined above as follows – Exhibit 1 T15 p. 152:

    “19.In relation to ‘liking’ various social media posts; the only reason I liked them was because I believed if I did, I would be following their news channel. That was my knowledge and experience of YouTube and believed Facebook was the same. I still have no idea who some of these groups are and am in no way in support of their actions. I simply wanted to follow the news on that particular Facebook channel.”

28. The Minister submitted that this was an implausible explanation and ought not to be accepted by the Tribunal – Exhibit 2 p. 4 – 5 para 23.

29. At the Hearing, the following exchange occurred between Ms Allen and the Applicant – Tr. 4.4.2022 pp. 24 – 25:

    “MS ALLEN: Mr Jamil, do you currently have a Facebook profile?‑‑‑Yes.

    Yes. When was that profile created?‑‑‑I don’t remember.

    Is it the same profile as what made the likes and comments?‑‑‑Yes.

    Yes and do you have any other social media profiles?‑‑‑No, I don’t have anything else.

    What about previous social media profiles, did you have any?‑‑‑I didn’t have anything like that.

    Facebook?‑‑‑No, no.

    Or a Myspace account?‑‑‑No.

    No, okay. Are you able to please explain to the tribunal the “like,” “comment” and “share” functions on Facebook and what they do?‑‑‑Sorry, which – I didn’t understand that question properly.

    So on Facebook there’s a like function which we’ve spoken about. You’ve liked some of the videos and photos?‑‑‑Yes.

    Yes. There’s also a comment function and we’ve talked about some of the comments that you’ve made?‑‑‑Yes.

    There’s also a share function?‑‑‑Yes.

    You would agree that the share function you can send photos or videos to other people?‑‑‑Yes.

    It’s true, isn’t it, that if you want to subscribe to a particular profile, you can go to their profile and click a button that says, “Follow”?‑‑‑Yes.”

30. It is tolerably clear from this exchange that the Applicant’s claimed ignorance of Facebook functions is not correct. The Applicant has a working knowledge of how to use Facebook, and the Tribunal is not convinced that he was telling the truth. In the circumstances, and on the balance, the Tribunal concludes that Ms Allen’s submission that the Applicant’s explanation is implausible is the preferable interpretation.

31. However, even if one accepts the Applicant’s explanation for his “likes”, there can be no downplaying or explaining away his disturbing posts where he blatantly supports and condones violence and Islamic terrorist activity, in particular, Sunni Muslim terrorist activity.

32. With respect to these posts, the Applicant provided the following explanation – Exhibit 1 T15 pp. 152 – 153:

    “21.The comments I made on two posts about revenge, were very wrong comments and I sincerely apologise for them…

    22.My terrible comments were made out of emotion and anger at the time. I am very much against violence in anyway and at that time, when I saw the extreme violence, I felt my blood boiled, seeing people being so violent against children in particular made me very angry psychologically and emotionally and I did not think in saying what I said.

    23.I also understand now that sometimes the way people express their feelings in the Afghan culturally, is different to those in Australia and words said do not necessarily represent their literal meanings. For example, in Afghanistan, a mother whose children have misbehaved might say to her kids that she is going to kill herself or kill them because of their misbehaviour, whereas in reality she would never do that. This is only an expression of words and never a reflection of the truth.

    24.I fully understand that these were wrong comments and I regret I ever said them. I have never harmed anyone in my life and am never capable of even harming a bird let alone harming people in any way.”

33. The Tribunal also had the benefit of a second statutory declaration from Ms AK. In this statutory declaration, she deals with her views of the Applicant’s personality and his history of dealings with third parties.

34. Ms AK refers to the Applicant as having an “empathetic nature” and showing kindness and sincerity to others, particularly, the support of the elderly and the weak – Exhibit 1 T14 p. 134 para 2.

35. In addition, Ms AK deposed that the Applicant “has earned a reputation in the community of being a reliable and selfless person.” She also deposed that he helped people in many ways “such as, shifting houses, car issues, navigating us through unknown roads. He loves to help the poor and needy by offering food or money and does not hesitate to help the struggling elderly” – Exhibit 1 T14 p. 134 para 4.

36. Ms AK then dealt specifically with the Applicant’s social media posts – Exhibit 1 T14 p. 134 paras 5 – 6:

    “5.Jamil is an emotional person who is committed to his morals and beliefs. He hates to see innocent lives go through difficulty and always voices his opinion on such topics. He is very transparent and is true to himself and others.

