Mohammadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 1179
•7 May 2021
Mohammadi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1179 (7 May 2021)
Division:General Division
File Number: 2020/5386
Re: Khadim Hussain Mohammadi
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date: 7 May 2021
Place: Melbourne
The reviewable decision that the Applicant does not satisfy section 21(2)(h) of the Australian Citizenship Act 2007 is affirmed
.....[sgd].................................................................
Senior Member D. J. Morris
Catchwords
CITIZENSHIP – citizenship by conferral – whether applicant of good character – inaccurate advice about composition of family – factors to take into account –– obligation to provide information that is complete, truthful and correct – satisfaction must be contemporary assessment, not when application lodged – opportunities to correct inaccurate information not taken – person may subsequently satisfy good character provision – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 33, 33A, 37, 38AA
Australian Citizenship Act 2007, ss 21, 24Migration Act 1958, s 501
Cases
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2)(1979) 2 ALD 634
Fenn and Minister for Immigration and Multicultural Affairs, Re [2000] AATA 931
Glass v Minister for Immigration and Border Protection [2015] FCAFC 44 128Lachmaiya and Department of Immigration and Ethnic Affairs, Re [1994] AATA 27
Secondary Materials
Australian Citizenship Policy Statement, Department of Home Affairs, dated 27 November 2020
Citizenship Procedural Instructions, Department of Immigration and Border Protection, reissued 26 February 2021
REASONS FOR DECISION
Senior Member D. J. Morris
7 May 2021
Mr Khadim Hussain Mohammadi (‘the Applicant’) applied for Australian citizenship by conferral under section 21 of the Australian Citizenship Act 2007 (‘the Act’) on 14 May 2015.
On 27 August 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) refused the Applicant’s application because the delegate was not satisfied that the Applicant was of ‘good character’ under section 21(2)(h) of the Act.
On 4 September 2020, the Applicant lodged an application for review of the delegate’s decision by this Tribunal.
HEARING
A hearing was held on 12 April 2021 by videoconference, as permitted under section 33A of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’). The Applicant was represented by Mr Bilal Amani of Amani Lawyers. The Respondent was represented by Ms Shauna Roeger of The Australian Government Solicitor. The Applicant gave evidence and was cross-examined. A witness called by the Applicant, Mr Mohammed Juma Mohammadi, also gave evidence. The Tribunal appreciates the assistance of an interpreter in the Dari language.
The Tribunal admitted into evidence documents lodged by the Respondent on 12 December 2020 under section 37 of the AAT Act (T-documents) (Exhibit R1), and supplementary (STD -documents) lodged by the Respondent under section 38AA of the AAT Act (Exhibit R2).
The Tribunal also admitted into evidence a statutory declaration of the Applicant, declared on 9 November 2020 (Exhibit A1).
The Applicant submitted a written Statement of Facts, Issues and Contentions on 6 November 2020, and the Respondent submitted a Statement of Facts, Issues and Contentions on 5 February 2021. Both were also taken into account.
MIGRATION BACKGROUND OF THE APPLICANT
The papers before the Tribunal show that the Applicant is a citizen of the Islamic Republic of Afghanistan (TD, p 156), and is aged 49 (TD, p 380). He arrived in Australia on 23 February 2010 as what is termed an illegal maritime arrival (TD, p 277). On 13 April 2011, he was granted a Protection (Class XA) subclass 866 visa (TD, p 324). The Applicant currently holds a Resident Return (subclass 155) visa, granted to him on 4 April 2017 (TD, p 454).
The legislative framework for acquisition and conferral of Australian citizenship is in the Act and regulations made under that Act. Specifically, subdivision B of that Act deals with Australian Citizenship by conferral. It was accepted by the Respondent that the Applicant satisfied subsection 21(2)(a) and (b) of the Act, in that he was aged 18 or over at the time of his application and a permanent resident.
It was also accepted by the Respondent that the Applicant satisfied the general residence requirement in section 21(2)(c) of the Act. The delegate did not assess section 21(2A) of the Act (the citizenship test requirement) nor section 21(2)(g) of the Act, which relates to whether the person is likely to reside in Australia. This was because the delegate was not satisfied under section 21(2)(h) of the Act that the Applicant was of good character.
The Australian Citizenship Policy Statement (‘Policy Statement’) was published by the Department of Home Affairs (‘the Department’) on 27 November 2020 and includes the Citizenship Procedural Instructions (‘CPIs’). These were in the T-documents (TD, p 79-109 and STD, pp 601-610). These two documents provide guidance to officers of the Department making decisions as delegates of the Minister. The Tribunal further notes that, although the CPIs were reissued on 26 February 2021, an earlier 2019 version was in the T-documents. In these reasons, the Tribunal, under section 33(1)(c) of the AAT Act has regard to the most recent CPIs.
