Khan and Minister for Immigration and Border Protection (Citizenship)
[2018] AATA 3029
•22 August 2018
Khan and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3029 (22 August 2018)
Division:General Division
File Number:2016/2440
Re:Nehmatullah Khan
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:22 August 2018
Place:Adelaide
The decision under review is set aside and remitted to the Respondent for reconsideration in accordance with the direction that the Applicant is a person of good character for the purposes of s 25(2)(b)(iii) of the Australian Citizenship Act 2007.
.................................[Sgd]................................
Senior Member B J Illingworth
CATCHWORDS
CITIZENSHIP – Cancellation of approval to grant citizenship – Whether applicant is of good character – Where applicant supplied bogus document under an honest but mistaken belief – Whether applicant engaged in misleading and deceptive conduct – Where applicant gainfully employed – Decision under review set aside and remitted.
LEGISLATION
Australian Citizenship Act 2007 – ss 21, 24, 25, 25(2)(b)(iii), 28
Australian Citizenship Regulations 2007
Migration Act 1958
Migration Regulations 1994Children’s Protection Regulations 2010
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Irving v Minister for Immigration Local Government and Ethnic Affairs (1996) 68 FCR 422
Re Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Re Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Zheng and Minister for Immigration and Citizenship [2011] AATA 304
Bhatt v Minister for Immigration and Citizenship (2012) 262 FLR 219
SZJDS v Minister for Immigration and Citizenship [2013] FCCA 1383
Re Sadiq and Minister for Immigration and Border Protection [2016] AATA 463
Re Al Hashimi and Minister for Immigration and Citizenship [2012] AATA 534
Re Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086
Re Khan (Migration) [2017] AATA 1657SECONDARY MATERIALS
Department of Immigration and Border Protection, Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Senior Member B J Illingworth
22 August 2018
INTRODUCTION
This is an application by Mr Nehmatullah Khan (“the Applicant”) to review the decision of a delegate of the Minister for Immigration and Border Protection dated 29 April 2016, to cancel the Applicant’s approval of Australian Citizenship by conferral pursuant to s 25(2)(b)(iii) of the Australian Citizenship Act 2007 (“the Act”) on the basis that the Applicant did not meet the requirements to be of good character.
The delegate decided that when lodging a Child Migrant Orphan Relative (Offshore) (AH 117) (“Orphan Relative”) visa application the Applicant reduced his age from 17 years to 15 years and provided the Department with a fraudulent document, namely a fraudulent Tazkira.
BACKGROUND
The Applicant originally lived in Afghanistan with his parents and three siblings. They were citizens of Afghanistan. The family fled to Pakistan in 2000 when the Applicant was very young.
In 2002 the Applicant’s father died from cancer of the oesophagus. The Applicant’s elder brother left the home and it is said his whereabouts are now unknown. The Applicant thereafter resided in Pakistan with his mother, elder sister Mrs Amina Muradi, younger sister and younger brother.
The Applicant’s elder sister (Mrs Muradi) married in Pakistan. Her husband moved to Australia and subsequently sponsored Mrs Muradi to come to Australia in 2005 on a spouse visa.
On 27 January 2009 the Applicant and his family members applied for a humanitarian visa. Within the application the Applicant’s date of birth was given as 27 December 1992.[1] That application was sponsored by Mrs Muradi.
[1] Exhibit 1, T6, page 80.
By letter dated 23 May 2009, the Department advised the humanitarian visa application was refused.
The Applicant’s mother then abandoned the Applicant and his siblings, and on 19 October 2009 the Applicant and his siblings applied for an Orphan Relative visa, which gave the Applicant’s year of birth as 1994. The Applicant provided a copy of a Tazkira issued on 12 June 2009, which stated his age was 15 years.
On 24 May 2010 the Orphan Relative visa was approved and the Applicant arrived in Australia in August 2010.
On 14 August 2014 the Applicant lodged an application for citizenship[2] by conferral in which his date of birth was given as 7 April 1994.
[2] Exhibit 1, T9, page 95.
By letter dated 16 September 2014, the Minister for Immigration advised the Applicant that his application for citizenship had been approved.
On 14 August 2014 the Department of Immigration and Border Protection requested verification of the Applicant’s Tazkira. On 21 December 2015 the Department received a verification report from the Australian Consulate General in Dubai that indicated the Tazkira issued to the Applicant in Quetta, Pakistan was fraudulent.
By letter dated 22 December 2015 the Applicant was sent a letter headed “Notice of intention to consider cancellation of your approval because you no longer meet the eligibility criteria”.[3] That notice referenced:
(a)The Applicant’s fraudulent identity document, namely his Tazkira; and
(b)The Humanitarian visa application which declared his year of birth as 1992, whereas the Orphan Relative visa declared his date of birth as 1994,
as support for the assertion that the eligibility criteria may not be met.
[3] Exhibit 1, T22, pages 147‑148.
Following the Applicant’s response to the notice to consider cancellation of his approval for citizenship, he was advised by letter dated 29 April 2016 that his approval for Australian citizenship was cancelled.[4]
[4] Exhibit 1, T24, pages 154‑156.
The fact of the fraudulent Tazkira also led to the Applicant’s Orphan Relative visa being cancelled on 28 November 2016 pursuant to s 109(1) of the Migration Act 1958 (“the Migration Act”) on the basis that the Applicant failed to comply with s 103 of the Migration Act by providing a “bogus document” as defined in s 5(1) of the Migration Act, namely the Tazkira.