    6. I am however aware of his comments on social media from an email he sent me, which he received from the Immigration Department in relation to his Citizenship application. Knowing Jamil for seven years, I can confidently state that he is not a violent, dangerous, or unstable person to any extent. I know Jamil as an empathetic and emotional person, which is what led to him making such comments on behalf of those facing injustice and torture. I have heard Jamil talking about politics and religion at different times and have never heard him say anything that would suggest his beliefs are consistent with extremist ideology that seeks and/or encourages acts of violence against the West, Australia, or people of any faith or religion.”

37. As Ms AK observes, the Applicant is an “emotional” person. His misbehaviour in 2016 when he engaged in a campaign of stalking and harassment of Ms AK is a testament to this description of the Applicant.

38. There is no doubt that the Applicant was upset when viewing images of Rohingya people being beaten and killed by Burmese civilians. However, his reaction to this atrocity was to encourage revenge killings of Burmese civilians. His post is quite clear; the only way to stop the persecution of the Rohingya people is by “action and force” and to get “revenge”. – Exhibit 1 T11 p. 110. Similarly, his suggestion that former President Obama is a terrorist for having given an award to Aung San Suu Kyi is bizarre, as the United States has been vocal in its condemnation of the actions of the Government of Myanmar against the Rohingya minority.

39. However, of greatest concern is the Applicant’s post where, in response to a social media page by the Islami Andolan Bangladesh asking for help to stop the Burmese Government killing Rohingya, where he states that “we can’t stop them by talk” and then states “kill them these mother fuckers” – Exhibit 1 T11 p. 115.

40. It will be seen that these three posts together suggest that the Applicant supported, in 2016 – 2017, a violent ideology that advocates the use of force and killing people in order to get revenge. These are not the words of a man who is too kind even to kill a bird, but an emotional individual who, below the surface, harboured, in 2016 – 2017, violent views at odds with the Australian ethos.

41. If there was any lingering doubt about the Applicant’s true motivations at the time of the 2016 – 2017 posts, then the social media post which depicts, apparently, Afghan Shia soldiers who were captured in Syria fighting for the Assad Regime, puts those doubts to rest.

42. The Applicant refers to the captured soldiers as foreign spies who “must be killed” – Exhibit 1 T10 p. 101.

43. At the Hearing, the Applicant gave the following explanation for this social media post – Tr. 4.4.2022 pp. 14 – 15:

    “MS MAJD: And then if you look at page – again 101, at the bottom of the page, you said here, in the point above it says that ‘I believe that revenge killing must be visited upon those responsible for crimes against the Sunni Muslim community’. Can you explain?---These people that they are – they were soldiers. They were soldiers, they – they support and they came in support of Iran and they are from Afghanistan – they are from Afghanistan and they are in – they be in – I don’t know in Iraq or Syria, they went to Syria, it’s called ‘Fatemiyoun’ something – it’s a Fatemiyoun – there’s a group of Afghan people, they went to – in support of Iran they went to – I don’t know – Iraq or Syria or where, but they used to fight there. What I was saying that – that mean, ‘Stay in your own home – stay in your own country. We have lots of other problems in Afghanistan and you guys create more problems – why Afghan people should have more enemies’ you know.

    And what did you mean by saying ‘revenge’ – ‘revenge’ in that - - -?---That these people shouldn’t – these people shouldn’t go there. They should be stopped. They should be stopped and returned back to Afghanistan, because to support one group and then go – they said - they said that ‘We are Afghan’ and then they fight for Iran.

    DEPUTY PRESIDENT: Isn’t it the case that those gentlemen – from my knowledge – limited knowledge, were fighting in Syria on behalf of the Assad regime – the government. Iran was paying for Afghan volunteers to go to Syria to fight in support of the Assad government?‑‑‑I don’t know about Assad but what I know is ‑ ‑ ‑

    Because the Assad – Assad is an Alawites – it’s a branch of Shia – Shia Islam. A‑l‑a‑w‑i‑t‑e – Alawite?‑‑‑Okay, I don’t know about Assad, you know. I heard, yes, but I don’t know about him. The bottom line was that ‑ ‑ ‑

    I don’t want to go into the geo-political lecture here, but that’s what it’s all about?‑‑‑Yes. So the bottom line was like they are – they were from Afghanistan, you know, and I didn’t want any of going to fight in any other country because we already have lots of problems, and especially when they claim that ‘We are Afghan’ and then they go to another country and fight, you know. It disturbing me, you know.”