Brennan J (as President of this Tribunal) in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 concluded that decision-makers undertaking merits review should generally apply ministerial policy, unless the policy was unlawful or there were cogent reasons to the contrary. The Tribunal therefore takes account of these documents in this consideration, but also notes that neither the Policy Statement nor the CPIs are legislative instruments, and if there is any conflict between their contents and the provisions of the Act, the latter prevails.
Noting, on the material from the Department before me that would, on the face of it, show that the Applicant did satisfy those of the other requirements of citizenship which were assessed when he applied, the Tribunal considered this matter on the basis of whether the Applicant is of good character at the time of the decision. At the commencement of the hearing, both Mr Amani and Ms Roeger agreed that this was the point at issue. In making this assessment, the Tribunal notes that the assessment of whether a person meets the requirement of section 21(2)(h) of the Act is a contemporary exercise. A person may not have been of good character at the time a delegate makes a decision in relation to the person, but that assessment may change in the light of additional or new information. If the Tribunal is satisfied that the Applicant is of good character, the matter would be remitted to the Minister with a decision that the provisions of subsection 21(2)(h) are satisfied, so that the Minister may then consider any other legislative requirements set down by the Act.
THE LEGISLATIVE FRAMEWORK
Section 21(2) of the Act provides that a person may make an application to the Minister to become an Australian citizen by conferral. Where such an application is made, section 24 of the Act provides that the Minister must approve, or refuse to approve, the person becoming an Australian citizen. Relevantly, unlike the facility which was available under the old citizenship legislation the current Act replaced, the Minister may not defer approval or refusal pending some event happening or information being provided; he must make a decision to approve or refuse.
There are eligibility requirements in the Act, including that the person applying for citizenship must be aged over 18 and must be a permanent resident (section 21(2)(b) of the Act). As mentioned, above, the Applicant satisfied certain requirements, but consideration of his application came to a halt when the delegate decided he was not of good character, which is a mandatory requirement for citizenship by conferral.
THE APPLICANT’S OPENING SUBMISSION
Mr Amani submitted to the Tribunal that the Applicant has been living in the Australian community for a number of years, has not been involved in any criminal matters, has no traffic infringements (including no driver licence demerit points), has been in paid employment, and worked as a volunteer.
Mr Amani said the issue before the Tribunal is about disclosure. He said the Applicant is uneducated and speaks limited English. He said the Applicant is remorseful and apologetic for the errors in the forms he has submitted and has attested that he had indeed mentioned his brother, but that the brother’s name may have been misspelt or mis-recorded.
THE RESPONDENT’S OPENING SUBMISSION
Ms Roeger reiterated that the issue is whether the Applicant is of good character. She said the delegate of the Minister was not satisfied that the good character requirement is met and contended that the Tribunal should look to the enduring moral qualities of the Applicant in examining the multiple examples of incorrect material provided to the Department over a length period of time, and only corrected when prompted by correspondence from the Department.
The Respondent submitted in written submissions, that there is no suggestion that any part of the Act other than section 21(2) is relevant. Section 21(2)(h) of the Act states
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(h) is of good character at the time of the Minister’s decision on the application.
The term ‘good’ character is not defined in the Act. The Full Court of the Federal Court of Australia held in Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128 (Perram, Yates and Mortimer JJ), at [60] that, in contrast to the legislative stipulations in, for instance, section 501 of the Migration Act 1958, the term ‘good character’ in the Australian Citizenship Act is intended by the Parliament to be used in a broad way, encompassing a wide array of events and conduct in connexion with a person.
The CPIs state, at paragraph 3.3:
3.3. What is good character?
The term ‘good character is not defined in the Act. The Federal Court (FC) and the Administrative Appeals Tribunal (the AAT) have used the ordinary meaning of the words, and made reference to dictionary definitions. Most cases have adopted the definition from the Full FC judgment in Irving v Minister for Immigration, Local Government and Ethnic Affairs ((1996) 68 FCR 22; at 431-432):
Unless the terms of the Act and regulations require some other meaning to be applied, the words ‘good character’ should be taken to be used in the 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 phrase ‘enduring moral qualities’ encompasses the following concepts:
·Characteristics which have endured over a long period of time;
·Distinguishing right from wrong; and
·Behaving in an ethical manner, conforming to the rules and values of Australian society.
A good character requirement necessitates consideration of an applicant viewed in a holistic way, that is, all aspects of his/her life may be relevant to consideration of character.
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 the time the applicant held a visa, and during the time their citizenship application was lodged and processed.
Given the significance of the grant of Australian citizenship, the assessment of the applicant’s character is an important component in the Minister’s decision to approve or refuse the applicant’s citizenship application.
Later on, the CPIs relevantly state:
6. Assessing good character under the Act
The citizenship character assessment is informed by the applicant’s conduct prior to applying for a visa and during their time in Australia. It is an assessment of all the available information, including any information provided in the visa application process and while the applicant has been a visa holder in Australia and during the processing of the citizenship application.
