Jazireh and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (Citizenship)

[2021] AATA 1918

Jazireh and Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (Citizenship) [2021] AATA 1918 (31 May 2021)

Division:GENERAL DIVISION

File Numbers:         2020/6998 & 2020/7001

Re:Sam Jazireh and Tara Abdollahi

APPLICANTS

AndMinister for Immigration, Citizenship, Migration Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr A Maryniak QC, Member

Date:31 May 2021

Date of written reasons:        25 June 2021

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decisions under review.

........................................................................

Mr A Maryniak QC, Member

Catchwords

CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether Applicants have satisfied paragraph 21(2)(h) of Australian Citizenship Act – false and misleading conduct in dealing with immigration authorities and in relation to passports – decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

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

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

Secondary Materials
Chapter 15 of the Revised Citizenship Procedural Instructions

REASONS FOR DECISION

Mr A Maryniak QC, Member

25 June 2021

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.

2. The oral reasons for that decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the corrected transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.

I certify that the following 17 (seventeen) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member

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

Associate

Dated: 25 June 2021

Date of hearing:	25, 26 and 31 May 2021
Advocate for the Applicants:	Ms Angela Manesh
Agents for the Applicants:	AZL Consulting
Solicitor for the Respondent:	Mr Adrian Downie
Solicitors for the Respondent:	Minter Ellison

ANNEXURE A

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. MEMBER: Before the Tribunal are two related applications for review, dated 5 November 2020, made by the husband and wife applicants with respect to two decisions of a delegate of the Respondent, refusing Australian citizenship by conferral on 15 October 2020.  The two applications were heard concurrently, and the evidence given by and on behalf of each Applicant formed the body of evidence before the Tribunal in its assessment and determination of each application.  The exhibits are mutually admitted in both applications.

2. The issues to be decided in respect of each Applicant, as required pursuant to the Australian Citizenship Act 2007 (Cth)(‘the Act’),  are whether each is of good character, and if so, then, has each established identity? Viva voce evidence was given via an interpreter by each Applicant, and Zeinab Jazireh and Soraya Abdollahi, over two days of the hearing.  The documentary evidence considered by the Tribunal comprises the T Documents, the supplementary T Documents, and the two signed submissions, (which are exhibits A1 and A2), which include the attached appendices, lodged with the Tribunal by the Applicants, both dated 22 February 2021.

3. In light of the findings of the Tribunal, as made in respect of each Applicant in relation to the character issue, it is not necessary to consider the subsection 24(3) identity issues.  Pursuant to section 24(1A) of the Act, the Minister – and hence here, the Tribunal – must not approve an application for Australian citizenship unless the applicant satisfies the operative eligibility requirements under section 21 of the Act, in this instance namely section 21(2)(h).  The Tribunal must be satisfied that the Applicant in each case is of good character at the time of this decision, by forming an opinion requiring an evaluative judgement, as discussed in BOY19 v Minister for Immigration and Border Protection [2019] FCA 574, and by reaching an affirmative belief that the applicant is a person of good character; at [54]-[55].

4. ‘Good character’ is not defined in the Act but is to be given its ordinary meaning.  Guidance is provided in the case of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 to 432. In that case, Lee J stated,

   Unless the terms of the Act and Regulations require some other meaning be applied the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community.  The former is an objective assessment to be proved as a fact whilst the latter is a review of subjective public opinion…
   A person who has convicted of a series 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… 

5. In determining good character, the Tribunal is to look holistically at the applicant’s behaviour over time in order to be satisfied of enduring moral qualities within the prospective Australian citizen.

6. Such phrase pursuant to the relevant Citizenship Policy Instruction 15 (‘CPI 15’) - Assessing Good Character under the Citizenship Act, encompasses the following:

   (a) characteristics which have endured over a long period of time;

   (b) distinguishing right from wrong; and

   (c)behaving in an ethical manner, conforming to the rules and values of Australian society.[1]

   [1] CPI – Chapter 15 at [3.3].

