Kazmi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2024] AATA 3437
•30 September 2024
Kazmi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3437 (30 September 2024)
Division:GENERAL DIVISION
File Number(s): 2023/7196
Re:Syed Hussain Kazmi
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Henderson
Date:30 September 2024
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated
4 September 2023 to refuse the Applicant’s application for citizenship by conferral, is affirmed..........[Sgd]...............................................................
Member Henderson
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship – whether Tribunal satisfied applicant was of good character – Australian Citizenship Act 2007 s 21(2)(h) – Applicant is a citizen of Pakistan – Applicant’s offences include minor traffic offences – Applicant provided false and misleading information on incoming passenger card – History of family violence incidents – Tribunal cannot satisfactorily ascertain Applicant is of good character – reviewable decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth), ss 21, 21(1), 21(2)-(8), 21(2)(h), 24, 24(1A), 52(1)(b)
Road Traffic Act 1974 (WA), ss 59, 60B
Criminal Code Act Compilation Act 1913 (WA)
CASES
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Boy19 v Minister for Immigration and Border Protection [2019] FCA 574
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231 FCR 128
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Home Affairs v G and Another [2019] FCAFC 79
SECONDARY MATERIALS
Australian Citizenship Policy (27 November 2020)
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
REASONS FOR DECISION
Member Henderson
30 September 2024
THE APPLICATION
The Applicant is a 28 year old citizen of Pakistan.[1] He first arrived in Australia on 12 August 2014 as the holder of a temporary Higher Education Sector (subclass 573) visa granted on 1 August 2014. He currently holds a permanent Partner (subclass 801) visa granted on
20 July 2020.[2][1] R1, T4, p 38.
[2] R1, T8, p 68.
On 4 January 2023, the Applicant lodged an Application for Australian Citizenship by Conferral – General Eligibility.[3] He was represented by a migration agent. In response to the question of whether the applicant had been ‘convicted of, or found guilty of, any offences overseas or in Australia’ the Applicant answered ‘Yes’ and provided the following details:[4]
WA Perth Magistrates Court - 17/03/2022 - No authority to drive (disqualified)
[Counts 1]FINE: $1000; Mdl Disqualified: 9 mths – Cumulative WA Mandurah Magistrates Court - 22/12/2021 - No authority to drive – suspended
[Counts 1]Mdl Disqualified: 9 mths - Cumulative; FINE: $400
[3] R1, T4.
[4] R1, T4, p 28.
On 5 July 2023, the Department invited the Applicant to comment on a National Police History Check Results Report showing the above two driving offences in the context of relevant legislation and policy on the good character requirement in s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).[5]
[5] R1, T6.
On 2 August 2023, the Applicant responded by providing:
(a)a screenshot dated 25 July 2023 from the Department of Transport website showing his licence as ‘Active’;[6]
(b)a character reference from Sami Ul Haq dated 10 July 2023;[7]
(c)two statutory declarations from the Applicant dated 31 July 2023 and 16 December 2022, respectively;[8] and
(d)a statutory declaration from Asif Iqbal Mahar dated 16 December 2022.[9]
The materials all addressed the Applicant’s convictions for driving without a licence.
[6] R1, T7, p 59.
[7] R1, T7, p 60.
[8] R1, T7, pp 61-62 and p 64.
[9] R1, T7, p 63.
On 4 September 2023, a delegate of the Minister (the delegate) refused the application for citizenship.[10] The delegate was not satisfied that the Applicant was of good character pursuant to s 21(2)(h) of the Act. The delegate placed weight on the Applicant being convicted of two separate offences of the same nature within a short period of time, which indicated a pattern of behaviour. The delegate also recorded that the Applicant’s disqualification from driving ended in April 2023 (according to the Applicant’s own declaration), and the delegate was not satisfied that a reasonable amount of time had passed to establish a pattern of good behaviour to conclude that the applicant was now of good character.[11]
[10] R1, T7.
[11] R1, T8, p 72.
On 28 September 2023, the Applicant applied to the Tribunal for review of the delegate’s decision.[12]
[12] R1, T2.
The application for review is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision made under s 24 of the Act. The reviewable decision is the decision made by the delegate on 28 September 2023 to refuse to approve the Applicant becoming an Australian citizen (the Reviewable Decision).
ISSUE
Citizenship by conferral is dealt with pursuant to Part 2, Division 2, Subdivision B of the Act. It provides for an application to be made to the Minister for a person to be approved to become an Australian citizen where the statutory requirements as to eligibility are satisfied.
Eligibility for Australian citizenship is set out in sections 21(2)-(8) (eligibility criteria). Section 21(2) contains cumulative criteria as to ‘general eligibility’, including a requirement in s 21(2)(h) that the Minister, or their delegate, be satisfied that the Applicant is of ‘good character’ at the time of the Minister’s, or the delegate’s, decision on the application (the good character criterion).
In respect of the decision under review, the delegate was satisfied that the Applicant met the criteria in paragraphs 21(2)(a)-(g). The delegate was not satisfied that the Applicant met the good character criterion.
In this instance, there is no obvious basis to revisit the criteria of which the delegate was satisfied. The sole issue before the Tribunal is whether the Tribunal can be satisfied that the Applicant is of good character, pursuant to subsection 21(2)(h) of the Act.
BARRIERS TO SATISFACTION OF GOOD CHARACTER
The Respondent submits that there are five broad reasons why the Tribunal should not be satisfied that the Applicant is a person of good character:[13]
(a)The [A]pplicant has been convicted of two driving without authority offences in quick succession, with the second offence occurring while he was disqualified from driving after the first;
(b)Incident reports record the [A]pplicant has committed acts of family violence against his ex-wife. WA Police records show that two restraining orders have been taken out against him;
(c)The [A]pplicant’s permanent Partner (subclass 801) visa was granted on 20 July 2020 after remittal from the Tribunal, however, incident reports record evidence that the Applicant separated from his ex-wife in
mid-2019;(d)The [A]pplicant failed to declare his traffic offences to the Australian government in incoming passenger cards; and
(e)Overall, [the Applicant’s] behaviour indicates a longstanding disrespect and disregard for Australian laws and insufficient time has passed since his last offence for the Tribunal to be satisfied that he is a person of good character.