Under paragraph 11 – Factors that may be taken into account when assessing good character, part of the CPIs state, under paragraph 11.1 General conduct:
How has the applicant behaved in their interaction with government officials?
The Australian community expects that persons in Australia will abide by Australian laws. This includes providing correct information when seeking a government benefit or service.
It is relevant to consider whether the applicant has been honest in dealings with the Department. Decision-makers should consider all of the applicant’s interactions with the Department, including visa and citizenship applications…
…
If the applicant has knowingly presented incorrect information or a bogus document, this may reflect on the person’s character. If the applicant presents the incorrect information or bogus document unknowingly, there would be no ground for character concern.
Issue: the composition of the Applicant’s family
In a biodata interview conducted by the Department on Christmas Island on 23 February 2010, the day of the Applicant’s unauthorised maritime arrival, the Applicant submitted in respect to his siblings that he had a 45 year old brother called Jomae, who was missing; a 16 year old brother called Sahusean in Afghanistan; a 12 year old brother called Ead Mohamad in Afghanistan; and a 12 year old brother called Mohamad, also in Afghanistan.
On 14 March 2010, the Applicant underwent an entry interview and stated that his siblings, their ages and locations were as follows (TD, p 133):
·Joma Mohammadi – 45 – missing in 2008;
·Shah Hussain Mohammadi – 16 – Afghanistan;
·Eid Mohamad Mohammadi – 14 – Afghanistan; and
·Mohamad Mohammadi – 12 – Afghanistan.
In the entry interview conducted on 14 March 2010 (TD, p 133), the Applicant described his father as Qader Mohammedi, and stated he died in 2003 of natural causes, and named his mother as Zaineb Rezaie, who he said was aged between 60 and 62 years and living in Afghanistan. He then listed his brothers and sisters as follows:
·Joma Mohammadi – male - 45 – missing – 2008;
·Shah Hussain Mohammadi – male – 16 – Afghanistan;
·Eid Mohammad Mohammadi – male – 14 – Afghanistan;
·Mohammad Mohammadi – male – 12 – Afghanistan; and
·Agila Eshaq – mother-in-law – female – 65 – Afghanistan
And then listed two nephews ‘from Brother who is missing’, as:
·Jawid Mohammadi – male – 12 – Afghanistan; and
·Anef – male – 16 – Afghanistan.
In his statutory declaration connected to an application for a Refugee Status Assessment (TD, p 153) in April 2010, the Applicant stated that:
My brother was taken by the Taliban four years ago, along with his wife and daughter and we have not heard from him since this time.
In an Independent Merits Panel interview conducted in Darwin on 19 October 2010 (TD, p 278), the record states:
The Panel spoke to the applicant about his family. He said he has three brothers and one sister. He repeated his claim that four years ago, unknown persons abducted one of his brothers and he has still not been found.
In a Departmental form (Form 80 – Personal Particulars for Character Assessment) dated 23 April 2010, completed as part of his Refugee Status Assessment, and in another form (Form 866B – Persons included in this application and family composition), completed in relation to his application for a protection visa almost a year later, on 8 April 2011, the Applicant listed his siblings, their dates of birth and current location as follows:
·Tahira Mohammady – 31 December 1993 – Afghanistan
·Shah Hussain Mohammady – 31 December 1994 – Afghanistan
·Eid Mohammad Mohammady – 31 December 1996 – Afghanistan
·Mohammad Mohammady – 31 December 1998 – Afghanistan
·Manjuman Mohammady – 31 December 1970 – Taken by Taliban
In a Form 1399 - Declaration of Service completed on 8 June 2017 (TD, p 413) and a Form 80 – Personal Particulars for Character Assessment, dated 9 July 2017 (TD, p 436), the Applicant states his siblings, their dates of birth and their locations as:
·Shah Hussain Mohammady – Iran – 31 December 1994
·Eid Mohammad Mohammady – Unknown – 1 January 1996
·Mohammad Mohammady – Afghanistan – 31 December 1998
·Mamiuma* Mohammady – Afghanistan – 31 December 1970
·Tahira Mohammady – Afghanistan – 31 December 1993.
*it is possibly rendered as ‘Manjuma’; the document is hard to make out.
On 5 June 2020, the Department sent an email letter to the Applicant inviting him to comment on adverse information (TD, p 451). The Department queried the differing declarations of family members but then queried why the Applicant had not declared close relatives residing in Australia on his citizenship application, and that he had resided at two residences in the same street in the suburb of Dandenong, Melbourne, with a Mr Mohammad Juma Mohammadi. The Department officer asked how the Applicant knows Mr Juma Mohammadi and why he had not disclosed him. At that stage of the consideration of the application, the Department officer said he was not satisfied of the Applicant’s identity or that he satisfied the good character requirement.
