Mohammadi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2022] AATA 4433
•22 December 2022
Mohammadi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 4433 (22 December 2022)
Division:GENERAL DIVISION
File Number: 2022/5725
Re:Sajjad Mohammadi
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Mr A. Maryniak KC, Member
Date:22 December 2022
Place:Melbourne
The Tribunal affirms the decision under review.
..................[sgd]......................................................
Mr A. Maryniak KC, Member
CATCHWORDS
CITIZENSHIP - Refusal of Australian citizenship by conferral - Whether the applicant has satisfied paragraph 21(2)(h) of Australian Citizenship Act - Whether the Applicant is of good character - enduring moral qualities - Where Applicant provided inconsistent statements - Where inconsistencies in Applicant’s evidence required clarification during the substantive hearing of the application - decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)
CASES
BOY19 v Minister for Immigration [2019] FCA 574
Dawlatshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2437
Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128
SECONDARY MATERIALS
Chapter 15 of the Revised Citizenship Procedural Instructions
REASONS FOR DECISION
Mr A. Maryniak KC, Member
22 December 2022
This is a review of a decision by a delegate of the Respondent of 24 June 2022 refusing the Applicant’s application for conferral of Australian citizenship.
The Tribunal is to determine de novo whether the Applicant is of good character pursuant to s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).
The Tribunal has considered the documentary evidence tendered during the hearing comprising Exhibits A1 to A8 and R1 to R2, together with the testimony of the Applicant, his wife and Mr Hussain, and the submissions of the parties.
BACKGROUND
The Applicant arrived in Australia in February 2010 as an unauthorised arrival without any formal identity documents. Prior to that, he had an unfortunate and challenging life in Pakistan, having fled there (aged about 8 years old) with his family some years earlier.
The Applicant has not been formally educated, commenced work from about the age of 12 and can only speak limited English, with more limited abilities in reading and writing in English. The Applicant gave his testimony mostly through an interpreter, as did his wife.
On 2 April 2010, the Applicant submitted a Form 80 – Personal particulars for character assessment[1] (Form 80) in support of a Refugee Status Assessment (RSA) stating he was married, had two sons and a daughter, and two brothers and three sisters.[2] On 16 June 2010 and 3 April 2011, it was determined that the Applicant did not meet the refugee criteria.[3]
[1] ST9.
[2] ST9, p26.
[3] ST17, pp102-3.
On 7 July 2011, the Applicant applied for a Protection (subclass 866) visa, relying upon the same family composition provided in the Form 80 submitted on 2 April 2010.[4] This was granted on 13 July 2011.[5]
[4] ST18, p134.
[5] T2, p11.
On 25 May 2012 and 30 June 2013, the Applicant applied for visas for his wife and two children, comprising one son and one daughter. In October 2013, the Applicant listed his purported second son as deceased.[6]
[6] ST21, pp182 and 185: Form 47SP.
LEGAL PRINCIPLES
The Tribunal as presently constituted has previously considered and summarised the relevant legal principles to be applied[7] and, for convenience, they are repeated in paragraphs 10 to 20 below.
[7] Dawlatshahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2437 at [4]-[14].
Pursuant to s 24(1A) of the Act, the Minister (and hence now the Tribunal) must not approve an application for Australian citizenship unless the Applicant satisfies the relevant eligibility requirement under s 21 of the Act; apropos this review, s 21(2)(h). The Tribunal must be satisfied that the Applicant is of ‘good character’ at the time of this decision by forming an “opinion requiring an evaluative judgement” and by reaching “an affirmative belief that the applicant is a person of good character”.[8]
[8] BOY19 v Minister for Immigration [2019] FCA 574 at [54]-[55] (‘BOY19’).
In determining ‘good character’ the Tribunal is to look holistically at an applicant’s behaviour over time in order to be satisfied of ‘enduring moral qualities’ within the prospective Australian citizen. Such phrase, as guided by the Citizenship Policy Instruction 15 — Assessing Good Character under the Citizenship Act (CPI 15), encompasses the following:
(a)Characteristics which have been demonstrated over a long period of time;
(b)Distinguishing right from wrong; and
(c)Behaving in an ethical manner, conforming to the rules and values of Australian society.
CPI 15 further sets out examples of characteristics of a person of good character and they do not include those who practice deception or fraud in their dealings with the Australian Government or other organisations. For example, intentionally providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications.
Section 50 of the Act provides that it is an offence to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application for Australian citizenship.
The Tribunal is to consider a range of events and conduct connected with the Applicant.[9]
[9] Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128 at [60].