[13] Respondent’s Statement of Facts, Issues and Contentions, dated 2 February 2024 (RSFIC), pp 5-6.
The Applicant says in response:
(a)There have been two driving offences and it has been two years since his last offence. The offences occurred in circumstances of mistaken fact and circumstances of business extremis which should be taken into account in an overall assessment of his character.[14]
(b)Family violence has never been established. He has no convictions for family violence. The Applicant’s partner gave evidence to the Tribunal during the application to review the decision to refuse the partner visa, and the evidence was accepted by the Tribunal.[15]
(c)Although his relationship has now come to an end, it was continuing at the relevant times for the purpose of his partner visa.[16]
(d)He didn’t intend to mislead on his incoming passenger cards; he did not understand the incoming passenger cards to be asking about driving offences, which he distinguished from criminal offences.[17]
(e)Overall, his behaviour and character witnesses should be given significant weight by the Tribunal and the Tribunal should be satisfied that he is a person of good character.[18]
[14] Transcript, p 86.
[15] Transcript, p 6.
[16] Transcript, p 32.
[17] Transcript, p 8.
[18] Transcript, p 92.
GOOD CHARACTER ASSESSMENT: PRINCIPLES
The expression ‘good character’ is not defined in the Act. There are no criteria contained in the Act by which the Minister is to consider what comprises good character, and it has been held that this is an indication that Parliament intended the term to be used in a broad way.[19] The words ‘good character’ are used in their ordinary sense.[20] Matters that bear upon a person’s good character for the purposes of the Act are matters relevant to the obligations of citizenship as expressly or impliedly reflected in the Act, including its Preamble.[21]
[19] Grass v Minister for Immigration and Border Protection[2015] FCAFC 44; (2015) 231 FCR 128 at [60].
[20] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431].
[21] Boy19 v Minister for Immigration and Border Protection [2019] FCA 574 at [53].
Guidance is set out in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship Policy Statement, which came into force as of 27 November 2020 (the Policy), and which Tribunal is to apply unless there are cogent reasons not to do so.[22]
[22]Minister for Home Affairs v G and Another [2019] FCAFC 79 (‘G’) at [57]-[62].
CPI 15(4) provides that an Applicant of good character would, among other things:
(a)respect and abide by the law in Australia and other countries;
(b)not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example intentionally providing false personal information or other material; and
(c)not be the subject of any verifiable information causing character doubts.
The relevant authorities and the Policy make it clear that:
(a)a person can fail to establish that they are of good character even if they have not been convicted of any criminal offences; and
(b)dishonesty in migration and citizenship applications is indicative that a person is not of good character.[23]
[23] For example, Beyan and Minister for Immigration and Border Protection [2015] AATA 256.
EVIDENCE
The matter was heard in Perth on 1 May 2024. The Applicant was represented by
Ms Narinderpal Kaur of Connect Migration Solutions. The Respondent was represented by
Mr Alex Chan of Sparke Helmore Lawyers. The Applicant and his representative appeared in person and the Respondent’s representative appeared via Microsoft Teams.The Tribunal received the following documents which it accepted into evidence:
(a)Statutory declaration of Syed Hussain Kazmi dated 15 March 2024, filed 15 March 2024 (Exhibit A1);
(b)Statutory Declaration of Bella Bropho dated 29 April 2024, filed 29 April 2024 (Exhibit A2);
(c)Statutory Declaration of Robert Baker dated 29 April 2024, filed 29 April 2024 (Exhibit A3);
(d)Respondent’s Section 37 T documents, labelled T1-T9, comprising 100 pages (Exhibit R1); and
(e)Respondent’s Tender Bundle, labelled TB1-TB6, comprising 165 pages
(Exhibit R2).The Tribunal heard oral testimony from the Applicant. The Applicant called four witnesses each of whom gave oral testimony before the Tribunal.
Unauthorised/unlicenced driving offences
11 November 2021
The Respondent provided the Tribunal with a copy of documents about the Applicant produced under summons.[24] On 11 November 2021 the Applicant was caught driving while his licence was suspended from 11 February 2021 to 11 December 2021 ‘for excessive demerit points’.[25] The Applicant pleaded guilty to the offence.[26]
[24] R2.
[25] R2, TB3, p 7.
[26] R2, TB2, p 3.
The Applicant was cross-examined on this offence and said that he thought he had his licence back; he had mistaken the date. He thought that the exclusion period ended on 11 November 2021 when in fact it was 11 December 2021.[27] He conceded that an error of this kind did not excuse his liability for the offence.
[27] Transcript, p 11.
The Applicant said that he was driving his brother’s BMW at the time of the offence; his brother was overseas at that time.[28] His own car was unavailable because it was being used for a work patrol for his company; his brother doesn’t let him use his BMW for work patrols. The BMW was impounded.[29] On 22 December 2021 his licence was suspended for nine months until 22 September 2022 and he was fined $400 and ordered to pay costs of $259.30.[30]
[28] Transcript, p 12.
[29] R2, TB3, p 7.
[30] R2, TB2, p 3.
11 February 2022
The Applicant drove a car again during his further period of suspension. On 11 February 2022 at around 10pm he was stopped by police on Mill Point Road in South Perth and his vehicle, this time a Toyota, was impounded.[31]
[31] R2, TB3, p 8.
