Jamishi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

Case •

[2023] AATA 3094

•

7 September 2023

Jamishi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2023] AATA 3094 (7 September 2023)

Division:GENERAL DIVISION

File Number:          2023/0472

Re:Aboozar Jamishi

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member C.J. Furnell

Date:7 September 2023

Date of written reasons:        25 September 2023

Place:Melbourne

The decision of the respondent’s delegate is set aside and, in substitution, the Tribunal decides that the approval of the applicant becoming an Australian citizen not be cancelled on the basis that:

(a)the situation outlined in s 25(2) of the Australian Citizenship Act 2007 (Cth) (the Act) applies; or

(b)the situation outlined in s 25(3) of the Act applies unless the applicant fails to make a pledge of commitment within 12 months after the date of this decision.

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

Senior Member

Catchwords

CITIZENSHIP – cancellation of approval of applicant becoming Australian citizen – Australian Citizenship Act 2007 (Cth), s 25(1) – whether the Tribunal can be satisfied that applicant is not of good character – application of Citizenship Procedural Instruction 15 – provision of false information to the respondent – where intervention orders had been made against the applicant – Tribunal not satisfied Applicant is not of good character – decision set aside and substituted

Legislation

Australian Citizenship Act 2007 (Cth)

Family Violence Protection Act 2008 (Vic)

Cases

Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Comcare v Power [2015] FCA 1502
Drake and Minister for Immigration and Ethnic Affairs; Re: (No 2) (1979) 2 ALD 634
Elias v Commissioner of Taxation (2002) 123 FCR 499
Esber v Commonwealth of Australia (1992) 174 CLR 430
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Knight v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 127
Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641
McDonald v Director-General of Social Security (1984) 1 FCR 354
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Millar and Comcare (Compensation) [2019] AATA 4973
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
Rong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 673
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Toomey and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 468

VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230

Secondary Materials

Revised Citizenship Procedural Instructions (CPIs) – CPI 15 – Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

Senior Member C. J. Furnell

25 September 2023

  1. In December 2021, the applicant’s application for citizenship by conferral was approved.

  1. In December 2022, a delegate of the respondent decided to cancel that approval pursuant to s 25(1) of the Australian Citizenship Act 2007 (the Act).

  1. The power afforded by that section of the Act to so cancel such an approval may only be exercised in either of two situations.

  1. The first such situation requires, amongst other things, that the respondent be satisfied that the person concerned is not of good character.

  1. The second situation requires, amongst other things, that the relevant citizenship applicant have failed to make a pledge of commitment within 12 months of receipt of notice of approval of the relevant citizenship application.

  1. In deciding to cancel the approval of the applicant’s application for citizenship, the respondent’s delegate considered that the first such situation applied.

  1. The applicant applied to the Tribunal for review of the delegate’s decision.

  1. In reviewing decisions, the Tribunal is required to stand in the relevant decision-maker’s shoes to “do over again” that which was done by the decision-maker.[1] In doing so, it performs the same function, exercises the same power,[2] is subject to the same constraints and addresses the same question or questions[3] as the decision-maker.

[1] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].

[2] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529 per Katzmann J at [34] citing Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14]-[15]. See also Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], where it is said that the “…merits review function of the AAT is “to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review”. The function of the AAT, in other words, is “to do over again” that which was done by the primary decision-maker.”

[3] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51], where it is said that the “…AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision”.

  1. Nevertheless, the “… ambit of a review by the Tribunal is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review…  This is an aspect of the notion that the administrative decision-making process is a continuum.”[4]

[4] Knight v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 127 at [52].

  1. In standing in the shoes of the respondent’s delegate but recognising the role of the Tribunal as part of an administrative continuum, the question ultimately in issue for the Tribunal was whether it is satisfied that the applicant is not of good character.