The Applicant responded through his legal representatives, in a letter dated 22 June 2020 stated (TD, pp 464-465):
It is alleged that our client has attempted to mislead the Department during the course of his protection visa and citizenship application. The issue in question relates to our client not disclosing his brother Mohammad Juma Mohammadi. Our client instructs that he had sought the assistance of a person to complete his protection visa and citizenship application. He advised that the person completed the form on his behalf and he had provided the information to the person without the aid of an interpreter and signed the form without reading them. He stated he did not blame that person for the mistake but himself for not understanding the significance of the documents. He instructs that his English is not good, and therefore he had misunderstood questions. Our client accepts that Mohammad Juma Mohammadi is his step-brother and that our client had failed to include him in his forms.
On 27 August 2020, the delegate of the Minister refused the application for Australian citizenship. In the decision record (TD, p 7) the delegate stated that he was satisfied that the Applicant was Khadim Hussain Mohammadi, born on a specified date in 1972 in Jaghori, Afghanistan, but found that the Applicant did not satisfy the good character requirement.
Applicant’s November 2020 statutory declaration
In his statutory declaration dated 9 November 2020 (Exhibit A1), the Applicant declared that:
Mohammad Juma Mohammadi is my step-brother.
Tahira is my biological sister.
I am extremely remorseful and sorry and apologize in relation to the inconsistencies in my family composition. I am an uneducated person who cannot read or write in English or my native language Dari. I sought assistance with my protection visa and citizenship forms and did not thoroughly review them before signing. I will take greater care with official forms in the future.
The Applicant also said that he did disclose Mohammad Juma Mohammadi throughout his interactions, but sometimes the name was misspelt. He says that the person referred to as ‘Manjuman’ is actually Mr Mohammad Juma Mohammadi, but he was not sure why it was written incorrectly.
In regard to the fact that he did not disclose his sister, Tahira, in his first biodata interview and the subsequent interview around three weeks later, the Applicant said
I had just arrived to Australia on boat for 13 days and nights and I was fully exhausted mentally and physically. As a result, I had forgotten to disclose Tahira. However, I did disclose Tahira by 8 April 2011 when I had settled. There was no reason for me not to disclose Tahira.
ORAL EVIDENCE OF THE APPLICANT
The Applicant said that he had lived with his stepbrother for the last two or three months and named him as Juma Mohammadi. He said he was released from the Immigration Detention Centre (‘IDC’) in 2011 and has been in the community since that time.
The Applicant confirmed that he is a permanent resident of Australia. In respect of other family members in Australia, the Applicant said, “More than one year ago the family of my brother arrived in Australia”. In answer to a direct question from the Tribunal, he confirmed that he had no other family members in Australia, apart from his brother.
The Applicant said he was married, and he and his wife have four children, all of whom are in Afghanistan. He said he has sponsored them to come to Australia and lodged a form for what he called ‘state-sponsored’ passage, but told the Tribunal that he understood that the law changed so he then launched private sponsorship to pay money for them to come here in 2015.
Mr Amani asked the Applicant if he knew why his family had not been granted visas. The Applicant said: “I was told that you have to get Australian citizenship first and after that you can apply to bring your family here, because the law has changed”.
The Applicant said he had not seen his children for a long time, since around 2009 when he began his journey to Australia. Mr Amani asked the Applicant if there was any reason why he had not gone to see them since he became a permanent resident in 2011, and the Applicant responded, “there is danger”.
The Applicant confirmed that he worked as a tiler and works five, sometimes six days a week, depending on the projects he was working on.
Mr Amani said that the Department alleged the Applicant failed to disclose Juma and asked the Applicant what his response was; to which the Applicant said: “I didn’t do anything wrong. Someone else filling in the forms made a mistake with the spelling. I cannot write or read”.
Mr Amani put to the Applicant that he failed to disclose both Juma and Tahira. The Applicant said that when he was in the IDC he forgot and did not mention his sister. He said: “I did disclose Juma. I don’t accept that I didn’t”. Under cross-examination by Ms Roeger, the Applicant confirmed that his father’s name was Qader Basksh Mohammadi and his mother’s name was Zainab Razaie.
When asked the names of his brothers and sisters, including stepbrothers and stepsisters, the Applicant listed: Juma Mohammadi, stepbrother; Ead, Tahira, Shah, and Mohammad, a total of five.
When asked specifically how he is related to Juma Mohammadi, the Applicant said that he was his stepbrother, they shared a father but different mothers. He said, “I don’t know the name of his mother, I haven’t asked”.
The Applicant confirmed he had been living with Juma Mohammadi for the last two or three months because he had sold his house and agreed that he and Juma Mohammadi had in the past shared accommodation at two houses in the same street in Dandenong.
When asked about where his other brothers and his sister are living, the Applicant said: “I don’t know. I’m not informed about them. They may have fled to Iran and may be living there. After arriving in Australia, I am not aware where they have gone”.