The Applicant was cross-examined about this offence and said that he had been on his way to work and was unable to rely on public transport. He was running his own company, providing mobile patrol for airport sites, with only part-time staff to assist him, and he had no-one to attend a site. He knew that he was not permitted to drive but he was coming from Mandurah, which made an Uber or taxi prohibitively expensive and the loss of just one contract would have a significant impact on his financial situation.[32] He said that he experienced a great deal of regret for his decision to drive unlicenced on that occasion. He pleaded guilty[33] and has not repeated the offence of driving without a licence since.[34]
[32] Transcript, pp 12-13/
[33] R2, TB3, p 8.
[34] Transcript, p 14.
The Applicant provided a statutory declaration to the Department on 31 July 2023 which included the following evidence:[35]
Over the past couple of years, I have faced challenges in balancing work and life, particularly during the COVID-19 pandemic. Despite these difficulties, I established a new security company and aimed to elevate its success. However, due to the impact of COVID-19, finding employees became extremely challenging.
In 2021, I signed a contract with a security patrolling company, where our primary responsibility was to respond to emergency calls and attend to community incidents. It is important to note that the two offenses mentioned occurred in the past while I was working as a security officer. During the COVID-19 pandemic, public transportation was unreliable, and I had no other choice but to respond to alarms or driving to cover drop shifts or instances of no-shows.
[35] R1, T7, p 61.
Speeding and other traffic offences
The loss of the Applicant’s licence on 11 February 2021 was due to excessive demerit points, which arose because of his prior history of driving offences, primarily speeding. The Respondent tendered a document produced under summons from the Director-General, Western Australian Department of Transport showing the following offences[36]:
[36] TB4 p 75
(a)14/05/2016: EXCEED SPEED LIMIT BETWEEN 10 AND 19 KM/H;
(b)25/03/2018: FAILED TO STOP BEFORE YELLOW SIGNAL STOP LINE;
(c)20/03/2018: EXCEED SPEED LIMIT BETWEEN 20 AND 29KM/H;
(d)29/04/2018: EXCEED SPEED LIMIT NOT MORE THAN 9 KM/H;
(e)12/07/2018: EXCEED SPEED LIMIT BETWEEN 10 AND 19KM/H;
(f)03/11/2018: EXCEED SPEED LIMIT BY NOT MORE THAN 9KM/H;
(g)02/02/2019: EXCEED SPEED LIMIT BY NOT MORE THAN 9 KM/H;
(h)16/10/2019: U TURN AT TRAFFIC LIGHTS WHERE U TURN NOT PERMITTED;
(i)26/04/2020: EXCEED SPEED LIMIT BETWEEN 30 AND 40 KM/H;
(j)06/062020: EXCEED SPEED LIMIT BETWEEN 10 AND 19 KM/H;
(k)27/07/2020: EXCEED SPEED LIMIT BY NOT MORE THAN 9 KM/H;
(l)02/082020: EXCEED SPEED LIMIT BY NOT MORE THAN 9 KM/H;
(m)11/11/2020: EXCEED SPEED LIMIT BETWEEN 10 AND 19KM/H.
The Applicant was asked about his record with respect to the offences and conceded that it was correct.[37] His evidence was that, at least some of the time, he had been mistaken as to the speed limit and had not intentionally been driving significantly above the legal limit.
[37] Transcript, p 15.
The Applicant said that he has had his driver’s licence back for more than a year now and has had no more speeding tickets.[38]
[38] Transcript, p 17.
Reports of Family Violence
The documents produced under summons from the Commissioner, Western Australian Police Force (WA Police) indicated that a number of complaints had been made to the WA Police about the Applicant by Ms Janelle Baker,[39] to whom the Applicant had been married from 20 September 2016 to 2023.[40]
[39] R2, TB3, pp 9-23, 31-34, 47-60.
[40] Transcript, p 65.
18 February 2020 Report
On 18 February 2020 Ms Baker called the WA Police at around 11:30pm to report that her ‘ex husband…is stalking her’.[41] The Incident Report reflects that Ms Baker reported attending the home that she had shared with the Applicant to get some of her things and that he refused to let her into the house, so she had walked back to the train station and he had followed her. She reported that they had ‘been separated for four months’ but that the Applicant had been ‘following her around for the last two weeks’, and that 20 minutes previously he had ‘pushed her and broken her phone’.[42] The police were not able to locate Ms Baker at the agreed location for meeting her, and they made contact with family members to see if they could locate her.[43] Both her mother and her sister indicated to the police that Ms Baker was living with ‘her new partner’ who was identified as ‘Gull’.[44]
[41] R2, TB3, p 50.
[42] R2, TB3, p 50.
[43] R2, TB3, pp 51-52.
[44] R2, TB3, p 52.
The Incident Report contains follow up information, relevantly including contact made with the Applicant on 20 February 2020 in which he is recorded as stating ‘that 2 days ago the pair had an argument where [Ms Baker] was drunk and aggressive and kept following him’.[45] On 22 February 2020, after days of attempts to communicate with Ms Baker, the Incident Report records the police conclusion that she was avoiding the police and that lines of enquiry had been exhausted.[46]
[45] R2, TB3, p 59.
[46] R2, TB3, p 60.
23 March 2020 Report
On 23 March 2020 the Applicant called the WA Police and reported that he was being attacked by ‘a friend of his partners…with a hammer and his car was being smashed’.[47] When the police attended the scene, they recorded the observation that there was ‘slight damage’ to the Applicant’s car, and the Applicant and Ms Baker were ‘in a verbal confrontation’.[48] The report indicates that the parties were spoken to separately by the police. The Applicant declined to provide a statement.[49] The police recorded the following:[50]
Baker stated that herself and KAZMI were in a relationship and currently having troubles so she has been residing at [address redacted] in company with her friend [name redacted]. BAKER stated that KAZMI was present in his vehicle on the other side of the road for most of the day waiting for her to emerge from the house. This was confirmed by KAZMI. [Friend] believed that KAZMI was stalking both her and BAKER. Baker left the address and was sighted by KAZMI who was now parked at the front of the address. A verbal argument has broken out between the pair. [Friend] has emerged from the address and thrown a hammer at KAZMI which missed and several rocks at his vehicle causing minor damage.