The review of the decision to cancel the Applicant’s approval for Australian citizenship was put on hold by the General Division pending the Migration Review Division (“MRD”) review of the cancellation of the Applicant’s Orphan Relative visa.
ORPHAN RELATIVE VISA PROCEEDINGS
The cancellation of the Orphan Relative visa was heard by the MRD and on 25 September 2017 presiding members Deputy President Redfern and Member Millar published their decision. In that decision the Tribunal said as follows at [45] to [48]:
44.Ms Muradi provided a statement regarding Mr Khan’s age to the effect that she had to guess Mr Khan’s age relative to her own for both the protection visa and the orphan relative visa applications. She said that they come from a remote area where there is no hospital or school, and that people who lived there were not educated to a degree they could record a person’s birth date or year. In regard to his age, we accept that there is little emphasis on a date of birth in Afghanistan and that dates of birth are often not recorded. Ms Muradi said she advised Mr Khan to go to the Consulate for the taskiras as that was where she obtained her taskira. We are satisfied on the basis of Mr Khan’s oral evidence of the sequence of events and approximate ages of himself and his siblings that the date of birth provided in the taskira and the visa application approximates his age at the time.
45.Mr Abdullahi gave sworn evidence that he knew Mr Khan’s father and grandfather. Mr Khan’s father would work for Mr Abdullahi for two to three months of the year until 1997 when Mr Abdullahi came to Australia. He said he did not know much about his family, but he saw that Mr Khan’ father had little children when he went to collect him for work. Mr Abdullahi was put forward as a witness who could give evidence in support of Mr Khan’s identity. While statements of witnesses may be a way to establish identity for Afghanis, Mr Abdullahi did not meet Mr Khan in Afghanistan. At best this evidence establishes that he knew Mr Khan’s father and his father had little children about the age of Mr Khan and his siblings.
46.There was some concern that Mr Khan’s year of birth was stated to be [year] in the protection visa application and [year] in the orphan relative visa application. Both these birth years result in Mr Khan being under 18 at the time of the visa application in 2009 as required for the grant of the visa. Mr Khan’s description of his approximate age and that of his siblings at various points in time is consistent with the age on the taskira, which is [age] years old in 2009. Mr Khan says his sister would be unable to check the dates on a visa application forms. In light of this, we are not satisfied that the age stated in the taskira is false.
47.During the hearing, Mr Khan offered to provide DNA evidence to support his identity and, in particular, his stated relationship with his sister Ms Amina Muradi. The DNA test results show they are siblings to a probability of over 99.9%, and we are satisfied he is her brother.
48.Having regard to the available evidence, we make the following findings of fact about Mr Khan’s identity and the document provided in support of his application for a subclass 117 visa:
(1)Mr Khan made application for a subclass 117 visa on 19 August 2009 after being earlier refused a protection visa. Mr Khan’s older sister, who resided in Australia at that time, sponsored his application. Mr Khan’s younger siblings also made applications for visas under subclass 117.
(2)In support of this application, Mr Khan submitted a taskira that he obtained from the Afghan Consulate in Quetta, Pakistan. We accept that the taskira was not registered and was not a genuine document. As such, the taskira was a bogus document within the meaning of s 5(1)(b) of the Act. However, we also accept that Mr Khan was not aware of this at the time he submitted it.
(3)While the taskira may be ‘bogus’, we are not satisfied that the information contained in the document was incorrect.
(4)On balance and in light of the taskiras provided for Mr Khan’s father, the letter from the Consulate and Mr Khan’s oral evidence we are satisfied that while the document is a bogus document, the information about Mr Khan’s identity and approximate age contained in the document is correct.
(5)We are satisfied that the applicant is ‘Nehmatullah Khan’, that he was born in Afghanistan and was under 18 years of age at the time of the application for a subclass 117 visa. We are also satisfied that Mr Khan has three siblings and that the sponsor for his subclass 117 visa was his older sister.
The Tribunal also found the following at [73] to [74]:
73. This does not mean that the taskira included incorrect information and that Mr Khan is not who he says he is or that he has a false identity. As noted above, while we accept that the taskira is a bogus document, based on the material before us we are satisfied that the information about Mr Khan’s identity and approximate age contained in the document is correct.
74.Having regard to the mandatory considerations set out in r 2.41, we would have set aside the decision to cancel the visa in any event for the following reasons:
(1)Regulation 2.41(a) requires that the decision maker take into account the correct information. On the material before us that information would be to the effect that the information about Mr Khan’s identity and approximate age contained in the document is correct. This would weigh against cancellation.
(2)Regulation 2.41(c) requires the decision maker to take into account whether the decision to grant the visa was based, wholly or in part, on incorrect information or the bogus document. While we have not been provided with the subclass 117 visa file, it is likely that the decision was at least in part based on the taskira. As such, this factor would weigh in favour of cancellation.