The Applicant said he remembered the interview with Department officers when he first arrived and that he had a Hazaragi interpreter at the interview. He agreed that he told Department officers that his brother Juma was missing and that he thought he had been taken by the Taliban. The Applicant confirmed that he told officers that he had adopted the two nephews of his missing brother.
When asked why he did not declare his only sister, Tahira, in either the February or March interviews, the Applicant responded: “at that time I was travelling for two days and nights and was totally exhausted and confused”. He agreed he had remembered all his other siblings and parents but not his sister.
Ms Roeger referred the Applicant to a statutory declaration dated 23 April 2010, which he agreed was prepared with the assistance of a lawyer. In the document, the Applicant relevantly declared (TD, p 153)
My brother was taken by the Taliban four years ago, along with his wife and daughter and we have not heard from since this time….
Ms Roeger asked which brother he was referring to, and the Applicant said he meant Juma.
The Applicant was then taken to an attachment to a Form 80 – Personal particulars for character assessment (TD, p 182) which referred to a brother called ‘Manjuman Mohammady’ and said he was ‘Taken by Taliban’. Ms Roeger noted that the interpreter had endorsed the document in Dari script. The Applicant responded, “In my local pronunciation, it is the same as Juma”.
The Applicant said Juma’s full name is Mohammed Juma Mohammadi and that Manjuman, Jamae and Juma are all the same in local pronunciation. He agreed that he might have said the name Manjuman to the person helping fill out the form, because it was the local pronunciation.
Ms Roeger then took the Applicant to his application for Australian citizenship (TD, p 328) and he agreed he had signed the form on 20 April 2015 (TD, p 337). He said because he could not write, he had been assisted by a friend, who was an acquaintance but not a migration agent. He said that while the friend spoke Dari, this friend did not read the form back to him after filling it in on his behalf, “I just signed it. Didn’t even keep a copy”.
The Applicant agreed that the Department wrote to him requesting further information (TD, p 403) on 5 July 2017, a little over two years after he had lodged his citizenship application, and that he completed further forms.
The form states (TD, p 406) that the Applicant’s brother Shah is in Iran, which the Applicant confirmed, and that the location of another brother, Eid, is unknown. He confirmed that two other brothers, listed as Mohammad and Manjuma, were in Afghanistan, as was his sister Tahira, and said “After that, they have left Afghanistan. Tahira got married”.
Mr Mohammad Juma Mohammadi had, by this time (2017) arrived in Australia and Ms Roeger asked the Applicant why he had not properly declared him on the form. He responded: “At that time, I apologise. I forgot. Maybe he has forgotten to write it correctly. I gave him the previous forms”.
Ms Roeger reminded the Applicant that in previous forms he had stated that his brothers Shah and Eid were both in Afghanistan. The Applicant replied that he had later contacted the family and received information they were in Iran, but he did not inform the Department until filling in this form.
The Applicant was asked directly by the Tribunal whether the person who filled in this form in 2017 is the same person who filled in the original citizenship application form in 2015, but the Applicant said he could not remember whether it was or not.
Ms Roeger asked the Applicant whether he had given the person filling in the forms for him any information verbally. The Applicant responded: “No. I just gave him the forms and he was copying from that”. He said he simply signed the form when it was completed.
Ms Roeger asked the Applicant whether he was aware that, in signing the form he was declaring it was true information. He replied: “I asked him if he had put everything correctly, then I signed it”. He confirmed that the friend who was helping him speaks Dari.
The Respondent’s lawyer asked the Applicant how the person filling in the form got new information, and he said he gave the person a copy of the interview he had at the IDC and he was copying from there.
In answer to a direct question from the Tribunal as to how the person knew that the Applicant’s brother, Shah, was in Iran, the Applicant replied: “Maybe he asked me where my brother was. I can’t exactly recall which questions he asked me”.
The Applicant said that the same person who helped him with the Form 80 signed on 9 July 2017 (TD, p 420) helped him with the previous form, signed on 8 June 2017 (TD, p 413). In this form, the Applicant declared his four children but did not list his two nephews adopted sons and the Applicant confirmed this was because Juma was now in Australia. He agreed that the form still stated that ‘Manjuma’ was missing in Afghanistan and said: “I did not intentionally ignore the law; it was copied from the previous form. I don’t remember saying…I apologise for the mistake”.
Ms Roeger asked the Applicant why, in response to the question as to whether he had any personal contacts in Australia, he ticked the box ‘No’, but the Applicant said he could not remember.
The Tribunal directly pressed the Applicant on this point, and he said: “Because maybe I was asked and I said ‘No’ because a stepbrother cannot be included, and I accept that was a mistake. I apologise for that mistake”.
When asked whether he intentionally did not include Juma because he was his stepbrother, the Applicant responded, “Yes.”