[47] R2, TB3, p 14.
[48] R2, TB3, p 14.
[49] R2, TB3, p 14.
[50] R2, TB3, p 14.
A police order was issued to the Applicant because of ‘borderline stalking behaviour’.[51]
[51] R2, TB3, p 14, 26.
At the hearing the Applicant denied that he had been parked opposite the friend’s home all day but conceded that there had been an argument in the course of which police had been called and attended.[52]
[52] Transcript, pp 25-26.
9 September 2020 and 3 November 2018 Reports
On 9 September 2020 Ms Baker approached the WA Police at the front counter of Mandurah Police Station and made a report that included allegations that the Applicant had tried to pay her current boyfriend, Gul, to break up with her. The Report states that Ms Baker and Gul ‘have been together for over 6 months and are currently expecting a child’.[53] An allegation was also made that the Applicant had sent nude photographs and sexual videos of Ms Baker to Gul. Gul’s phone was produced to the police and showed a text message chain on 9 September 2020 which included a ‘nude explicit image’ of Ms Baker.[54] Those appear to have been the only images still on Gul’s phone although the allegation was that more had previously been received and had been deleted. The Applicant was arrested and interviewed, and his telephone was seized.[55]
[53] R2, TB3, p 9.
[54] R2, TB3, p 9.
[55] R2, TB3, p 9.
The records of the incident include allegations that there had been jealousy and violence in 2018.[56] The particulars of the 2018 complaint by Ms Baker about the Applicant are contained in a report dated 3 November 2018, which details Ms Baker’s belief that the Applicant was cheating on her, her threat to leave, and the Applicant’s decision to sleep on the couch.[57] Ms Baker reported that she had seen the Applicant standing in the house holding a knife and had ‘run out the front’ before calling the police.[58]
[56] R2, TB3, p 11.
[57] R2, TB3, pp 32-34.
[58] R2, TB3, p 32.
The Applicant was cross-examined about the 9 September 2020 and 3 November 2018 reports. With respect to the 2020 event, he said that he did not have any nude pictures of Ms Baker, that he didn’t recognise the mobile telephone number from which the pictures were sent (which was not his) and that he had not tried to break up Ms Baker and Gul’s relationship.[59] He said that he was interviewed at his home, he was not arrested, and his phone was not seized. With respect to the 2018 event, the Applicant said that Ms Baker had been jealous of a woman he worked with when he was working as a security guard and there had been an argument resulting in a locked door, but that he had not had a knife.[60] The Tribunal notes that the police report states that no knife was found at the scene.[61]
[59] Transcript, pp 20-21.
[60] Transcript, pp 22-23.
[61] R2, TB3, p 32.
15 September 2020 Restraining Order
On 15 September 2020 the Mandurah Police Station issued a restraining order (RO) restraining the Applicant and protecting Gul.[62] The terms of the RO included that the Applicant must not cause damage to any property in Gul’s possession, must not communicate with Gul by any means, must not behave in an intimidatory, offensive or emotionally abusive manner towards Gul, and must not harass Gul by any electronic means.[63] It restrained the Applicant from approaching Gul’s home, workplace or school, approaching within 20 metres of Gul, approaching or remaining within 20 metres of any property or vehicles of Gul, and monitoring Gul’s movement or communications.
[62] R2, TB3, p 24.
[63] R2, TB3, pp 23-24.
The applicant was asked about the RO in cross-examination and said that he did not
recall it.[64]Provision of false or misleading information
[64] R2, TB3, pp 23-24.
Partner visa application
On 2 November 2016 the Applicant applied for a Partner (Temporary) (class UK) (subclass 820) visa and Partner (Residence) (class BS) (subclass 801) visa on the basis of his relationship with Ms Baker.[65] They were both refused on 24 January 2019 on the basis that the delegate believed that neither the Applicant or Ms Baker considered the relationship a long term one.[66]
[65] R2, TB6, p 134.
[66] R2, TB6, pp 136-141.
On 18 February 2020 Ms Baker reported to the WA police that the Applicant and herself had ‘been separated for four months’, and that she had gone to their family address ‘to collect some belongings’. [67] The police records show that they tried to contact her on 19 February at her mother’s home, who provided them with Ms Baker’s sister’s contact details. Ms Baker’s sister was contacted by the police. The records report that she told them ‘she believes that [Ms Baker] is currently living in [redacted] with her new partner known only as Gull’.[68] The record then reports that ‘inquiries conducted at station reveal that [Ms Baker’s] current partner Gul is [full name redacted]’ with an address provided.[69]
[67] R2, TB3, p 50.
[68] R2, TB3, p 56.
[69] R2, TB3, p 56.
On 20 February 2020 the police record in the same incident report that they spoke to the Applicant on the telephone and report that ‘he [had] last seen [Ms Baker] yesterday around 1pm at his place’ and further that he ‘plans to meet with [Ms Baker] later today’.[70]
[70] R2, TB3, p 59.
On 5 March 2020 the Applicant and Ms Baker attended the Tribunal for a hearing before Member Francis. It is significant that this hearing was only two weeks after the Incident Report made on 18 February 2020, and less than two weeks after the Applicant spoke to police and said that he had seen Ms Baker at ‘his place’. The Applicant’s current representative represented him before the Tribunal in his partner visa application and was present at the hearing on 5 March 2020.[71]
[71] Visa Transcript, p 1.
The Tribunal obtained and provided to the parties a copy of the Transcript of the hearing, which was conducted by Member Francis.[72] Member Francis asked the Applicant if he and Ms Baker were both still living together in their Cannington home and he answered yes.[73]
[72] R2, TB6, p 159.
[73] Visa Transcript, p 17.