(3)Mr Khan was granted a subclass 117 (Orphan Relative) visa in 2010. The requirements for the grant of this visa include that Mr Khan is the orphan relative, as defined in the Regulations, of an Australian citizen. Mr Khan’s sister is the Australian permanent resident. At the time Mr Khan applied for the visa in 2009, to meet the definition of orphan relative the person must be under 18 years of age at the time of the application, not have a spouse or de facto partner and be unable to be cared for by either parent because both parents are deceased, permanently incapacitated or of unknown whereabouts.[5] Mr Khan’s taskira is relevant to his relationship with his Australian sponsor and his age. The available evidence, including the DNA evidence, supports a finding that Mr Khan would have complied with the criteria for a subclass 117 visa at the time of his application. In the absence of evidence to the contrary, we are not satisfied that the visa would have been refused if all the facts had been known. While this is speculative and therefore would not carry significant weight, this matter, which is related to the prescribed circumstances in r 2.41(a) and (c), would tend to weigh against cancellation.
(4)Based on the material before us, which we accept in the absence of evidence to the contrary, it would appear that the circumstances referred to in paragraphs (d), being the circumstances in which the non-compliance occurred, (e) being the present circumstances of the visa holder, (h) being the time that has elapsed since noncompliance and (k), being the contribution made by the visa holder to the community, are all in favour of Mr Khan and would weigh against cancellation of the visa.
(5)At the time Mr Khan applied for the subclass 117 visa to obtain a valid taskira, a person was required to travel to his or her place of origin in Afghanistan.[6] Mr Khan says he was unable to read and write at that time and he followed the advice of his sister and community members in obtaining the taskira, and provided his father’s taskira and two witnesses as he was required to do. At the time he obtained the taskira he was a minor and responsible for his younger siblings. We are persuade[sic] by Mr Khan’s evidence that he considered his taskira to be genuine, which is reflected by him again providing the taskira in his application for Australian citizenship. As Mr Khan said, if he had known the document was not genuine he would not have again provided it to the department.
(6)Mr Khan has been in Australia for nearly seven years. Mr Khan gave evidence that as his older sister had limited ability to financially support the three siblings when they first arrived in Australia, the family made a decision about who received an education. He has two sisters and a brother in Australia and lives with his brother and younger sister. His brother went to school and Mr Khan got a job delivering catalogues while he learned English from his brother. He then started work at the meat factory in Murray Bridge and worked there for 16 months but struggled with English. He worked for vegetable growers in Two Wells de-leafing plant before getting a job at the Ingham Chicken Factory in 2012 where he continues to work.
(7)Mr Khan’s brother recently completed a degree in Mechanical Engineering, but is not currently working. His sister younger sister has scoliosis which means she cannot stand for long and finds it difficult to do household tasks, but does not require assistance with personal care. His brother and sister are Australian citizens, and we are satisfied he has financially supported his siblings and continues to do so. His elder sister Ms Muradi is also an Australian citizen. She has three children, who he sees most days.
(8)Mr Khan is engaged to Ms A an Australian citizen. Ms Muradi said in accordance with their culture she proposed on behalf of Mr Khan. Ms Muradi gave evidence that she attended their engagement and sees them together as they visit her at home…Ms A provided a statement to the department. She states she is from Afghanistan and arrived on a protection visa with her family. She says it is not safe for her to return to Afghanistan, and she would not be able to do so. She says they were engaged on 9 April 2016 and had planned to get married the following year. Photographs were provided stated to be from the engagement ceremony.
(9)Mr Khan provided a letter from the Chairperson of the Afghan United Association stating Mr Khan is well known to the organisation, and attends programs. The letter confirms he is a member of the Hazara community. He also provided letters of support from friend[sic] and co-workers, and a copy of child –related employment screening showing he is suitable for volunteer work with children.
(10)The Tribunal accepts Mr Khan is well established in the community, and has been employed since arriving in Australia and has a number of connections with Australian citizens. He is engaged to an Australian citizen. He has supported his younger brother in completing his tertiary education and supports his younger sister. All of his immediate family are in Australia.
(11)Mr Khan acknowledges he provided his taskira to the department with his application for Australian citizenship, and states this is because he was not aware it was not a genuine document. The Tribunal accepts he was not aware it was not a genuine document until advised by the department that this was the case. He has not since sought to dispute the document. Nor is there any evidence of other instances where Mr Khan may have breached his obligations under Subdivision C (refer r 2.41(f)). Subject to that fact that Mr Khan does not hold a bridging visa and was therefore unlawful at the time of the hearing following the cancellation of his visa, there is no evidence of other instances of non-compliance or breaches of the law by Mr Khan since non-compliance (refer paragraphs (g) and (j)). The fact that Mr Khan did not apply for a bridging visa was an issue of concern raised by the Tribunal given he has a registered migration agent representing him. While Mr Khan must take responsibility for his immigration status, he sought advice following the cancellation and was not advised to apply for a bridging visa. If he had done so, there is no reason to believe he would not have been granted a bridging visa pending the Tribunal’s review. These matters are relevant to the seriousness of his noncompliance. On balance, the foregoing matters would weigh against cancellation.
[5] Cl. 177.211 of Schedule 2 of the Regulations and r.1.14 of the Regulations.
[6] See, for example, Canada: Immigration and Refugee Board of Canada, Afghanistan: The issuance of tazkira certificates; whether individuals can obtain tazkiras while abroad, 16 December 2011, AFG103918.E, available at: [accessed 8 June 2017]
ISSUE FOR DETERMINATION
The issue for determination by the Tribunal is whether the Applicant is not of good character pursuant to s 25(2)(b)(iii) of the Act.