The Tribunal had before it, in the supplementary T-documents, Mr Juma Mohammadi’s United Nations High Commissioner for Refugees (‘UNHCR’) Resettlement Registration Form (STD, p 487), where Mr Juma Mohammadi states that he has two half-siblings from his father’s second marriage, named as Mohammad Ali and Razia. The Applicant said “They might be his brother and sister from the second wife. My father got married twice”.
Ms Roeger asked the Applicant why Mr Juma Mohammadi would not include, in his refugee claims, that he had been taken by the Taliban in 2006 or 2008, and he responded: “Whatever he said is up to him. I was thinking he was taken. I don’t know what he said”.
The Applicant was asked why Mr Juma Mohammadi would declare him as a friend, not a sibling or half-sibling in Australia, or a family member. The Applicant said: “Because in Australia they mention stepbrother as a friend, not as a brother. If they are in Australia, they would be called friends”.
The Tribunal then asked the Applicant whether he omitted Tahira in his family composition in February 2010 because of the stress of the sea passage, which the Applicant agreed. He was then asked why she was still omitted when he was interviewed some weeks later, in March 2010. The Applicant replied: “I don’t recall whether I did or not. I arrived at the IDC. I was totally confused for six months. I didn’t know what was going on”.
ORAL EVIDENCE OF MR JUMA MOHAMMADI
Mr Juma Mohammadi gave evidence. He said he was aged ‘48’, lives in the suburb of Doveton and is employed as a tiler. He said that he lives with his wife and four children and that the Applicant had lived with the family for the last three months or so.
When asked how he is related to the Applicant, Mr Juma Mohammadi said that he was his stepbrother and his only family member in Australia apart from his wife and children.
The witness said he had arrived in Australia in May 2014 from Indonesia, having come here through the UNHCR refugee programme. He said he sponsored his wife and children to come to Australia, and they arrived towards the end of November 2020.
The witness said he did not know the Applicant was in Australia but when he was in Indonesia he found out. He said friends who were living in the same accommodation called him and gave him the Applicant’s address and contact number. When he arrived in Australia, he went to the address, and they were reunited.
Under cross-examination, Mr Juma Mohammadi said that his father was Qadar Baksh, and he had two half-siblings, a brother named Mohammed Ali and a sister named Razia. He said their father is the same, but the mother is different.
The witness said that his mother’s name was Durdana, and the mother of his half-siblings, his father’s second wife, is Zainab.
When asked whether Zainab is the mother of the Applicant, Mr Juma Mohammadi responded: “She is the mother of Razia and Mohammed Ali. His mother could also be Zainab; it is a common name”.
The witness said that he left Afghanistan around 2013 and made claims to the UNHCR when he arrived in Indonesia. When asked by Ms Roeger whether he made a claim at the time that he had been taken by the Taliban, Mr Juma Mohammadi replied: “No, I didn’t say that”.
The witness agreed that he was working as a bookkeeper at a school and, because of the threat of the Taliban locally, he had fled. He said he had been threatened by the Taliban in around 2012, or early 2013, but he could not recall the precise date.
Mr Juma Mohammadi was taken to STD, p 503 where the UNHCR interviewer wrote:
Resettlement
The PRS [i.e. Principal Resettlement Applicant] mentioned that he does not have any close family members in the third country. However, he reported to have a friend called Khadeem Hussain Mohamadi in Australia. His phone number is [redacted]. They worked together in Iran.
When asked by Ms Roeger why he had described Mr Khadum Mohammadi, the Applicant, as a ‘friend’, the witness responded: “the reason is because it is not common here to say step-brother, so I put him as a friend. I apologise”.
Ms Roeger asked the witness why he had listed other stepsiblings, and he responded: “I apologise for that”.
The witness was taken to his Form 80, prepared in relation to his own citizenship application where (STD, p 594) he listed Mohammad Ali Mohammadi as his stepbrother and Razia Mohammadi as his stepsister, but did not list the Applicant. He responded: “That’s my mistake. I apologise for that. It was not intentional”.
CONSIDERATION
It is important to be clear that the Tribunal is considering something very specific. In essence, whether the provision of incorrect information by the Applicant in relation to his visa and citizenship applications amounts to a finding that a decision-maker cannot be satisfied that the Applicant is of good character.
Mr Amani made submissions to the Tribunal that there are no Court outcomes in relation to the Applicant, nor any driving convictions, and this was not contested by the Respondent. I note that the Applicant consented to the Department obtaining relevant information from VicRoads, and the Respondent made no submission of any adverse material about the Applicant’s driving history.
Mr Amani also told the Tribunal that the Applicant has worked full-time as a tiler since relatively early after his release from immigration detention on the grant of a protection visa. The Tribunal had before it a letter from the Applicant’s accountant dated 15 June 2020 (TD, p 466) and a 12 June 2020 letter from a construction site manager where the Applicant had worked for a subcontractor (TD, p 467). The Tribunal also had before it a letter from the Imam Hussain Association of Victoria dated 11 June 2020 (TD, p 468), which attested, respectively, to the Applicant fulfilling his income declaration obligations to the Australian Taxation Office, being a diligent and hard worker and undertaking voluntary work.