O’Bryan J in BOY19, engaged in a substantial analysis of the meaning of ‘good character’ in this context. Since not defined, the Parliament intended the term to be used in a broad way:
(a)One looks to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former;
(b)It does not have a fixed and precise content;
(c)It imports a discretionary value judgement to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions; and
(d)It requires a judgment as to whether any proven deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.[10]
[10] BOY19 at [51].
O’Bryan J accepted that “[t]he subject matter, scope and purpose of the Act is informed by its Preamble which states:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) By pledging loyalty to Australia and its people;
(b) By sharing their democratic beliefs;
(c) By respecting their rights and liberties; and
(d) By upholding and obeying the laws of Australia.
These ideals of diversity, democracy and liberty are to be assessed “by moral qualities that are regarded as a necessary concomitant of Australian citizenship”[11]
[11] Ibid at [54].
As to the ‘satisfied’ requirement in s 21(2)(h) of the Act, the word:
is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities… the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite… the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion.[12]
The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context… satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character.[13]
[12] Ibid.
[13] Ibid at [55].
The decision making power is therefore to be exercised reasonably.
Part of the task is to assess the relative weight to be given to conduct that reflects positively or negatively on the Applicant’s character.[14]
[14] Ibid at [76].
Respect for the institutions of government including government departments is consistent with being of ‘good character’ in the statutory sense. Such respect can be characterised as a moral quality that is relevant to citizenship.[15]
[15] Ibid at [88].
In addition, the Tribunal has considered the discussion regarding moral absolutes and deficiencies by O’Bryan J in BOY19 at [72] as discussed below.
CONSIDERATION
The Tribunal is satisfied on the evidence that the Applicant’s parents had six children, of which he is the fourth. His brothers Eltaf and Hassan Jan are deceased, as is his sister Kobra. His remaining sisters Shah Bano and Zainab live in Iran. The Tribunal notes the inconsistency in the Applicant’s Form 80 submitted in October 2017, which listed two brothers and two sisters. Other than his brother Eltaf Hussein, the listed siblings had completely different names.[16] This, and other inconsistencies regarding details of the Applicant’s siblings, are essentially said, by the Applicant, to be administrative errors caused by those previously advising and assisting the Applicant until August 2022, when his current legal practitioners were engaged. On balance, the Tribunal accepts that these sibling related inconsistencies were not deliberately caused by the Applicant himself, and hence does not attribute weight to these inconsistencies against his character.
[16] T13, p171.
However, the substantive and long-standing inconsistencies relating to the fictitious second son ‘Ali Reza’, and the way the Applicant has dealt with them, including within the citizenship application process and the Tribunal hearing itself, cannot warrant a similar conclusion.
On 30 October 2020, the Respondent’s Department invited the Applicant to comment upon, inter alia, inconsistencies in respect of Ali Reza.[17]
[17] T20, pp260-1.
On 16 February 2021, the Applicant’s wife and two children were granted Partner (subclass 309/100) visas[18] and they arrived in Australia in about April 2021.
[18] ST49, pp401-5
On 18 August 2021, after numerous extension of time requests, the Applicant responded to the inconsistencies raised on 30 October 2020. That response included a Statutory Declaration made by the Applicant dated 1 June 2021 (the Statutory Declaration).[19] The Applicant testified that this response was withheld until his wife and two children had arrived in Australia and the Tribunal is satisfied that this was the reason for the Applicant’s delayed response to the 30 October 2020 request. The Tribunal finds accordingly.
[19] T27, p286-8.
The Applicant further testified that he originally added an individual named Ali Reza because the people smugglers and other asylum seekers advised him that he should add more children than he actually had so that he could potentially sponsor them in the future and give them a better life in Australia.[20]
[20] Ibid at p287 [26]; Exhibit A1 [15].
The Tribunal adjourned the hearing on the first day to give the Applicant an opportunity to have the interpreter translate his statement dated 4 November 2022 (‘the Statement’). The Statement was prepared by and on behalf of the Applicant for the purposes of this review application before the Tribunal. Save for a date regarding a bomb incident, he confirmed with the Tribunal that its contents were true and correct. Importantly, in the Statement, the Applicant says that his friend Safdar had died in a bomb blast leaving behind his son Ali Reza. The Applicant notes further that he always felt sad for Ali Reza, that his dad had died before he was able to meet with him. Hence, there and in testimony in chief, the Applicant said that was the reason he initially gave the name Ali Reza to the Department.
There is nothing in the Statement which even suggests that the conflicting reasons for selecting the name Ali Reza in the earlier Statutory Declaration, as discussed in paragraph 30, are incorrect. It is simply not dealt with. Nor was it dealt with during the Applicant’s examination in chief.
