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

Case [2020] AATA 1969

KSHD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1969 (19 June 2020)

Division:GENERAL DIVISION

File Number(s):      2019/0060

Re:KSHD  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:19 June 2020

Place:Adelaide

Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Applicant satisfies the identity criteria set out in s 24(3) of the Australian Citizenship Act 2007 and that the Applicant is of good character pursuant to s 21(3)(f) of the Australian Citizenship Act 2007.

................................[Sgnd]....................................

Senior Member B J Illingworth

CATCHWORDS

CITIZENSHIP – application for Australian citizenship by conferral – application for citizenship refused – whether Tribunal is satisfied as to identity – fraudulent documents – whether Tribunal is satisfied Applicant is of good character – decision under review set aside and remitted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Ahamod and Minister for Immigration and Border Protection [2019] AATA 7

Beyan and Minister for Immigration and Citizenship [2015] AATA 256
Briginshaw v Briginshaw [1938] HCA 34
Confidential the Minister for Immigration and Citizenship [2013] AATA 144.
Dhayakpa and Minister for Immigration and Border Protection [2015] AATA 310
Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 93
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255.

SECONDARY MATERIALS

Attorney-General’s Department, National Identity Proofing Guidelines, 2016

Australian Citizenship Policy (2016) (Cth)
Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 (Cth)

REASONS FOR DECISION

Senior Member B J Illingworth

19 June 2020

INTRODUCTION

  1. KSHD ("the Applicant") has applied for a review of the decision of a delegate of the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ("the Respondent"), dated 8 December 2018, refusing his application for Australian Citizenship by conferral because he did not satisfy ss 24(3) and 21(3)(f) of the Australian Citizenship Act 2007 (“the Act”).

  2. At the hearing before the Tribunal, the Applicant appeared in person and was represented by Ms Alyce Boemia of Beena Rezaee Legal & Migration. Mr William Evans, Australian Government Solicitor, appeared on behalf of the Respondent. The Tribunal was also assisted by an interpreter in the Hazaragi language.

    BACKGROUND

  3. The Applicant is a citizen of Afghanistan. He is currently aged 50 years.

  4. The Applicant arrived in Australia on 1 February 2010 as an irregular maritime arrival and was later granted a Protection (Class XA) visa on 10 November 2010.[1]

    [1] Exhibit A, T2/8.

  5. On 20 May 2011, the Applicant sponsored his wife and five children for an Offshore Humanitarian (Class XB) visa, which was refused.[2] The Applicant's wife and five children are now awaiting the decision…

Continue reading KSHD and Minister for Immigration, Citizenship, Migrant Serv...

Sign in free to access the full text

Details
AGLC
KSHD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1969
Case
[2020] AATA 1969
Decision Date

CaseChat Overview and Summary

This matter concerned an application for Australian citizenship by conferral made by an Afghan national. The applicant's application had been refused by the delegate on the grounds that the delegate was not satisfied as to the applicant's identity and that the applicant was not of good character. The refusal was based, in part, on the finding that two documents provided by the applicant were fraudulent, and on the belief that the applicant's son was a former member of the Pakistan Army, which cast doubt on the applicant's claims of being an Afghan refugee. The applicant sought a review of this decision before the Tribunal.

The Tribunal was required to determine two primary issues: first, whether it could be satisfied of the applicant's identity pursuant to section 24(3) of the Australian Citizenship Act 2007, and second, whether it could be satisfied that the applicant was a person of good character for the purposes of section 21(3)(f) of the Act. The legislative framework stipulated that the Minister must be satisfied of a person's identity before approving their application for citizenship, and that the applicant must be of good character.

The Tribunal considered evidence including statutory declarations from the applicant, oral evidence from the applicant and two witnesses, and character references. The applicant explained his hasty departure from Afghanistan due to persecution by the Taliban and his subsequent resettlement in Pakistan as a refugee, stating he could not return to obtain original documents. He also provided an explanation regarding his son's involvement in wushu for the Pakistan Army, asserting it was common for Afghan refugees to compete in sports for Pakistan and that his son was not a member of the army. Regarding the fraudulent documents, the applicant stated he was unaware they were fraudulent at the time of submission, having obtained them from the Afghan Consulate. He presented newly obtained, verified taskeras for his family, which had facilitated the acquisition of machine-readable passports. The Tribunal was ultimately satisfied as to the applicant's identity and his good character.