It would seem to the Tribunal that, on the evidence, in the time he has been in the Australian community since 2011, the Applicant has been law-abiding, has been in employment, and has contributed to the national economy through his taxes and work productivity. All of this is to his credit.
What is unclear to me is the inconsistency in information supplied to the Department in relation to the Applicant’s sister, Tahira, and in relation to Mr Mohammad Juma Mohammadi.
The Tribunal has consistently taken the approach that truthfulness is an essential element in the immigration process. In ReLachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 2, Deputy President McMahon stated, at [35]:
The observance of truth in dealing with officials and migration matters (particularly when the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercises in Visa applications... Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.
Australian citizenship is the endpoint in a legal non-citizen’s migration journey, so it is logical that the principle enunciated by Deputy President McMahon also applies when permanent residents are applying for citizenship. As I have said in previous decisions, the Australian people hold a reasonable expectation that a non-citizen will obey Australia’s laws and tell the truth to immigration officials.
The matter before the Tribunal is not cut and dried. There is evidence which points to good character traits of the Applicant, such as him being generally law-abiding in the community, working, paying his taxes and having no other adverse information apparent to his name.
The Applicant is, in his own description, illiterate, in that he says that he is unable to read either Dari or English. It may be accepted that he asked another person or persons to fill in forms for him in relation to his application for citizenship. His evidence that he gave this other person or persons documents relating to his earlier visa applications and other relevant material, such as the interview record when he was first in the IDC, having arrived in Australia.
The initial omission of the Applicant’s sister
The Tribunal is prepared to accept that a person might inadvertently omit the name of one of his siblings on the day the person lands in Australia, particularly after they have been on the high seas in a small vessel, which was the manner of the Applicant’s first arrival at Christmas Island in 2011. However, having accepted that, it is at least surprising that he also failed to include Tahira’s name when he had a further interview some three weeks later, with the assistance of an interpreter. She is his only sister, after all, and he was able to remember the name of his three other brothers, and the stepbrother who is recorded as Manjuman. By itself, I do not consider the initial omission of his sister Tahira some eleven years ago, corrected 10 years ago, would be enough, with the other aspects of the Applicant’s life in Australia, to found a conclusion by the Tribunal that he does not satisfy the good character requirement.
The person described as a stepbrother
The Tribunal is prepared to accept the Applicant’s evidence that Juma is an alternative, or local diminutive form, of the name Manjuman. The Tribunal is also prepared to accept that the Applicant has a half-brother of this name who he believed had been taken by the Taliban, noting that he says he was in Iran at the time and this is a story he had been told by other family members second-hand. However, this is where the material as presented to the Tribunal begins to become cloudy.
If for a moment the Tribunal accepts that the witness who gave evidence at the hearing, Mr Juma Mohammadi, is, as the witness said, the ‘stepbrother’ (i.e. half-brother) of the Applicant, there remain several unanswered questions.
Mr Juma Mohammadi’s family history
Mr Juma Mohammadi told the UNHCR that he was born in 1960. He was adamant in his evidence to this hearing that he has never been taken by the Taliban, although he said that he had been threatened by them when working as a bookkeeper at the local school, and was prevented from travelling on certain routes. I take from his evidence that he considered the situation was getting dangerous, which is why he fled the area. Mr Juma Mohammadi names his father as Qadir Bakhsh Mohammadi, the same name as the father of the Applicant, and states he is deceased. He said his mother was named Dordana, and that she is deceased (STD, pp 519 and 571).
Mr Juma Mohammadi says that his father, Qadir Bakhsh Mohammadi, married a second time and had one daughter, Razia (born 1998), and one son, Mohammad Ali (born 2000) (SGD, p 594). His father’s second wife was named as Zainab. Mr Juma Mohammadi told the UNHCR that his late father’s second wife Zainab died in 2012. Later, he explicitly wrote, about his father’s second wife Zainab (SGD, p 555):
Stepmother – her name was Zainab. Her birth [date] was 1.1.1953. She deceased in 1.1.2011, place of her birth in Shoghla, Jaghori, Ghazni, Afghanistan – deceased due to natural causes in Afgh.
Mr Juma Mohammadi, when interviewed in Indonesia by the UNHCR, said that he had a friend in Australia, and gave the name of the friend as ‘Khadeem Hussain Mohamadi’ (SGD, p 503), and a telephone number. He said that he knew the Applicant from when they had worked together in Iran. When asked about this at the hearing, the witness told the Tribunal that he used the word ‘friend’ because the term ‘stepbrother’ was not understood.