LEGISLATIVE FRAMEWORK
Pursuant to s 24(1) of the Act, if a person makes an application for Australian Citizenship pursuant to s 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian Citizen.
Pursuant to s 25 of the Act, the Minister may, relevantly, cancel an approval given to a person to become an Australian citizen if the person:
(a)has not become an Australian citizen under s 28 (s 25(1)(a)); and
(b)is not of good character (s 25(2)(b)(iii)).
Accordingly the Tribunal must be positively satisfied the Applicant is not of good character. This is subtly different to s 21(2) of the Act which requires the decision maker, and therefore the Tribunal, to be satisfied the person is of good character.
The term “not of good character” is not defined by the Act. The Citizenship Policy (“the Policy”) provides guidance to decision-makers in regards to interpretation, and exercise of powers under, the Act. The Tribunal is not bound to apply the Policy however should give regard to, and apply the Policy unless there are cogent reasons not to do so: ReDrake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The Tribunal is not aware of any cogent reason why it should not take the Policy into consideration.
Chapter 11 of the Policy sets out the relevant legislative requirements and policy guidelines for Australian citizenship, where good character is involved. In referencing “what is good character” it provides that:
‘Good character’ refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship.
Character considerations under the Migration and Citizenship Acts are not the same and it is possible than an applicant could have passed the migration character test but still not be of good character under the Act. Reference is made to the definition of “good character” in Irving v Minister for Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, Lee J at 431‑432:
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 the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion… A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character… Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The Policy advises that “good character” is to be objectively assessed by reference to “enduring moral qualities” which encompass the following concepts, namely:
(a)that the characteristics have been demonstrated over a very long period of time:
(b)distinguishing right from wrong; and
(c)behaving in an ethical manner conforming to the rules and values of Australian society.
The Policy goes on to state:
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
This broad definition means that a decision maker can be satisfied that an applicant is of good character if the applicant has demonstrated good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship processes.
In ReFenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931, Deputy President Breen discussed the role of the character requirement in a citizenship application at [8]:
The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make positive contributions to the community they want to call home. The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn 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 longer period of positive contribution to the Australian community.
In ReZheng and Minister for Immigration and Citizenship [2011] AATA 304; Deputy President Forgie at [120] said:
In the context of the Act, loyalty to Australia, a belief in a democratic form of government, a respect for the rights and liberties of all Australians and obedience to and observance of the law are values that are regarded as significant. An assessment of a person’s character will need to have regard to them. They are not values that can be assessed in the abstract. Instead, they are measured in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do.
The Policy also provides guidance on weighing up the character decision. The Policy states:
…Having regard to the words of the Preamble, and the pledge to be made if citizenship is approved, decision makers are asking themselves:
×would a person of good character have behaved the way the applicant did
×what is there to demonstrate that the applicant has upheld and obeyed the law
×has the applicant behaved in accordance with Australia's community standards
×does the applicant share Australia’s democratic beliefs and respect its rights and liberties.
In RePrasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 Deputy President McDonald stated at [7]:
…a decision about whether a person is of good character requires the consideration of an aggregate of qualities. It is true to say, however, that despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.
The Minister’s primary contention, in summary, is that the act of procuring and providing a bogus document, and the provision of different birth dates, is evidence of deceptive and fraudulent conduct not in accord with community standards.
A question for the Tribunal will be whether there are any mitigating circumstances, or explanation provided by the Applicant with respect to those concerns raised by the Minister about the Applicant’s character, and if so, whether they are outweighed by those behavioural issues in question.
AUSTRALIAN CITIZENSHIP CANCELLATION
The General Division in considering the review of the decision to cancel the application for citizenship is not bound by the findings of the MRD in considering the cancellation of the subclass 117 Orphan Relative visa.[7] Indeed the Tribunal must make its own assessment independent of those made by the MRD.
[7] Bhatt v Minister for Immigration and Citizenship (2012) 262 FLR 219; the Court held that the Tribunal is not a Court operating within the doctrines of binding authority or judicial comity and that it is not obliged, in law, to give any weight to another Tribunal decision that would have, if followed, provided the applicant with the outcome sought.
However the Tribunal is entitled to take into account the findings of another Tribunal in the exercise of its review powers: SZJDS v Minister for Immigration and Citizenship [2013] FCCA 1383 at [18]-[21].[8] As such, the findings of the MRD may serve to inform the General Division in its findings particularly if, for example, there is an inconsistency in the evidence before the General Division with the evidence and/or findings of fact by the MRD.
[8] See SZJDS v MIAC [2013] FCCA 1383 (Judge Raphael, 10 September 2013) at [18]-[21]. Undisturbed on appeal: SZJDS v MIBP [2014] FCA 51 (Jagot J, 12 February 2014); SZRLB v MIBP [2014] FCCA 2851(Judge Nicholls, 5 December 2014) and SZTQL v MIBP (No 2) [2015] FCA 548 (Allsop CJ, 4 June 2015) at [20] - [21].
THE EVIDENCE
The Applicant’s evidence was to a large extent a repeat of that evidence given before the MRD.
The Applicant’s elder sister Mrs Muradi sponsored the Applicant and his younger siblings to come to Australia, first by an application for a Humanitarian visa, which was rejected; and then by an application for an Orphan Relative visa which was approved. Mrs Muradi completed the forms and at the time of the Humanitarian visa application she guessed his age. The Applicant had no papers indicating his date of birth.