Consequently, the Tribunal set aside the delegate's decision and remitted the matter for reconsideration, finding that the applicant met the identity criteria under section 24(3) and the good character requirements under section 21(3)(f) of the Australian Citizenship Act 2007.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the hearing before the Tribunal, the Applicant appeared in person and was represented by Ms Alyce Boemia of Beena Rezaee Legal & Migration. Mr William Evans, Australian Government Solicitor, appeared on behalf of the Respondent. The Tribunal was also assisted by an interpreter in the Hazaragi language.BACKGROUND The Applicant is a citizen of Afghanistan. He is currently aged 50 years. The Applicant arrived in Australia on 1 February 2010 as an irregular maritime arrival and was later granted a Protection (Class XA) visa on 10 November 2010.[1][1] Exhibit A, T2/8. On 20 May 2011, the Applicant sponsored his wife and five children for an Offshore Humanitarian (Class XB) visa, which was refused.[2] The Applicant's wife and five children are now awaiting the decision to grant a Partner (Subclass 309) visa.[3][2] Exhibit B, T35/348.[3] Ibid T36/419. On 10 December 2014, the Applicant lodged an application for Australian citizenship by conferral on the basis of permanent or enduring physical or mental incapacity under s 21(3) of the Act.[4] The Applicant, through his solicitor, provided supporting documentation in accordance with the Department's requests. [4] Exhibit A, T5/88. On 8 December 2018, the Applicant's application was refused on the basis that the delegate was not satisfied that he was of good character under s 21(3)(f) of the Act and was not satisfied of his identity pursuant to s 24(3) of the Act.[5] In particular, the delegate concluded that two taskeras provided by the Applicant and sent for verification were found to be fraudulent. Further, because the delegate decided that the Applicant's son, SKH, was a former member of the Pakistan Army, it was unlikely that SKH and consequently the Applicant and his family were Afghan refugees residing illegally in Pakistan.[5] Ibid T2/8-17. On 7 January 2019, Applicant applied to this Tribunal for a review of the delegate's decision.[6][6] Ibid T1/1-7.ISSUES TO BE DETERMINED BY THE TRIBUNAL The issues to be determined by the Tribunal are:(a)whether the Tribunal can be satisfied of the Applicant's identity pursuant to s 24(3) of the Act; and(b)whether the Tribunal can be satisfied that the Applicant is a person of good character pursuant to s 21(3)(f) of the Act.LEGISLATIVE FRAMEWORKIdentity Requirement Section 24(3) of the Act provides:The Minister must not approve the person becoming an Australian citizen unless the Minister is satisfied of the identity of the person. The Supplementary Explanatory Memorandum, Australian Citizenship Bill 2005 states:There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen. Further, Chapter 13 of the Australian Citizenship Policy (“the Policy”) of June 2016 provides that: Overview of the identity provisionsThe identity provisions prohibit the approval of a citizenship applicant in cases where the decision maker (the Minister or their delegate) is not satisfied of the person's identity. In addition to being a legislative requirement under the Act, the Australian community expects that decision makers will not approve a person for citizenship or give evidence of citizenship if they are not satisfied of the person's identity.