Member Francis had the following exchange with the Applicant during the hearing:[74]
MEMBER: Three years, six months married. So if I asked you to describe the degree of companionship and emotional support that you draw from each other?‑‑‑We always support each other, even though we are in a hard situation, still ‑ ‑ ‑
What’s the hard situation? The visa?‑‑‑Yes, like, visa and, like, because we had planned a lot of things. We had planned to go to Pakistan this year. As well we apply for passport and, like, before I think I can take Janelle, I apply for visa for her. It was a half-application but it doesn’t need more application – after, like, one or two weeks you guys send me the letter that AAT is open and that we have to come here. So I told her we can’t go this time. So we might go after that. It’s not a safe country but my parents really want to meet her, so we will only come for a few days and we will meet in the city if you don’t want to come in the countryside. Islamabad is a safe place.
Islamabad?‑‑‑Yes, Islamabad is a safe zone, so we can come there and meet them.
Is she looking forward to going?‑‑‑Yes.
First time out of the country?‑‑‑She is a bit scared because ‑ ‑ ‑
Is the first time she’s left the country?‑‑‑Yes, she’s never been out.
[74] Visa Transcript, p 31.
A short time later, Member Francis said:[75]
So companionship and emotional support. It’s a very difficult set of words; I didn’t write them, someone else did. In the last four years have you – what’s the most difficult challenge you’ve had in the last four years, together?
[75] Visa Transcript, p 33.
The Applicant replied:[76]
I think it was (indistinct) all the time but now she was disappointed as well because I told her that my visa was refused and we have to go back before applying for AAT. She talked to her parents and her parents say, ‘It’s not a safe country and you are our youngest daughter, we will not allow you to go.’
[76] Visa Transcript, p 33.
Member Francis subsequently asked about the death of Ms Baker’s cousin, and the Applicant confirmed that Ms Baker had been very upset and he had supported her.[77]
[77] Visa Transcript, p 34.
The Applicant was asked directly by Member Francis whether he and Ms Baker were trying to conceive, to which he answered ‘yes’, and whether Ms Baker had fallen pregnant, to which he answered ‘no’.[78] Then the Applicant and Member Francis had the following exchange:
But also you’re a bit worried about this?‑‑‑Yes. But she is saying that ‑ ‑ ‑
But you do want to have children?‑‑‑Yes.
You’ve talked about it with her?‑‑‑She was young, before we had planned that we’re going, like, before – her 22, to Pakistan, but our visa was rejected. So we said, ‘Okay, we will go after that.’
Then when you come back from Pakistan ‑ ‑ ‑?‑‑‑Yes. When we got married we had planned that once she turned 22 we will be having kids.
How many kids do you want to have?‑‑‑I said two but she said maybe four.
She wants four kids?‑‑‑Yes. She said three or four, so ‑ ‑ ‑
You want two?‑‑‑I said two, yes.[79]
[78] Visa Transcript, p 35.
[79] Visa Transcript, p 35.
Ms Baker gave evidence in the proceedings. She was not asked directly where she was presently living. She was asked about hardship in the relationship, however, in the course of the following exchange:[80]
[MEMBER] Okay. The nature of your commitment to each other including the duration of the relationship, the length of time you’ve lived together. So we’ve established that you’ve lived together for four years and one month, and you’ve been married for three years and six months. Next question is a little bit tricky, but the degree of a companionship and emotional support that you draw from each other. How would you describe the degree of companionship and emotional support you get from him?‑‑‑It’s really good.
What’s the hardest thing you’ve been through recently?‑‑‑Like, together with him?
Either or, yes?‑‑‑No, we haven’t been through any ‑ ‑ ‑
(Indistinct)?‑‑‑No. We’ve always, like, been happy and – yes. Like, if I need help, he’ll, like, support me.
You been upset about anything?‑‑‑No.
[80] Visa Transcript, pp 46-47.
The Tribunal sent a copy of the Transcript to the parties and invited further submissions or evidence in response. The Respondent provided submissions in response to the Transcript on 9 July 2024. The Applicant provided a statutory declaration in response on
5 August 2024.The Applicant’s responsive statutory declaration included the following statement:
Initially, married life was progressing well until the end of 2018, when my first partner visa was refused. This situation led to insecurities in my relationship, as my ex-wife feared I might not stay with her permanently. Influenced by these fears and swayed by one of our friends, she made the difficult decision to undergo some undiscussed abortions. These events led to minor disruptions in our relationship.
However, we managed to get back on track, spending more and more time together and feeling optimistic once again.
Towards the end of 2019 and into early 2020, we experienced some issues again, resulting in arguments and conflicts that lasted only 1-2 days. I believe such disagreements are normal in any marriage. We stayed together until late August 2020, proving our commitment by attending almost all types of general events and meetings together, including the AAT hearing on March 5, 2020…
On 9 July 2020 the Tribunal remitted the Applicant’s partner visa applications with the direction that the Applicant met clause 820.211.[81] The Tribunal’s reasoning included the following findings of fact:
(a)The parties share a house, and the same bedroom of that house;[82]
(b)The parties portray their relationship openly and all family members on both sides are aware of the relationship and consider it genuine;[83]
(c)The credible evidence of Ms Bropho, Ms Baker’s mother, that the relationship is genuine and that she and Ms Baker’s father provide support and encouragement;[84]
(d)The parties have future plans together and wish to have children;[85]
[81] R2, TB6, p 159.
[82] R2, TB6, p 160.
[83] R2, TB6, p 161.
[84] R2, TB6, p 161.
[85] R2, TB6, p 161.
On 20 July 2020 the Applicant’s Partner (Subclass 801) was granted.[86]
[86] R2, TB6, p 162.
Declaration of criminal convictions
The Applicant has conceded that he did not declare his traffic offences in answer to being asked whether he has criminal convictions. He said, in effect, that he did not understand a plea of guilty to a traffic offence to be a criminal conviction.[87]
[87] Transcript, p 35.
CONSIDERATION
The issue for review by the Tribunal is whether the Applicant is of good character for the purposes of s 21(2)(h) of the Act.