  1. At the hearing of this proceeding on 7 September 2023, I concluded that I was not so satisfied.

  1. As a result, I decided to set aside the delegate’s December 2022 decision and, in substitution, decided that the approval of the applicant becoming an Australian citizen not be cancelled on the basis that:

    (a)the situation outlined in s 25(2) of the Act applies; or

    (b)the situation outlined in s 25(3) of the Act applies unless the applicant fails to make a pledge of commitment within 12 months after the date of this decision. 

  1. Reasons for my decision were provided orally at the conclusion of the hearing. The respondent has, however, asked that I provide a statement in writing of my reasons. I do so now.

Regulatory context

  1. Under the Act, a person’s application for citizenship cannot be approved unless the person is eligible to become an Australian citizen under certain provisions of the Act.[5]

[5] Act, s 24(1A).

  1. In the case of the applicant, for him to have been so eligible under those provisions and, hence, for his citizenship application to have been approved in December 2020, it would have been necessary for the respondent to have been satisfied that the applicant was of good character.[6]

[6] Act, s 21(2)(h), ignoring those provisions which would not have been applicable to the applicant such as provisions dealing with applicants aged over 60 or under 18, being stateless, being born in Papua, whose parent had been an Australian citizen or who suffered from a mental incapacity

  1. While in the context of his application for citizenship the applicant did not bear an onus of proof as to the issue of his good character,[7] nevertheless, the burden of persuasion concerning that issue lay with the applicant, if he was to succeed in his application. It was the applicant who was seeking to prosecute a case that reflected a departure from the then accepted or current position (him not then having approval to become an Australian citizen).[8]

[7] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54] where it was stated that “…the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite….”. Indeed, in Tribunal proceedings, any suggestion that a party bears such an onus, whether legal or evidential, is apt to mislead: Comcare v Power [2015] FCA 1502 at [57]; McDonald v Director-General of Social Security (1984) 1 FCR 354, 358.

[8] Toomey and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 468 at [58]-[59]; Millar and Comcare (Compensation) [2019] AATA 4973 at [152].

  1. There was a dramatic shift in the burden of persuasion, however, when it came to exercising the respondent’s power to cancel approval of the applicant’s application for citizenship in reliance on the first situation outlined in s 25 of the Act.

  1. In that context, the character criterion required that the respondent be satisfied that the applicant is not of good character. In that context, it is the respondent who was seeking to prosecute a case that reflected a departure from the then accepted or current position (the applicant’s application for citizenship having been approved). Hence, the burden of persuasion in that context lay with the respondent as to the issue of whether the applicant is not of good character.

  1. Some confusion as to this burden of persuasion is reflected in both the decision of the respondent’s delegate in December 2022 and in submissions made in this proceeding on behalf of the respondent.

  1. For instance, in relation to the applicant, the delegate said that he or she “…cannot be positively persuaded that you are of good character for the purposes of your citizenship application” and that he or she “…can no longer be satisfied you are a person of good character who meets all the eligibility requirements for the conferral of Australian citizenship.”[9]

[9] T2, p.17.

  1. The delegate was not, however, dealing with a citizenship application or with the eligibility requirements for conferral of citizenship. Rather, the question before the delegate concerned cancellation of an approval of a citizenship application. In that context, there is no requirement that the delegate be persuaded or satisfied of the applicant’s good character.

  1. Similarly, and again by way of example, in the respondent’s statement of facts issues and contentions in this proceeding, it was said that “…the Minister contends that Tribunal should not be satisfied that the applicant is of good character.”[10] Again, however, there is no requirement that the decision-maker be satisfied of the applicant’s good character when the question in issue is whether to cancel an approval of a citizenship application under s 25 of the Act.

[10] See respondent’s statement of facts issues and contentions of 24 August 2023 (R SFIC) at [28]. This was said despite the respondent having, earlier in the statement at [14], correctly identified that “…for the cancellation power to be enlivened, the decision-maker must be positively satisfied that the applicant is not of good character.”

  1. In the context of that question in issue, the requirement is that the decision-maker (now the Tribunal) be satisfied that the applicant is not of good character.