Evidence

Evidence Before The Court

The Applicant gave oral evidence at the hearing. He also called two witnesses to give oral evidence, namely, Mr SH and Mr SN. Their statutory declarations were also received into evidence. Several other character references were also received. The Applicant’s Evidence The Applicant provided the Respondent with two statutory declarations dated 23 February 2016[14] and 12 January 2018,[15] which were provided to the Tribunal and which I will now summarise.[14] Ibid T13/136.[15] Ibid T23/196-198.Statutory Declaration dated 23 February 2016 The Applicant said he was a permanent resident of Australia and was granted refugee protection after fleeing his home country of Afghanistan. When he fled Afghanistan, he did not take his taskera with him. He declared that he was in immediate danger and had to flee in haste. He said he had been beaten and arrested by the Taliban. He was being taken to prison but when the arresting party became involved in a roadside skirmish, he was able to escape. He then hid in the mountains and subsequently returned at night to his village, gathered his family and fled. They did not take any belongings or documents and did not tell other members of the village. They walked through the mountains where they were picked up by a vehicle and taken to the Pakistan border. There, with the assistance of people smugglers, they were taken to Quetta in Pakistan. The Applicant declared he could not return to Afghanistan to acquire another taskera. That trip was impossible and too dangerous. He is a Hazara man and fundamentalists in Afghanistan persecute and kill Hazaras. Further, he has a Subclass 866 visa, which does not permit him to travel to Afghanistan. The Applicant does not have a current Pakistan police clearance. When he visits Pakistan, he attends the police station in Quetta where he registers his presence in Pakistan. Prior to his departure he would return to the police station where he was issued a Pakistan police clearance, which is then taken by immigration officials at the airport upon his departure. Statutory Declaration dated 12 January 2018 This statutory declaration was prepared in response to an adverse letter from the Respondent regarding the Applicant’s citizenship application. The Applicant declared that he was born in Shashpar, Jaghori, Afghanistan in December 1968, and is a citizen of Afghanistan. He is a Hazara of Shia Muslim faith. He declared that he fled Afghanistan with his wife and five children in 2009 and resettled in Pakistan as a refugee. He left Pakistan in 2010 to come to Australia with the intention of sponsoring his family to join him for a better life and to avoid deportation back to Afghanistan. The Applicant rejected the allegations of the Respondent with respect his son, SKH, being a member of the Pakistan Army. He declared that his son played the sport of wushu, which is a martial arts discipline. The club that his son attended approached him and asked him to compete in wushu for the Pakistan Army, which is common practice in Pakistan. He declared that many Afghan refugees in Pakistan compete, or have competed, at national level in the sport of wushu for the Pakistan Army. He declared that his son both competed in and coached wushu. He referred to evidence from his son’s wushu clubs confirming that fact.

Decision

Reasons for decision

The Tribunal is satisfied as to the Applicant’s identity as referred to in his application and that he is of good character for the purposes of the eligibility criteria to become an Australian citizen. DECISION Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter for reconsideration on the basis that the Applicant satisfies the identity criteria set out in s 24(3) of the Australian Citizenship Act 2007 and that the Applicant is of good character pursuant to s 21(3)(f) of the Australian Citizenship Act 2007.

Ratio Decidendi

Legal Principle Established

The Applicant does not have a current Pakistan police clearance. When he visits Pakistan, he attends the police station in Quetta where he registers his presence in Pakistan. Prior to his departure he would return to the police station where he was issued a Pakistan police clearance, which is then taken by immigration officials at the airport upon his departure. Statutory Declaration dated 12 January 2018 This statutory declaration was prepared in response to an adverse letter from the Respondent regarding the Applicant’s citizenship application. The Applicant declared that he was born in Shashpar, Jaghori, Afghanistan in December 1968, and is a citizen of Afghanistan. He is a Hazara of Shia Muslim faith. He declared that he fled Afghanistan with his wife and five children in 2009 and resettled in Pakistan as a refugee. He left Pakistan in 2010 to come to Australia with the intention of sponsoring his family to join him for a better life and to avoid deportation back to Afghanistan. The Applicant rejected the allegations of the Respondent with respect his son, SKH, being a member of the Pakistan Army. He declared that his son played the sport of wushu, which is a martial arts discipline. The club that his son attended approached him and asked him to compete in wushu for the Pakistan Army, which is common practice in Pakistan. He declared that many Afghan refugees in Pakistan compete, or have competed, at national level in the sport of wushu for the Pakistan Army. He declared that his son both competed in and coached wushu. He referred to evidence from his son’s wushu clubs confirming that fact. SKH ceased competing in wushu approximately one year earlier when he was attacked and injured during a home invasion. He could not go to a Pakistan Army hospital because he was a civilian. He was taken to a hospital in Quetta. The Applicant also provided an example of an Afghan refugee who competed for Pakistan in karate. She is shown in internet photographs in a Pakistan uniform with medals around her neck. The Applicant declared he was worried for the safety of his family. As for the bogus taskeras provided by the Applicant to the Department, he said that he did not know at the time they were submitted that they were bogus. He believed the taskeras were registered with the Ministry of Interior Affairs in Afghanistan because they were obtained from the Consulate of Islamic Republic of Afghanistan in Quetta. Each taskera had a different registration number on them. The Applicant’s family has now obtained verified and attested taskeras from the Directorate of Population. These taskeras have been attested by the Ministry of Justice and Foreign Affairs. The Applicant declared that based on those taskeras, his family members have also acquired MRZ [machine readable zone] passports. The Applicant further declared that on each occasion that he has visited Pakistan, he was first required to obtain a visa and entered and exited Pakistan as a foreigner, which supports the submission that he is not a citizen of Pakistan. The Applicant also declared that his father’s taskera had been located which also evidences his Afghan citizenship and heritage.