Respect for the law
The Respondent submits the Applicant’s driving convictions demonstrate a disregard for laws that are aimed at protecting users of the road and go to the essential safety of the community.[88] The Tribunal agrees with that submission. The Applicant has demonstrated a disregard for such laws over a period of six years, during which time he has been guilty of speeds that unquestionably put lives at risk. The Applicant must have known the risk, given the ‘speed kills’ campaigns that have been regularly broadcast at state and national level through all forms of media throughout the Applicant’s time in Australia.
[88] RSFIC at [27]
The Applicant described his driving violations as ‘un-intentional’.[89] It is unclear how his many speeding offences could be described this way.
[89] Statutory Declaration of the Applicant dated 22 December 2023, p 1.
The first instance of the Applicant’s unlicenced driving in 2021 might have been a genuine mistake of fact; that might reasonably be described as unintentional. However, he admitted on cross examination that his second instance of unlicenced driving was in the full knowledge that he did not have the legal right to drive. His 2023 submission that he ‘had no other choice but to respond to alarms or driving to cover drop shifts or instances of no-shows’[90] is not correct; he could have chosen to accept that he had made a commitment which he was unable, as a matter of law, to fulfil and taken whatever consequence followed. He gave priority to his business commitments over his obedience to the laws of Australia. That choice reflects poorly on his character.
[90] R1, T7, p 61.
The Tribunal accepts the Respondent’s submission that the Applicant has taken little responsibility and shown limited insight into his offending.[91]
[91] RSFIC at [25].
The Applicant’s history of traffic offences resulted in his licence being cancelled until August 2023. He had the benefit of an Extraordinary Licence for some of that time.[92]
[92] R1, T4, p 44.
On 5 July 2023, the Department invited the Applicant to comment on a National Police History Check Results Report showing his previous two driving offences in the context of relevant legislation and policy on the good character requirement in s 21(2)(h) of the Act.[93] The Applicant was made aware of the impact of his disregard for the law on the possibility of obtaining citizenship before his licence was restored to him.
[93] R1, T6.
The Tribunal accepts that the Applicant’s non offending from the issue of his Extraordinary Licence to July 2023 may reflect a changed attitude to obeying the law. However, it is not clear to the Tribunal whether the Applicant’s non-offending from July 2023 to present arises from his pending citizenship review, and his understanding that any road traffic offences would influence the outcome of his review. In any event, it is not a long enough period to satisfy the Tribunal that the Applicant will not revert to his former non-compliance with traffic laws, which was demonstrated over a period from 14 May 2016[94] until the second suspension of his licence on 17 March 2022.[95]
[94] R2, TB4, p 75.
[95] R2, TB3, p 6.
The Applicant’s offending is not indicative of a person of good character.
Reports of Family Violence
The Applicant has not been convicted of family violence. The incident reports of family violence do not persuade the Tribunal that the Applicant engaged in any physically violent behaviour towards Ms Baker. However, he does appear to have engaged in stalking behaviour, directed at both Ms Baker and Gul. The issue of the RO restraining the Applicant and protecting Gul indicates that there was persuasive evidence before the Magistrates Court that there was risk that the Applicant would cause harm to Gul if not restrained. There are multiple accounts that Gul was Ms Baker’s new partner, and Ms Baker persuaded the WA Police on at least two occasions that the Applicant had engaged in stalking behaviour.
The Tribunal considers that this is sufficient evidence to cast doubt on the Applicant’s character, and the Applicant’s evidence about the events described in the police reports does not reassure the Tribunal. He placed blame on the conduct of Ms Baker, disclaimed any responsibility for the arguments giving rise to police involvement, and did not recall significant events sufficiently to give the Tribunal an alternative version of what had happened. The Tribunal is left with serious doubts about the Applicant’s character.
Misleading conduct
Partner visa application
In his permanent Partner (subclass 801) visa application the Applicant declared ‘yes’ to the question will he inform the Department ‘if the relationship between the applicant and sponsor breaks down or ends in divorce’.[96] It is not clear to the Tribunal when the final separation between the Applicant and Ms Baker actually occurred; it may not be clear to them. The collective evidence contained in the police incident reports strongly suggests that Ms Baker and the Applicant had separated in 2019 or very early 2020, and further that Ms Baker’s sister and others believed that she had moved in with her present partner, Gul, as of February 2020. The Tribunal is satisfied that as of 18 February 2020 Ms Baker was not living with the Applicant in their former home, and was telling people that she was living with Gul. The Applicant did not notify the Department in accordance with his obligations.
[96] R2, TB6, p 122.
The Tribunal is satisfied that on 18 February 2020 the Applicant and Ms Baker had a very significant argument and Ms Baker called the police. The Tribunal is satisfied that the Applicant intentionally withheld that information from Member Francis in March 2020. The Applicant was present in the hearing room, and represented, when Ms Baker gave evidence to Member Francis that they had always been happy and the Applicant did not contradict that evidence.
The Applicant did not mention to the Tribunal that Ms Baker had previously had multiple abortions, even in the context of the Member directly asking him about pregnancies and plans to have children. The Applicant’s evidence was misleading at best.
The Tribunal finds that, in the course of the application for review of the decision to refuse the Applicant’s partner visa, the Applicant withheld evidence, led false evidence from a witness and gave misleading evidence himself. That is conduct which reflects very poorly on his character. He has not taken responsibility for that conduct in the course of the present proceedings and has demonstrated no insight into his past behaviour.
Incoming passenger card
The Applicant concedes that he ticked ‘no’ in answer to whether he has criminal convictions, at a time when he had pleaded guilty to two traffic offences. However, the Tribunal shares the Applicant’s understanding that there is a distinction between a traffic offence and a crime. The form does not ask whether the incoming passenger has ‘been convicted of an offence’. The question on the incoming passenger card is clearly and unequivocally directed at convictions for crime. It offers no explanation of what a ‘criminal conviction’ is, but it is reasonable that an ordinary reader would understand it to be a conviction for a crime.