1. The Tribunal found the Applicant’s explanation for his post to be unconvincing. It was tolerably clear that the Applicant knew that the soldiers in question were Shia Afghans who had volunteered to fight on behalf of the Syrian Government against Syrian Sunni opposition fighters. The Applicant did not explain to the satisfaction of the Tribunal why he referred to the captured soldiers as spies who must be killed. He did not say that they should be returned to Afghanistan as he testified.

2. What is also troubling to the Tribunal is that Applicant has liked a video which depicts Afghan Shia’s being killed in a terror attack in Kabul – Exhibit 1 T10 p. 99.

3. The social media posts in 2016 – 2017 suggests that, at that time, the Applicant harboured anti-Shia views and supported Sunni Islam extremists. The Tribunal acknowledges that there are only a few posts in which the Applicant has expressed extremist positions and all of those posts were made in 2016 – 2017. The Minister has not presented the Tribunal with any more recent posts and, as previously noted, the Applicant has provided more recent posts where he has expressed views in line with Australian community values.

4. The Tribunal also acknowledges the character references the Applicant has been given by persons of apparently good standing. Reference has already been made to the statutory declarations of Ms AK. However, specific reference should be given to the character reference of Mr Zagorianos which is contained in a statutory declaration deposed on 1 February 2021 – Exhibit 1 T14 p. 129.

5. Mr Zagorianos deposed that he first met the Applicant at the Northern Immigration Detention Centre in 2010 where he was employed as a Transport and Escort Officer. The Applicant was a detainee, but was a leader among the detainees and who provided support and friendship to others.

6. After the Applicant’s release from immigration detention, he and Mr Zagorianos kept in contact and a strong friendship developed. Mr Zagorianos described the Applicant as “a strong and dedicated man, with strong morals and a sound understanding with respect for his fellow man.”

7. So strong have the bonds of friendship developed, that Mr Zagorianos considers the Applicant as “my brother and valued family member.”

8. With respect to the social media posts, Mr Zagorianos said:

   “…I am aware of some comments he made on social media a few years ago, but these do not in any way reflect the true character of this man. They have not changed my belief that Jamshid is an honest and peaceful man of fine character. I truly believe Jamshid has committed his future to this country, our way of life and core beliefs. He is in no way associated or supportive of any form of violence, or extremist behaviour – either political or religious. Jamshid has proven himself to be a man of substance, and a man of conviction…”

9. Mr Zagorianos gave impassioned testimony on behalf of the Applicant at the Hearing. It was very clear listening to Mr Zagorianos that he holds the Applicant in the highest regard and strongly believes that the 2016 – 2017 social media posts are an aberration and do not reflect the Applicant’s character. The Tribunal was impressed with the testimony of Mr Zagorianos, and has no doubt that he believes that the Applicant is a good man and is worthy of the bestowal of Australian citizenship.

10. It became apparent, however, under cross-examination, that Mr Zagorianos had a limited knowledge of the social media posts of the Applicant. It was also apparent that he was not aware to any real extent of the Applicant’s stalking charges.

11. Reference can be made to the following observations of Deputy President Breen in Fenn at [8]:

    “The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home.”

12. There are a number of factors that weigh in favour of the Applicant.

13. First, with the exception of the unfortunate misunderstanding between himself and Ms AK which started a chain of events leading to his conviction for failing to appear in accordance with his undertaking, the Applicant does not have a criminal history. Further, the Tribunal has not been presented with any traffic history offences. On its face, the Applicant has a good history since his arrival in Australia of obeying the law. This counts very much in the Applicant’s favour.

14. Second, the Tribunal has been presented with character references which strongly suggest that the Applicant is a caring person who has gone out of his way to help others. This appears to have been a feature of his life since his arrival in Australia.

15. Third, the evidence presented suggests that the Applicant has been gainfully employed for most of the time he has resided in Australia. He has not been a burden to the taxpayer, but, rather, has been a productive member of the community. Reference can be made to a statutory declaration of Ms Katherine Hoyle, Quality Assurance Manager, of the company he works for. The statutory declaration is dated 21 January 2021, and Ms Hoyle deposed as follows – Exhibit 1 T14 p. 133:

    “Jamshid is bright and enthusiastic; he has never reported being sick and/or unable to work. Jamshid has also answered all telephone calls promptly, responded to text messages/emails and attended every team meeting and training session. Jamshid has demonstrated a very high and strong work ethic.”