At the time of both visa applications, the Applicant did not know and still does not know the whereabouts of his older brother. This became an issue in cross‑examination, to which I will later refer.
The Applicant explained the circumstances in which he obtained his Tazkira. That explanation was consistent with the findings of the MRD to which I have referred. His evidence can be summarised as follows:
(a)The Applicant was a teenager at the relevant time, namely approximately 15 years of age. He could not read or write. The Applicant could not return to Afghanistan to obtain official documents. He was advised how to obtain a Tazkira by Mrs Muradi who had herself obtained a Tazkira before travelling to Australia, and also from others in the community.
(b)Consistent with that advice the Applicant took his father’s Tazkira to Quetta. He went with two witnesses and 2,000 to 3,000 Pakistani rupees which he believed to be the fee required to obtain the Tazkira. He received the Tazkira approximately one month later.
(c)The Applicant said that when using the Tazkira and in providing his date of birth in in his application for citizenship, he believed the Tazkira to be a genuine document, and the information contained within it true and correct. It was not until the Department advised him that the Tazkira was bogus that he became aware of any issue with respect to it. Following information received from the Department, the Applicant conceded the Tazkira was bogus. That concession was to his credit particularly given the consequences that potentially flowed from the use of a bogus document.
(d)When living in Pakistan the Applicant was responsible for supporting the family, particularly after his mother abandoned them. At the time of his arrival in Australia the Applicant could not speak English. It was decided that the Applicant would work to help support his younger siblings which enabled them to pursue their education. He commenced working whilst learning English from his brother. His younger brother has since completed a university degree in Mechanical Engineering.
(e)The Applicant’s employment has included that of a meat processor at Murray Bridge, in the food industry at a de-leafing plant, and at Ingham’s Chicken Factory where he now works. He also has a second job as a taxi driver. He is licensed to drive an access taxi and he assists those in the community with mobility issues who need a taxi with wheelchair accessibility.
(f)The Applicant is involved in the Afghan community. He is involved in fund raising and regularly sends money to those in need in Afghanistan including those who are victims of bombing, who need surgery and are generally in need. The Applicant collects money from members of the Afghan community. He is provided with the name of a person to whom he is to send the collection, which he does via the internet.
(g)The Applicant was cross‑examined about the money he sent to people in Pakistan. He said, and I accept, that the money was from collections he and others received from members from the local community and donations he and his family also made. The Applicant was referred to a number of such transactions in cross-examination.
(h)On 23 September 2013 the Applicant sent $1,566.00[9] to Mr Syed Hadi, who he knew and who worked for a charitable organisation. However, the Applicant no longer trusts Mr Hadi and has not sent money to him in recent times.
(i)On 26 September 2013 the Applicant sent $401.00[10] to a gentleman named Ahmad in Quetta, Pakistan. Given the passage of time he does not now recall who Ahmad is, but said he would have known at the time. He was not sure where the money came from, but believed it may have been from two collection boxes which he kept at home. He said he, his brother and sister put money into the collection boxes or sometimes guests would also make a contribution.
(j)On 27 January 2014, the sum of $2,435.00[11] was sent to Mr Zakir Hussain. The person who is recorded to have sent the money was the Applicant, but the Applicant said in evidence he had no memory of sending it and believed his identification, such as his driver’s licence, may have been used by another to do so. He could not give any other explanation surrounding that transfer of funds.
(k)On 15 July 2014 the Applicant sent $2,492.00 to Mr Sikander in Quetta, Pakistan.[12] He was known to the Applicant as an Afghan living in Quetta. The Applicant understood that Mr Sikander gave the money to a family that was in a desperate state.
(l)On 3 September 2014[13] the Applicant sent $2,481.00 to Mr Ahmedullah Juma Khan at an address in Quetta. Further, on 1 October 2014[14] he sent $5,463.00 to the same gentleman and thereafter smaller sums of money were sent on at least three occasions between 15 October 2014 and 26 November 2014.
(m)On 29 December 2014 the Applicant sent $4,946.00 to Mr Wajahat Ali Ali Madad in Quetta.[15] This, the Applicant said, was for a wedding and was money sourced from the Afghan community in South Australia.
(n)There were other money transactions which were drawn to the Applicant’s attention, which he described as contributions to Ramadan and another wedding. The Applicant said that giving charity is important in Islam and the more one gives the better one will be in another world.
(o)The Applicant was cross‑examined about the person Mr Ahmedullah Juma Khan who had the same name as his older brother whose whereabouts were said to be unknown.
(p)The Applicant was also cross‑examined about the address of Mr Ahmedullah Juma Khan as it was the same street in Quetta where the Applicant had previously resided. The Applicant said that it was not his brother and the name was a common name. If it was his brother, he would have been paying money to sponsor him to come to Australia, not to send money to him in Pakistan as suggested.
[9] Exhibit 2, ST10, page 164.
[10] Exhibit 2, ST10, page 162.
[11] Exhibit 2, ST10, page 160.
[12] Exhibit 2, ST10, page 157.
[13] Exhibit 2, ST10, page 154.
[14] Exhibit 2, ST10, page 153.
[15] Exhibit 2, ST10, page 145.
As will be seen from the evidence of other witnesses, the name Ahmedullah Juma Khan is a common name within the Afghan community. Members of the Applicant’s family did not know this person to be the elder brother. Further it is common practice for the community to send money back to those in need in Pakistan and Afghanistan and there was nothing sinister or improper about any of the monetary transactions in which the Applicant was involved.