The offences occurred in Western Australia. A distinction is drawn in Western Australia between offences that are crimes and offences that are not crimes. The Criminal Code Act Compilation Act 1913 (WA) (Criminal Code WA) provides for all the offences contained within it being crimes. The Road Traffic Act 1974 (WA) (Road Traffic Act) only provides for some (but not all) offences being crimes. Section 59, for example, provides:
59 . Dangerous driving causing death or grievous bodily harm
(1) If a motor vehicle driven by a person (the driver) is involved in an incident occasioning the death of, or grievous bodily harm to, another person and the driver was, at the time of the incident, driving the motor vehicle —
while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle;
…
(b) in a manner (which expression includes speed) that is, having regard to all the circumstances of the case, dangerous to the public or to any person, the driver commits a crime and is liable to the penalty in subsection…
(Emphasis added)
It is clear from the terms of the Road Traffic Act that not everything described as an ‘offence’ is also a ‘crime’. Section 60B of the Road Traffic Act states:
60B. Penalties for offences against sections 60 and 60A
…
(4) If an offence is committed in the circumstance of aggravation referred to in section 49AB(1)(c), the offence is a crime.
(Emphasis added)
The Applicant has not, in fact, been convicted of any offence described as a crime in any relevant legislation. The Applicant has pleaded guilty to simple offences that are not specified as crimes. As such, the Applicant did not mislead the Commonwealth or conceal his history by answering ‘no’ to the question ‘do you have any criminal conviction/s’. He answered that question correctly.
The Tribunal accepts the Applicant’s evidence to the effect that the Applicant thought he was answering the question correctly at the time when he answered it. The Tribunal finds that the Applicant did not intend to mislead the Commonwealth or to conceal any relevant information by his answer.
Evidence of the Applicant’s good character
The Applicant asserts that he is a person of good character. That means very little given the lack of insight he displays into the barriers to such a finding by the Tribunal.
The Applicant also tendered multiple witness statements in support of his character, as well as adducing oral evidence from witnesses.
Ms Bella Bropho
Ms Bella Bropho provided a statutory declaration dated 29 April 2024, which the Tribunal tendered as Exhibit A2 at hearing. Ms Bropho confirmed that she was happy with the content of her statutory declaration at the hearing.
Ms Bropho’s statement described the Applicant as ‘an integral part’ of her family’s lives.[97] She said that the emotional toll from ‘two abortions in 2019 led to temporary distances’ and said that the Applicant had ‘shown nothing but kindness, respect, and patience, qualities that shine through even in moments of adversity’.[98]
[97] A2.
[98] A2.
On cross-examination Ms Bropho was asked if she knew why the Applicant and Ms Baker had separated and she said that Ms Baker had told her it was a bit of domestic violence; she had thought it was verbal rather than physical violence. She didn’t know whether police had been called, and she was unsure whether the separation was in 2020 or 2021.[99] She knew of Gul but wasn’t clear on the details of when his relationship with her daughter had first started and how it had progressed. She confirmed that Gul and Ms Baker have a
three year old son.[100][99] Transcript, pp 46-47.
[100] Transcript, p 48.
Ms Bropho described the Applicant as part of her family and said that she was grateful for his continued invitations to her after the divorce; she goes to barbeques at his home.[101]
[101] Transcript, p 48.
On balance, the Tribunal is prepared to accept that the Applicant presents as a very good son-in-law to Ms Bropho, and that he is a cherished member of their family. The Tribunal takes this into account in its assessment of the Applicant’s character. Support for aging parents is a positive character trait.
The Tribunal otherwise has doubts about Ms Bropho’s evidence. The Tribunal notes that Ms Bropho gave evidence to the Tribunal in 2020 in support of the Applicant’s partner visa. She had the following exchange with Member Francis:[102]
Do you know if they’ve talked about having children together?‑‑‑I think the right time – I think they’ve – they did talk about it.
Have they talked about it – have they told you what they’ve talked about?‑‑‑Not really, but I think the mention – the mention of children. The children was in the future when – I think when it was the right time or for them to have children. Yes, so there was talk about them being parents, and I reckon they would be great parents.
[102] Visa Transcript, p 53.
Ms Bropho did not mention to Member Francis that there had been two abortions in 2019, and that the Applicant had shown nothing but kindness at those times. That would have been highly persuasive evidence in support of the genuineness of the relationship if the Applicant had, indeed, been kind and supportive through such traumatic life events. The Tribunal does not accept that Ms Bropho is an accurate or forthright witness, and does not take her assessment of the Applicant’s character at face value.
Mr Robert Baker
Mr Baker’s witness statement was not written by Mr Baker. It was drafted in an idiom completely foreign to Mr Baker’s demonstrated turn of phrase, and Mr Baker stated during his oral evidence that he hadn’t written it and didn’t know who had. Mr Baker said that he was happy with the content of the statement, however.[103]
[103] Transcript, p 53.
Mr Baker’s written evidence is that the Applicant is ‘a person of integrity and kindness’ whose ‘presence at family events is not just welcomed but cherished’.[104] The witness statement says that his daughter and the Applicant ‘encountered the same trials any couple might face, yet they managed these with a maturity and understanding that speaks volumes about their commitment to each other’.[105] Mr Baker’s use of the present tense describing his daughter’s relationship with the Applicant is not relieved anywhere by any actual acknowledgement of their divorce or indeed even any acknowledgement that they separated and on what terms.
[104] A3.
[105] A3.
Mr Baker’s oral evidence was that he had ‘never seen any violence or nothing’ between his daughter, Ms Baker, and the Applicant.[106] He went no further than that.
[106] Transcript, p 55.
As to Ms Baker’s relationship with Gul, Mr Baker said that Gul was a friend and it was ‘news to [him]’ if Gul and his daughter were in a romantic relationship.[107] As Ms Baker, by her own account below, is now living with Gul and has a child with him, it is the Tribunal’s view that Mr Baker’s evidence cannot be relied upon.