    Good character

  2. In this proceeding, while not bound to do so,[11] I sought to apply government policy where it is relevant and in the absence of cogent reasons to the contrary.[12] Applying government policy is particularly appropriate when, as here, the Tribunal is required to arrive at an opinion[13] based on an evaluative judgment.[14]

    [11] Elias v Commissioner of Taxation (2002) 123 FCR 499 at 506–7 per Hely J. See also Leong and Minister for Home Affairs (Citizenship) [2019] AATA 3641 at [34]-[42].

    [12] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 per Brennan J; Al Salim and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 65 at [25]. In MDXJ v Secretary, Department of Social Services [2020] FCA 1767, it was said (at [17]) that the “…part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case …  Further, it is well-established that the Tribunal … is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”

    [13] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54]: “…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.”

    [14] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [54], where it is said: “Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in ‘high volume decision-making’, such as the determination of applications for Subclass 202 visas. Thus in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) , Brennan J, as President of the Administrative Appeals Tribunal, said that ‘[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable’ because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by ‘diminishing the importance of individual predilection’ and ‘the inconsistencies which might otherwise appear in a series of decisions’. The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines.”

  3. As for the government policy which I sought to apply, reference is made to the Australian Citizenship Policy Statement reissued on 27 November 2020 (policy statement).  This policy statement provides context for citizenship procedural instructions to be used in making decisions under the Act, instructions outlined in what are characterised in the statement as related framework documents.[15]

[15] Policy statement [2.1].

  1. Instructions to be so used when assessing a citizenship applicant’s character are provided for in Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15).

  2. In accordance with CPI 15[16] and consistent with case law,[17] a person’s character is something to be assessed objectively by reference to the person’s enduring moral qualities, with various aspects of a person’s life being of potential relevance.[18]

[16] CPI 15 [3.1]; [3.3].

[17] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431-432; BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [51].

[18] CPI 15 [3.3].

  1. The term “good character” is “…used in a broad way and allows the decision-maker to consider a range of events and conduct connected with the applicant.”[19]

    [19] VFWQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 230 at [32], citing Grass v Minister for Immigration and Border Protection [2015] FCAFC 44 at [60].

Events and conduct of applicant

  1. The respondent identified three events in the applicant’s life on the basis of which it was submitted that the Tribunal ought to be satisfied that he is not of good character.

    Provision of false information

  2. The respondent submitted that the applicant had provided false information to the respondent. In particular, it was said that, when attending his appointment for a citizenship test, he falsely stated that his former partner had been unsuccessful in an application for an intervention order against him when, in fact, such an order had been made in May 2019.[20] 

    [20] R SFIC [20a].

  3. I am not satisfied that what occurred reflects an absence of enduring moral qualities on the part of the applicant.

  4. The applicant’s evidence was to the effect that the statement he had made at the time of his citizenship test concerned him not having been charged with any offences, albeit that he mentioned having been the subject of an intervention order which had, by then, expired.[21]

    [21] T55, p.222.

  5. Having heard from the applicant, my impression is that he was a witness of truth. It was clear that English is not his first language. In that circumstance, there might well have been a misunderstanding at the time of his citizenship test both as to the questions posed of him and his responses to those questions.

  6. That the applicant would not have deliberately misled the respondent about the May 2019 intervention order is lent credence by the fact that the respondent became aware of the intervention order only by reason of a disclosure made by the applicant when seeking a visa. 

    Intervention orders

  1. As already mentioned, an intervention order was made against the applicant in May 2019.[22]

[22] The order was a family violence final intervention order made under Victoria’s Family Violence Protection Act 2008: T55, p.228.

  1. The order was made on the application of the applicant’s former partner, “Ms FP”, and her and the applicant’s then four-year old son, “Mr S1”.[23] It was alleged that the applicant had engaged in conduct involving abuse of both Ms FP and Mr S1.[24]

[23] T55, pp.237-241.

[24] T55, p.221: specific allegations are found at T55, pp.235-236.

  1. A further intervention order was made against the applicant in March 2022.[25]

[25] T55, pp.226-227.