7. CPI 15 further sets out examples of characteristics of a person of good character, and relevantly, they do not include those who practice deception or fraud in their dealings with the Australian government, or other organisations; for example:

   (a)intentionally providing false personal information (such as fraudulent work experience or qualification documents); or

   (b)other material deception during visa and citizenship applications.[2]

   [2] Ibid at [4].

8. The Citizenship Policy also outlines the characteristics of good character as a person who would, inter alia, respect and abide by the laws in Australia and other countries, and not evade immigration and border control. 

9. On behalf of the Applicants, it was submitted that both have no criminal record in Australia or anywhere else, and no criminal matters pending, and that they are good prospective citizens of Australia.  Numerous character references are in evidence as to the good qualities each Applicant possesses.  It is clear from the material submitted on behalf of the Applicants that they are both in recent years making a positive contribution to Australia. 

10. However, in assessing good character, the Tribunal must look for enduring moral qualities over a long period of time through an objective prism, and not the subjective qualities such as the good-standing, fame or repute of the prospective citizen. 

11. The Applicants claim to be stateless Feyli Kurds, and that they originally left Iran in 2010 due to harassment, discrimination and threats of violence.  The Applicants first arrived in Australia on 13 October 2010 as irregular maritime arrivals.  On about 28 October 2010, during interviews with Australian Immigration officials, they each provided false information.  The Applicants’ evidence was that Sam Jazireh said that he had travelled to Australia on an Iranian passport under the false name of Mosayeb Alizadeh, and Tara Abdollahi under the false name of Areza Kamela Kahani.  Further, the Applicants say that that information was false, and that they originally travelled to Australia in 2010 with Iranian passports under their real names. They said others had told them to give false names otherwise they would be returned to Iran.

12. In May 2011, each Applicant applied for and was granted a Protection Class XA Subclass 866 Visa. On 15 June 2015, each protection visa was cancelled on the basis that each Applicant was found to have provided incorrect information in connection with the corresponding visa application.  It was only during and after a hearing at the Refugee Review Tribunal that each Applicant made attempts to correct the false information given to the Australian authorities some five years earlier.  Essentially, that Refugee Review Tribunal hearing in late 2015 prompted the admissions. Prior to that, neither Applicant had made attempts to correct the false information provided in October 2010.

13. The Applicants each stated, and the Tribunal also notes, that each Applicant left Australia, visited Iran and returned to Australia in 2013 on Iranian passports which were acquired on the basis of fraudulent documents and information. This is a further example of the unethical approach each Applicant took to the importance of the integrity of passports issued by governments, and Australian immigration border control generally. 

14. Whilst the Tribunal accepts that since late 2015, each Applicant states that they now understand the importance of being truthful with Australian immigration authorities, on balance this understanding, and their developing good character and the evidence of this before the Tribunal, does not – in the opinion of the Tribunal – sufficiently mitigate the seriousness of the act of providing false information, and the fact that each Applicant only corrected the issue when it was in their interest to do so before the Refugee Review Tribunal in late 2015 and the fact that each Applicant elected to leave and enter Australia in 2013 on passports acquired by fraudulent documents and information.

15. The integrity of our immigration system is dependent upon the honesty of those seeking to benefit from it.  When false information is provided, it undermines the functioning of a fair and just immigration system. 

16. After carefully considering the body of evidence, and in light of the matters above, the Tribunal is not satisfied that each Applicant is a person of good character, as required by the objective assessment pursuant to section 21(2)(h) of the Act.  Looking at their conduct holistically over time, neither Applicant has yet demonstrated sufficient good, enduring and lasting moral qualities during their time in Australia. 

17. The Tribunal notes that these findings do not deprive each Applicant from making a further application for Australian citizenship should they chose to so in the future.  The Tribunal notes each Applicant’s positive contribution to the Australian community to date, and presumably, each will be able to demonstrate a longer period of such contribution when making any further application.  On balance, the correct or preferable decision by reason of the matters set out above is that each decision under review be affirmed.