Mr Muhammed Hassan Saiedi gave evidence. He has known the Applicant since approximately 2008 when he arrived in Australia and joined their community. He sees the Applicant at community events, religious events and they attend the same Mosque.
Mr Saiedi explained that the community sends money overseas to those in need and he has done so once himself. Mr Saiedi also said that the Applicant does volunteer work and undertakes other work to help the community, such as at weddings where he contributes to the organisation of the celebrations, or if a person dies he will come to the community and pray and make food for the funeral celebrations. He never refuses to come to the aid of those in the community who need his assistance.
Mrs Amina Muradi the elder sister of the Applicant gave evidence. She was assisted by an interpreter as were both her husband, and Mr Khuda Nazar Abdullahi.
Mrs Muradi provided a statement[16] in which she explained why in the Humanitarian visa application she wrote the year of birth of the Applicant as 1992. This was confirmed in her oral evidence namely that she never knew her brother’s year of birth. Year of birth was not an important consideration in the Afghan community.
[16] Exhibit 1, T23, page 151.
She said that her husband filled in the visa forms, but she provided him with the information to complete them including the Applicants age. She said that she estimated his age because there were no documents for her to rely on. She said that when the Applicant later applied for Australian citizenship he relied on the Tazkira, when he wrote 1994 as the year of the birth. The Tazkira was the document upon which some reliance could be placed. However, she also said that the Tazkira was also an estimate.
With respect to her elder brother Ahmedullah Juma Khan, Mrs Muradi said she last saw him about 23 years ago in Afghanistan at a time when she was already married. She does not know his whereabouts now and has not heard from him since that last contact.
Mrs Muradi also knew the Applicant was sending some charity money overseas, but she did not know to whom it was sent. She did not know who the person Ahmedullah Juma Khan was to whom the Applicant sent money on occasions. She conceded the name was the same as her elder brother.
Mr Hussain Ali Muradi, Mrs Muradi’s husband gave evidence. He confirmed that he filled in the visa application forms which included the Applicant’s date of birth from information provided by his wife.[17]
[17] Exhibit 2, ST1, page 1.
His evidence was consistent with that of the other witnesses that the elder brother Ahmedullah Juma Khan and his whereabouts were unknown but possibly in Pakistan. However contrary to the evidence of Mrs Muradi, he said Ahmedullah Juma Khan travelled with the family when they fled to Pakistan. He said he had not heard from the Applicant’s mother since in or about 2010 and had not spoken to her for a long time.
Mr Muradi also collected money to send to Pakistan and he would from time to time give money to the Applicant to do so. Mr Muradi said he collects money and sends it to Pakistan to support families. He puts money in a collection box daily and sends that money approximately every two to three months. That monthly sum was approximately $180. He did say however, that he had never sent a sum as much as $4000.00.
Mr Muradi said that the Applicant would send large sums of money particularly for someone who was sick and he recalled on one occasion a large sum of money being sent to a person who was in need of an operation. He was not surprised by the quantity of money being sent to Pakistan by the Applicant. He also said that the Applicant was working full‑time and did not have a mortgage and had the ability to save and send money, which he, Mr Muradi, did not have, because of his liability for his mortgage and supporting his family. He was not surprised however, that the Applicant from time to time collected large sums of money. He said that he would collect from every person in the community and that money would be used to help others in need in Pakistan.
Mr Muhammed Mehdi gave evidence at the hearing and was a former work colleague of the Applicant. They worked together at Murray Bridge and Inghams. He has known the Applicant for seven years but more recently he has been studying at TAFE and therefore he does not see the Applicant as often as he used to. However he sees him in their community. Mr Mehdi spoke highly of the Applicant who stood up for Mr Mehdi in a workplace conflict.
Mr Mehdi has sent money overseas on a couple of occasions to his brother and has given money to the Applicant on multiple occasions to do the same. He said the collection is in the hundreds or thousands of dollars, collected by the Applicant and sent to Pakistan.
Mr Khuda Naza Abdullahi also gave evidence and was assisted by an interpreter. He knew the Applicant’s father who had worked for Mr Abdullahi and his father. He was aware the Applicant’s father had young children, little boys and girls. He saw them when he went to their village. When the Applicant joined their community he realised who he was.
Mr Abdullahi explained the community collects money to send overseas which can be in the hundreds or thousands of dollars. Further the Applicant has collected money for that purpose and two years ago when the person in charge of collecting money was on holidays, he appointed the Applicant to be in charge of collections. They collect money for those who are in trouble and in need.
Mr Abdullahi was asked about the name Juma Khan. This was the Applicant’s father’s name. He said it was a common first name and family name but could not assist the Tribunal further about how common the name was. The family was not from his home village of Patu.
APPLICANTS SUBMISSIONS
The Applicant referred to the pain and hurt he has experienced following the cancellation of his visa and approved application for citizenship. He has sought medical treatment to deal with depression, albeit I note there was no evidence before the Tribunal about the impact the proceeding had on his health.
In relation to the Tazkira he submitted that mistakes happen. However he went to what he believed was the appropriate consulate to obtain a valid Tazkira and passport which he did. He did so, on the advice of his elder sister who went through the same procedure, and on the advice of others in the community. He was young when this occurred. He could not read or write.