  1. The order was made on the application of Ms FP.[26] It was alleged that the applicant had engaged in conduct involving physical and mental abuse of both Ms FP and Mr S1.[27]

[26] T55, p.230.

[27] T55, pp.230-231.

  1. Initially, the order was an interim one. It was made in the absence of the applicant in circumstances where the application for the order had not been served on the applicant.[28]

[28] T55, p.226.

  1. In May 2022, the interim order became a final order.[29]

    [29] T58, pp.267-268.

Impact of orders

  1. I am not satisfied that either order reflects an absence of enduring moral qualities on the part of the applicant.

  1. The respondent submitted that each application made for an order “details physical, emotional, financial and sexual violence by the applicant” and that the history of orders demonstrates “…a pattern of behaviour by the applicant which suggest he is not of good character”.[30]

[30] R SFIC [20c]-[20d].

  1. I rejected that submission.

  1. In the circumstances, the intervention orders are not significantly probative of the applicant having engaged in the conduct alleged. The granting of the orders did not reflect a finding that the applicant had engaged in the conduct which, in her applications for the orders, Ms FP alleged he had engaged in.

  1. Both final orders were made by consent, without admission of the allegations underlying the applications for them. Indeed, before the Tribunal, the applicant strongly denied those allegations and gave evidence to the effect that he had consented to the making of the orders on legal advice that to do otherwise would delay access to his son.

  1. As the respondent contends, I accept that a court has twice been “…satisfied that there was sufficient evidence to warrant the granting of the intervention orders against the applicant.”[31] A court has twice “… found that there is enough evidence of the applicant’s conduct to justify the granting of these orders”,[32] being orders which the court “…was satisfied … were required to protect the named persons.”[33]

[31] R SFIC [20e].

[32] R SFIC [21]

[33] R SFIC [23]

  1. Looking to the Victorian Family Violence Protection Act 2008, what was required for, say, the making of the interim order in March 2022 was that the Court be satisfied, “on the balance of probabilities”, that an interim order was “necessary pending a final decision about the application” to ensure the safety of either Ms FP or Mr S1.[34] The Court was at liberty to inform itself in any way it thought fit despite any rules of evidence to the contrary.[35]

[34] Family Violence Protection Act 2008 (Vic), s 53(1)(a).

[35] Ibid, s 65.

  1. As the respondent properly acknowledged, however, no determinative finding was made by a court when making an intervention order as to allegations underlying the application for the order especially where both final orders were made by consent, without admissions.[36]

[36] R SFIC [23].

  1. The two applications for an intervention order do not detail violence by the applicant. Rather, they detail allegations of violence on the part of the applicant. Nor does the history of the orders demonstrate a pattern of behaviour by the applicant. What is demonstrated is a history of Ms FP making allegations against the applicant and, perhaps, a pattern of behaviour by her.

  1. Moreover, there are reasons to doubt the validity of at least certain of the allegations underlying those applications.

  1. First, the person making the allegations, Ms FP, ended up applying in September 2022 for revocation of the order made earlier that year, an application ultimately successful in January 2023.

  1. Secondly, a statement made by Ms FP in support of her revocation application is difficult to reconcile with allegations she had made when applying for the intervention order. In this regard, as will be recalled, amongst other things, Ms FP alleged that the applicant had engaged in conduct involving physical and mental abuse of Mr S1. However, in her revocation application she said the applicant “…is a loving father and a necessary part of …[Mr S1]’s life.”[37]

[37] T66, p.299.

  1. Thirdly, some of the allegations underlying Ms FP’s application in 2022 for an intervention order were based on what she said she had been told by Mr S1. When applying for revocation of the order, however, she said it was “…because I no longer believe that the version of events told to me by …[Mr S1] are correct. He told police, Child Protection Services, and a Child impact Assessor appointed by the Family Court, a story that is not of serious concern.”[38]

[38] Ibid.