Prior to asking the Applicant about the conflict in his evidence in the Statutory Declaration, the Tribunal asked the interpreter to translate the contents of paragraphs 25 to 33 of the Statutory Declaration to the Applicant. The Applicant subsequently confirmed with the Tribunal that the content of those paragraphs was true and correct, including where he declares that he ‘didn’t have any particular relative or child in mind that I hoped to bring to Australia in the future so I randomly chose the name Ali Reza’[21] (Further, in re-examination he stated that he understood ‘randomly’ to mean “not real, just make it up”). He further declared in the Statutory Declaration that ‘I made another serious error of judgement and instead of disclosing to the Department that Ali Reza wasn’t a real person, I chose to tell the Department that he was deceased’.[22]
[21] T27, p287 [27].
[22] Ibid [29].
The Tribunal put the difference in reasons, between the Applicant’s earlier Statutory Declaration and the Statement, for selecting the name Ali Reza to the Applicant; and after some questioning he retreated from his testimony and stated that such earlier reasons were not correct.
The end result is that the Tribunal was left with conflicting evidence from the Applicant which was only addressed during the first day of the hearing, after questioning from the Tribunal. In those circumstances, on balance, it is not possible for the Tribunal to be satisfied of the Applicant’s enduring moral qualities.[23] The reality is that attempts to clarify and resolve the competing reasons as to why the Applicant chose the name Ali Reza (compare the Statutory Declaration to the Statement and the Applicant’s testimony) have only been made as recently as during the hearing before the Tribunal, and essentially only after encouragement from the Tribunal.
[23] See also CPI 15; s 50 of the Act.
In opening, in response to questions from the Tribunal, it was put on behalf of the Applicant that he had finally corrected the record, insofar as previous false statements were concerned, on 1 June 2021 by the Statutory Declaration. There is some tension in that submission, which is the result of the Statement[24] which in part is in conflict with the particular content of the Statutory Declaration discussed above, as was the Applicant’s testimony in this respect.
[24] Exhibit A1.
In closing, the Ali Reza issue seemed to be put in the alternative by the Applicant’s Counsel. However, that detracts from the continuing importance and obligation the Applicant has been under, both in dealing with the Department and this Tribunal, to not make false statements. Because they are in conflict, both reasons cannot be true. The Tribunal also notes the Respondent’s submission highlighting the Applicant’s testimony that, despite feeling sad for Ali Reza in around 2010, the Applicant has never made any attempt since then, either directly or through his wife or another intermediary, to attempt to enquire about the welfare of Ali Reza.
Upon considering the Applicant’s most recent attempts to be truthful, both through the Statement and his testimony in chief, the Tribunal cannot be satisfied that he has been completely honest at any time until 4 November 2022 at the earliest. Even then, the evidentiary conflict in his Statutory Declaration declared 1 June 2021 was only addressed during the hearing, after questioning by the Tribunal.
Against this, the Tribunal has to balance the fact that the Applicant otherwise presents as being of good character. He has been otherwise law abiding, has been generally honest and financially responsible, dutifully providing for his wife and two children and paying his taxes. The Tribunal also notes the character references given in favour of the Applicant.
As discussed above, the Tribunal is to look holistically at the Applicant’s conduct and character and, inter alia, make a judgement as to whether any proven deficiencies in the moral qualities of the Applicant are sufficient to deny the person citizenship. The Tribunal understands and accepts the compelling motivation behind the initial lie introducing Ali Reza as a purported son and the subsequent lie that he was deceased, and therefore finds that such lies should be considered to have a lower moral deficiency.[25] However, such motivation cannot be said to cloak the further inconsistencies in the Applicant’s evidence regarding Ali Reza post-April 2022, after his wife and two children had arrived in Australia.
[25] BOY19 at [72].
The conflict in the Applicant’s evidence regarding whether Ali Reza was a randomly selected name or the son of a long dead friend was only resolved, if at all, during the hearing before the Tribunal. In applying the legal principles as summarised above, on balance, the Tribunal is not satisfied that the Applicant has demonstrated the requisite ‘enduring moral qualities’ required for the conferral of Australian citizenship.
This finding against the Applicant should not dissuade him from re-applying for Australian citizenship in the future. The Tribunal notes that the Applicant is continuing to make significant contributions to the Australian community through his admirable work and family life; and such efforts, should they continue, may be looked upon favourably in any future application for Australian citizenship the Applicant may be advised to make.
By reason of the matters set out above, the correct or preferable decision is to affirm the decision under review.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member
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Associate
Dated: 22 December 2022
Dates of hearing: 8 and 9 December 2022 Counsel for the Applicant: Mr Gregory Hughan Solicitors for the Applicant: AUM Lawyers Pty Ltd Advocate for the Respondent: Mr Matthew Daly Solicitors for the Respondent: Mills Oakley Lawyers
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