He submitted he had never said that his date of birth was 1992 and that date was provided by his sister who gave her best “guestimate”. He relied on the information contained within what he believed was a valid Tazkira. He never reduced his age to achieve an outcome of being under 18 years of age. Whatever date was relied on as the correct date of birth, he was at the relevant time under 18 years of age. There was no reason to lie and reduce his age. There was no benefit to be gained.
At all times he believed his Tazkira was genuine and had he known it was a false document he would never have used it. He used his father’s Tazkira to obtain his Tazkira and passport. He had no reason to suspect it was false.
As for the person Ahmedullah Juma Khan, he submitted this is not his brother. It is a person to whom he was advised to send collection monies. If it was his brother he would have asked him to come to Australia and join the Applicant and other members of their family.
The Applicant asked the Tribunal to consider the circumstances surrounding the events relied on by the Respondent. He repeated that mistakes can happen and it is impossible to go back, but he acted honestly. His family is all in Australia. They have become Australian citizens.
RESPONDENTS SUBMISSIONS
Firstly the Respondent referred to the MRD decision. The Respondent submitted there were four matters of fact with which the Respondent does not agree. They can be summarised as follows:
(i)The Respondent does not accept that the Applicant was living in Pakistan illegally and submitted there was evidence before the Tribunal that the Applicant was a legal resident of Pakistan or a Pakistani national;
(ii)The Respondent does not accept the date of birth provided in the Tazkira and the visa application for the Orphan Relative visa was an approximation of the Applicant’s age;
(iii)The Respondent submits it was open for the Tribunal to find that the Tazkira was deliberately misleading and in particular because the Tazkira incorrectly recorded the Applicant’s grandfathers name, and the date of birth provided was a guess; and
(iv)The Respondent submits insofar as the previous Tribunal made findings of credibility with respect to the Applicant and other witnesses, there was further evidence before this Tribunal which meant that findings of credibility remained open.
The Respondent accepts that often estimates are used for dates of birth by Afghani refugees. However the Respondent submits there is a vast gap of 5 years between the original birth date of 1989 estimated by Mrs Muradi in her Spousal visa application, and the ultimate settled upon date of 1994. Although the Respondent acknowledges Mrs Muradi’s evidence that the dates may have become mixed up and her husband had in fact filled in the forms, the Respondent submits the discrepancies, especially when compared with Mrs Muradi’s own age and the ages of the other siblings, are very significant.
In the Respondent’s submission the evidence in its totality suggests the different birth dates were more than a simple mistake, and some deliberate action was taken by the Applicant and his family to ensure he would meet the requirements of the Orphan Relative visa.
The Respondent submits it is open to the Tribunal to find that if the Applicant’s birth date is in fact 1989 as originally stated, the Applicant would have been 20 years of age at the time of the visa application in 2009 and therefore ineligible for the Orphan Relative visa.
The Respondent referred to the monies sent by the Applicant to Pakistan which was collected from others and contributed to by the Applicant. Further that between March 2013 and March 2016 the total sum was over $45,000.00.
The Respondent referred to the transfer where the Applicant suggested his identity was stolen and used to send money to Pakistan. This, it was submitted, should be rejected, and was so incredulous that it calls into doubt the Applicant’s credibility.
The Respondent referred to the money transfers to Ahmedullah Juma Khan which involved large sums of money said to have been collected from the community. The amount of money sent by the Applicant was large compared with the amount of money sent by Mr Muradi for example. There was also conflicting evidence about the brother’s full name. The Applicant and Mrs Muradi confirmed the brother’s name was Ahmedullah Juma Khan whereas Mr Muradi did not know him to go by the name of Juma.
Further, in evidence in chief, the Applicant did not know the full name of the person Ahmad to whom he sent money but in cross examinations confirmed this was Ahmedullah Juma Khan.
The Respondent referred to the evidence of both Mr and Mrs Muradi in that they acknowledged the name Ahmedullah Juma Khan was the same name as the Applicant’s elder brother but that it was a common name and the person was not the brother. Their evidence, it was submitted, should be weighed against the fact that these witnesses had attended to assist the Applicant in the proceedings before the Tribunal.
The Respondent was critical of the evidence of Mr Saeidi because he gave conflicting evidence namely that he had never seen the Applicant’s father’s Tazkira which is in conflict with his statement where he claimed to recognise the father from the Tazkira photo. It was submitted no weight could be placed on his evidence.
The Respondent submitted that the evidence that Ahmedullah Juma Khan was the Applicant’s brother was strong. There was conflicting evidence about whether that brother travelled with the family from Afghanistan to Pakistan, that there was no reason to lie about sending money to the Applicant’s brother yet there was a concerted effort to conceal the fact of his true identity. That, it was submitted, evidenced the Applicant’s dishonesty and goes to the question of whether or not he is of good character.
CONCLUSION
The identity of Ahmedullah Juma Khan received much attention. However other than this being the name of the elder brother of the Applicant and that he lived in the same street as the Applicant and his family when living in Quetta, there is no other evidence that is capable of establishing to any satisfactory degree that he is in fact the elder brother of the Applicant. Indeed as the Respondent submitted in the closing address, there was no apparent reason to lie about that fact. It was not submitted that monies were being sent for any sinister or improper purpose.