  1. Fourthly, somewhat inconsistently with allegations to the effect that the applicant abused Mr S1, I note that in:

    (a)October 2020, a child protection practitioner employed by the Victorian Department of Health and Human Services appeared supportive of Mr S1 residing indefinitely with the applicant.[39]

    (b)February 2023, Ms FP consented to orders under which she shared equally with the applicant parental responsibility for, and care of, Mr S1.[40]

    [39] In an October 2020 letter, a child protection practitioner employed by the Victorian Department of Health and Human Services supported the applicant accessing supports from what is now Services Australia on the basis that Mr S1 was then residing indefinitely with the applicant: T55, p.243.

    [40] Order made in the Federal Circuit and Family Court of Australia on 6 February 2023, noting that an independent children’s lawyer represented the interests of Mr S1.

    Ms FP’s perceived need for protection

  1. The respondent submitted that I ought to be satisfied that the applicant was not of good character because Ms FP on two occasions felt it necessary for her and Mr S1’s protection to apply for an intervention order.

  1. I rejected that submission.

  1. The applicant’s character is not determined by another’s feelings about him. Character is not a function of reputation.[41]

[41] Rong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 673 at [72] citing Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431-432.

  1. In any event, I am not satisfied on the material before me that Ms FP did feel or, at least, had a reasonable basis for feeling, it necessary to apply for an intervention order for her and Mr S1’s protection.

  1. In this regard, any feelings Ms FP had about the need for protection from the applicant would, I infer, have arisen out of the conduct which, in her intervention order applications, she alleged he had engaged in. As just noted, there are reasons to doubt the validity of at least certain of those allegations.

  1. Moreover, if Ms FP’s purpose in applying for the intervention orders had been to obtain protection for herself and Mr S1 from the applicant, it was one which would not appear to have survived beyond late 2022. As mentioned earlier, it was then that she sought revocation of the order granted in 2022, noting her characterisation of the applicant as “a loving father” of Mr S1 and her consent to share equally with the applicant parental responsibility for and care of Mr S1.[42]

[42] Order made in the Federal Circuit and Family Court of Australia on 6 February 2023, noting that an independent children’s lawyer represented the interests of Mr S1.

  1. I note that the applicant suggested that Ms FP might have been motivated to seek intervention orders for reasons other than a desire for protection. He referred to a potential financial motive, given (so he said) that Ms FP would have had access to a greater level of government support should she have sole custody of Mr S1. He also referred to the possibility that the intervention order applications were made to somehow gain the approval of her family or to avenge his rejection of her attempts to re-ignite their relationship. Lastly, the applicant appeared to suggest that there might be no rational explanation for Ms FP’s conduct, given that she suffered from mental health issues.[43]

    [43] That Ms FP did suffer from mental health issues is acknowledged in her 2022 application for an intervention order when she states that the applicant “has weaponised my mental illness”: see T55, p.231.

    Victim blaming

  1. The applicant’s suggestion that Ms FP might have been motivated to obtain two intervention orders against him for reasons other than a desire for protection from him was characterised by the respondent as victim blaming. It was submitted that this was another basis on which the Tribunal ought to be satisfied that he was not of good character.[44]

[44] R SFIC [20f]-[25].

  1. I rejected that submission.

  1. The premise underlying the respondent’s submission is that Ms FP is a victim of the applicant’s abusive conduct, being, I infer, the conduct alleged in the two applications for an intervention order. As previously indicated, however, I am not satisfied that the applicant engaged in that conduct.

Decision

  1. I am not satisfied that the applicant is not of good character.

  1. Accordingly, the December 2022 decision of the respondent’s delegate is set aside and, in substitution, I have decided that the approval of the applicant becoming an Australian citizen not be cancelled on the basis that:

    (a)the situation outlined in s 25(2) of the Act applies; or

    (b)the situation outlined in s 25(3) of the Act applies unless the applicant fails to make a pledge of commitment within 12 months after the date of this decision.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

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

Associate

Dated: 25 September 2023

Date of hearing: 7 September 2023
Applicant: In person
Advocate for the Respondent: Ms Samantha Liddy
Solicitors for the Respondent: Sparke Helmore Lawyers

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