[107] Transcript, p 54.
Mr Muhummad Kamran
Mr Muhummed Kamran is the Applicant’s accountant and provided a character reference dated 11 January 2024, in which he attested to the Applicant’s character. Mr Kamran demonstrated awareness of the Applicant’s driving without a licence and indicated that the Applicant had ‘demonstrated tremendous growth’ since that time. He says that the Applicant is an integral part of the team, who is committed to fulfilling his civic duties and who diligently pays his taxes.
Mr Kamran gave evidence to the Tribunal at the hearing by telephone. He gave evidence about the Applicant’s business affairs, which appear to be in good order. He could not recall the Applicant’s business affairs at the time of the traffic offence which the Applicant attributed to an employee shortage.
The Tribunal accepts that the Applicant is diligent in his business affairs, and that he has a strong work ethic. The Tribunal accepts that the Applicant now presents to professional colleagues as a law-abiding person who is ‘a responsible and mature individual who has learned from his past mistakes’.[108] Where persons speak well of an applicant, the Tribunal will take that into account in assessing that applicant’s character.[109] That said, it is clear that the assessment of good character entails considering and weighing the person’s enduring moral qualities and not the good standing, fame or repute of the person in the community.[110] In this instance, the Tribunal is not satisfied that the professional reputation of the Applicant overcomes the other evidence casting doubt on his enduring moral qualities.
[108] Character reference of Muhammad Kamran dated 11 January 2024.
[109] Irving, pp 424–425.
[110] Irving.
Ms Janelle Baker
The Tribunal has been provided with a witness statement from Ms Baker dated 24 April 2024. For the reasons that follow, the Tribunal gives it no weight.
Ms Baker appeared at the hearing by telephone. She did not have a copy of her statement to hand.
During cross-examination Ms Baker said that she had not written her witness statement, and thought that the Applicant might have written it. She received it in person from the Applicant at a chemist, where she met him in order to sign it. She had not read it in advance and hadn’t been sure why she was meeting the Applicant at a chemist. She said that her parents had shown up at her place and told her to go to the chemist in 20 minutes to meet the Applicant so she had. They did not explain why. She waited 20 minutes for the Applicant to arrive at the chemist.[111]
[111] Transcript, p 63.
Ms Baker said that she had not read all of the statement, which she thought was about their marriage.[112]
[112] Transcript, p 63.
The Tribunal accepts Ms Baker’s evidence that she did not write her witness statement. The language of the statement includes the phrases ‘my experiences and reflections are pertinent to addressing some of the concerns’ and ‘he has always been a great partner who handled our situations with as much grace and understanding as one could in such circumstances’.[113] The idiom of the witness statement is entirely at odds with Ms Baker’s demonstrated speech pattern and preferred choice of spoken language.
[113] Statutory Declaration of Janelle Baker, dated 24 April 2024.
Ms Baker was asked by the Applicant’s representative about her separation from the Applicant and she said that she thought she and the Applicant had separated in November 2020.[114] She was asked about the evidence in the police reports that she and the Applicant had separated in 2019 and she became more certain that they had separated in 2020.[115] She confirmed that she had not been afraid that the Applicant would attack her with a knife in 2018, and that she had been concerned for his safety and that he might self-harm.[116]
[114] Transcript, p 61.
[115] Transcript, p 68.
[116] Transcript, p 71.
In cross-examination Ms Baker described Gul as her partner and said that they were dating from the middle of 2021. She said that her child with Gul was born in 2022.[117]
[117] Transcript, pp 65-66.
Ms Baker confirmed that nude photos had been sent to Gul in 2020 but said that she had not been dating him at the time.[118] She was asked about the telephone number that the photos were sent from and she said that the Applicant would pay random strangers to message Gul.[119] She said that the Applicant had been present in Court when the RO was made protecting Gul and the messages had stopped after that.[120]
[118] Transcript, p 66.
[119] Transcript, p 78.
[120] Transcript, p 69.
Ms Baker said that the Applicant would follow Gul everywhere; sit in front of his house, set out cameras, and send messages. She said that it all stopped after the RO issued.[121] She recalled the incident where the Applicant’s car was damaged by her cousin and said that a brick had been thrown.[122] She did not recall the February 2020 phone call to the WA Police.[123]
[121] Transcript, pp 69-70.
[122] Transcript, p 70.
[123] Transcript, p 72.
Ms Baker was taken to an incident report dated 13 February 2020 in the Tender Bundle, which reflects that she has 28 court outcomes.[124] She said that she didn’t recall details.
[124] Transcript, p 72; R2, TB3, p 47.
Ms Baker said that the Applicant would speed a lot when she was a passenger and she sometimes told him to slow down.[125] She described his personality as kind and said that he was nice.
[125] Transcript, p 76.
The Tribunal is prepared to accept that the Applicant is kind. Otherwise, Ms Baker’s evidence does not do much to establish that the Applicant is a person of good character.
CONCLUSION
The limited evidence of good character adduced by the Applicant’s witnesses does not overcome the doubts created by his disregard for Australia’s road laws, the evidence of his stalking behaviour, or his misleading conduct in order to obtain a favourable partner visa outcome.
The Tribunal cannot presently be affirmatively satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.
This does not mean that the Applicant is any way precluded from making a fresh application for citizenship in the future. It does not deprive the Applicant of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a period of positive contribution to the Australian community.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated
4 September 2023 to refuse the Applicant’s application for citizenship by conferral, is affirmed.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Member Henderson
..............[Sgd]..........................................................
Associate:
Dated: 30 September 2024
Date of hearing: 1 May 2024 Representative for the Applicant: Ms Narinderpal Kaur, Connect Migration Solutions Solicitors for the Respondent: Mr Alex Chan, Sparke Helmore
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