The evidence from a number of witnesses was that this was a very common name and no member of the Applicants family nor the Applicant knew this person to be the elder brother. The Applicants evidence that he would have been trying to assist the person to come to Australia if he was truly his elder brother has some force.
The evidence is unable to raise this topic above the level of mere suspicion and is not capable of establishing a fact upon which the Tribunal can make a positive finding. On the available evidence I am not satisfied that the person Ahmedullah Juma Khan is the elder brother of the Applicant, nor that there was anything sinister or deceitful in sending money to him. I do not draw any adverse inference against the Applicant’s character in consequence of that evidence.
The Respondent’s criticism of Mr Saeidi is without merit. True his evidence was unclear about the Applicant’s father’s Tazkira but he did not impress me as a witness who was deliberately lying to the Tribunal and nothing turned on that evidence. I found him to be an honest witness who genuinely tried to do his best. I accept in his evidence the Applicant was active in their community by collecting money and sending it to those in Pakistan who were in need. The fact that the Applicant was able to send large sums of money was testament to his and his communities efforts to help others and the trust that the community placed in the Applicant to undertake this role.
There was no evidence which impugned the Applicant’s credit and in particular with respect to the fact that he was a genuine Afghan refugee who was living with his family in Pakistan illegally.
A question for the determination of the Tribunal is not whether the birth dates and Tazkira provided in the applications were correct and valid respectively, but whether the Applicant honestly believed the information to be true and genuine. In Re Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1086 Senior Member Sosso stated at [188]:
…The issue for a decision-maker is, at the end of the day, to assess whether an Applicant for citizenship answered the questions posed from entry to Australia up and until a Tribunal hearing honestly, even though there may be misunderstandings and inconsistencies along the way.
I accept that the Applicant was approximately 15 years of age when he obtained his Tazkira following the directions given to him by his elder sister Mrs Muradi and other members of his community. Further I accept he could not read or write at that time. There is no doubt that it was a bogus document. However I accept the Applicant when he says that he honestly and genuinely believed it to be a valid document and that he submitted it to the Department with that honest and genuine belief. In that regard no adverse finding is made against the Applicant’s character for the use of the bogus document.
The circumstances in which the Applicant’s date of birth changed in the different applications, namely the Orphan Relative visa application and the citizenship application, is not evidence from which I find his character to be impugned. I accept that the date and year of birth did not hold the level of significance in Afghanistan and there is likely to be some question about the accuracy of the date and year of birth of someone from the Applicant’s background. However I find that the Tazkira provided the best evidence of the Applicant’s birth date, namely the year of 1994. Mrs Muradi provided her best guess in those applications she was responsible for completing, and I accept her explanation with respect to the date provided on her Spousal visa application. I do not accept there was any deliberate attempt by the Applicant or his family to reduce his age. Further I find there was nothing to be gained by the Applicant reducing his birth date. The Applicant relied on his Tazkira when completing his application for citizenship. The fact that there was a two year difference from the stated date of birth on the Orphan Relative visa application (namely 1992) and the citizenship application (namely 1994) is not evidence which I find adverse to the Applicant’s character.
The Applicant has been in Australia for over seven years. Immediately upon his arrival and to date he has been gainfully employed. I also note that he has maintained a second job driving access taxis helping those in need in the community. By his employment the Applicant supported his younger siblings so that they had the benefit of gaining an education.
In ReSadiq and Minister for Immigration and Border Protection [2016] AATA 463, Deputy President McDermott stated at [26]:
I am able to consider the applicant’s contribution to society through his employment in determining whether he is of good character. In Al Hashimi and Minister for Immigration and Citizenship [2012] AATA 534 this Tribunal remarked at [53] that ‘stable, gainful employment’ would reflect favourably on an applicant’s character…
As such I have taken into account the Applicant’s gainful employment and the support of his siblings since his arrival in Australia. These are qualities that speak highly of the Applicant’s character.
The Applicant provided a letter from the Department for Communities and Social Inclusion (“DCSI”) with respect to the Applicant’s request for Child-Related Employment Screening.[18] The DCSI assessed the Applicant as “suitable for further consideration to work or volunteer with children pursuant to the Children’s Protection Regulations 2010.” I accept this goes to the Applicant’s good character and trustworthiness to work with children.
[18] Exhibit 2, ST2 page 20.
I accept the Applicant’s evidence that he would not have used the Tazkira in his application had he known it was not genuine, which demonstrates his honesty and ability to distinguish right from wrong.
The Applicant is dedicated to his community and helps with community events. He is dedicated to the collection of money to help those in need particularly in Pakistan and Afghanistan. This was confirmed by those who gave evidence. This behaviour conforms to the ethical manner and values that the Australian community expect of its society.
I am not satisfied the provision of different birth dates and a bogus document are of sufficient weight and seriousness to outweigh the Applicant’s many good qualities.
Having regard to the evidence before me I am not positively satisfied the Applicant is not of good character.
DECISION
The decision under review is set aside and remitted to the Respondent for reconsideration in accordance with the direction that the Applicant is a person of good character for the purposes of s 25(2)(b)(iii) of the Australian Citizenship Act 2007.
I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
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Administrative Assistant - Legal
Dated: 22 August 2018
Dates of hearing: 3 May 2018 & 4 May 2018 Applicant: In person Advocate for the Respondent: Holly Stanley Solicitors for the Respondent: Australian Government Solicitor
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