16. Fourth, the evidence presented also suggests that the Applicant has cared for his family and there is no suggestion of any domestic violence issues.

17. In most circumstances, a person presenting with these characteristics would have no difficulty in meeting the character test.

18. However, overshadowing all of these positive factors are the 2016 – 2017 social media posts. Those posts raise serious issues about the true nature of the Applicant’s personality and core beliefs. They potentially shine a bright light on what the Applicant truly believes, despite all of his protestations to the contrary.

19. The world has been blighted over the past few decades by terrorist activities. Terrorists come in many forms and are not limited to any geographic region, religion, ethnic group or political persuasion.

20. A person who wishes to be an Australian citizen must have no connections with, or sympathies for, terrorist organisations, of whatever nature. Australia cannot afford to import into its body politic, the disputes that colour the discourse and maim the political, cultural and economic underpinnings of other countries. Australia welcomes, with open arms, those persons who embrace its inclusive values, and who support the democratic underpinnings of our society.

21. Any person who aspires to obtain Australian citizenship must divorce themselves from the troubles that they came from and value the refuge and sanctuary this country provides. Migrants come to Australia for a very special reason; it is a safe, welcoming and prosperous nation. Australia will only remain so if the people who come here respect our values and do not import into our society the problems they have fled from.

22. In the case of the Applicant, the Tribunal has taken into consideration the very many positive attributes of his character which have been attested to by his friends, peers and others. The Tribunal accepts that he is an intelligent and caring man and has helped many people. All of this is to his credit, and is recognised.

23. There are, however, two troubling matters.

24. First, when Ms AK broke off close contact due to misinformation from a third party, the Applicant’s reaction was irrational, obsessive and potentially dangerous. Although the charges laid were subsequently discontinued, this does not derogate from the fact that his obsessive response placed unnecessary strain and pressure on Ms AK, who, as she said, felt frightened. These were not the actions of a kind, understanding and rational man.

25. When Ms Allen put to the Applicant evidence of his persistent and harassing exchanges with Ms AK, the Applicant expressed no remorse for his unsatisfactory conduct – Tr. 4.4.2022 p. 31:

    “You don’t consider that that conduct was threatening?‑‑‑No, no, because I never threat anyone. I didn’t mean it at all.

    You don’t consider that you did anything wrong?‑‑‑I don’t consider that I did anything wrong, yes.”

26. Clearly, the Applicant is not remorseful for his conduct, and this does not weigh in his favour.

27. Second, the 2016 – 2017 social media posts were unacceptable, and very clearly disclosed that the Applicant supported violence and Sunni Islamic terrorism. There can be no downplaying of this or any attempt to sugar coat it in any way. Quite rightly, the Applicant has recognised the error of his ways and expressed remorse. Only the passage of time will determine if the remorse expressed by the Applicant is truly genuine.

28. This, then, leads to what should be the appropriate disposition of these proceedings. Having regard to all that has been presented, the Tribunal finds that the Applicant is not a person who currently meets the character test prescribed by the Act.

29. The fact that a person does not meet the character test at a particular period of time does not mean that he or she cannot meet it at some time in the future.

30. The Tribunal notes that the Applicant has not had his application for citizenship processed for an inordinate period of time, with consequent mental anguish. This is particularly unfortunate, and the Tribunal would hope that if the Applicant applies again for citizenship his application will be processed with expedition having regard to the delays he has previously experienced.

31. The 2016 – 2017 social media posts are serious and weigh, overall, against the grant of citizenship. However, they do not represent a permanent block on the Applicant gaining citizenship.

32. The Tribunal is of the view that an appropriate period of time has not elapsed since those posts were made for the Tribunal to find that the Applicant is of good character as required by s 22(1)(h). It is suggested that a further period of four years would be needed to make a new finding on whether the Applicant is of good character. If, after ten years from posting messages that are supportive of terrorist activities, the Applicant can demonstrate that he has lived the life of an ordinary law-abiding Australian person, then there would be no apparent reason why he should not be granted citizenship.

    DECISION

33. The decision under review is affirmed.

I certify that the preceding 156 (one hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

........................[SGD]................................................

Associate

Dated: 9 May 2022

Date of hearing:	4 April 2022
Applicant:	In person
Representative for the Applicant:	Ms Roya Majd Majd Visa & Immigration Services Australia
Solicitor for the Respondent:	Ms Cody Allen Sparke Helmore Lawyers