The Applicant’s evidence is that he has a stepbrother named Manjuman. He told Department of Home Affairs (‘Department’) officers his stepbrother had been taken by the Taliban. He said that Manjuman’s father and his father were the same man, Qadir Bakhsh Mohammadi. He gave the birth year of Manjuman as 1970. He said that his father had married twice.
Consideration of relationship between Applicant and witness
I am not at all convinced that the witness Mr Juma Mohammadi is the half-brother of the Applicant. It would seem to me that, in spite of the age he gave at the beginning of his evidence, that the birth year of Mr Juma Mohammadi of 1960, which he not only gave to the UNHCR but also included in other documents, including his own application for citizenship (STD, p 563) would accord with his appearance. I note that the witness wrote (SGD, p 534) that he attended school from 1967 to 1973, leaving in the sixth grade. This would also broadly accord with him being born in 1960. While I might accept that the Applicant might have written, or told someone else to write, ‘1970’ as the birth year of his stepbrother, that does not explain the other discrepancies.
The witness Mr Juma Mohammadi was clear that his late father had married twice and said that both his mother and his father’s second wife are deceased. The Applicant also said his late father married twice, then claimed that Mr Juma Mohammadi was the son of his father’s first wife, and that the Applicant’s own widowed mother was alive and living in Afghanistan.
I do not accept the evidence of the witness that he used the word ‘friend’ to describe his relationship with the Applicant because the term ‘stepbrother’ would not be understood. He seemed quite able to list his half-brother and half-sister, making clear they were the children of his father’s second marriage, in official forms, which makes it curious that he would not also include the Applicant – and, for that matter, the other siblings of the Applicant – as his half-brothers and half-sister. There was no evidence presented to the Tribunal that Qadir Baksh Mohammadi had married more than twice. It is clear on the evidence that the witness wrote the term ‘step-sibling’ to describe the children of his father of his father’s second marriage.
I consider that the evidence Mr Juma Mohammadi gave about his family background was generally credible and consistent with other material before the Tribunal. I note the UNHCR remarked that he was fluent and logical in the life story he told them when interviewed in Indonesia. An exception to my conclusion about his credibility is the explanation to his hearing as to why he described the Applicant as a ‘friend’, not as a half-brother or stepbrother. I note he continued to describe the Applicant as his ‘friend’ in his 2018 citizenship application (SGD, p 541). However, I make clear that Mr Juma Mohammadi’s character or conduct is not before the Tribunal and is not relevant to the question as to whether the Applicant satisfies section 21(2)(h) of the Act.
I am led to the conclusion that the evidence before me points away from the Applicant and Mr Juma Mohammadi being half-brothers. It is much more likely that they are friends who worked together in Iran, as indeed Mr Juma Mohammadi told the UNHCR in September 2013.
What is unclear to me is why, if this is so, would the Applicant make the claim that Mr Juma Mohammadi is his half-brother. I do not see that there is any advantage to him, nor indeed to anyone else, in making such a claim.
I note that the Applicant seems to be under a misapprehension that he needs to be an Australian citizen to sponsor his family to come to Australia. The Tribunal does not believe that to be the case, but accepts that permanent residents may not propose family members to come to Australia with the result they would immediately receive permanent resident visas; they must be privately sponsored which, as he said in his evidence, is a significant expense.
The Applicant made several expressions of remorse, as did his solicitor on his behalf, at the hearing. He also said that he had not asked persons helping him with forms to read back the contents to ensure their accuracy before he signed them and submitted them to the Department. He initially told the Tribunal that all he did was to give his helper relevant documents and let him copy them into the citizenship application form, but then, when asked how it could be that some of the information changed, such as the location of two of his brothers, said that he might have told him, but could not remember.
The obligation to provide complete, truthful and correct information
The form to be completed when applying for Australian citizenship includes, at Part L - Declaration (TD, p 339) a declaration that an applicant must sign. The declaration relevantly states:
WARNING: It is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances relating to an application.
Please read the following carefully before signing.
Complete this declaration if you are the main applicant and are aged 18 years or over.
…
I declare that the information I have supplied in this form is complete, truthful and correct in every detail.
(Underlining added.)
The Applicant signed this declaration on 20 April 2015. After careful consideration, I cannot conclude that the information the Applicant supplied in his Australian citizenship application was complete, truthful and correct. I do not place great weight on the Applicant’s initial failure to mention his sister in his visa application documents in 2010, because he did correct that, although it took about a year to do so. Some allowance must be fairly given to the circumstances of the Applicant’s arrival in the migration zone, fleeing from a strife-torn and unsettled country.
But it is significantly disturbing to me that the Applicant has provided information that is both incomplete and not correct in every detail to the Australian Government. That is a consideration in assessing good character to which the CPIs draw a decision-maker’s attention. I do not believe it is a sufficient explanation to say that the Applicant is illiterate and that he is remorseful. On his own evidence he asked someone who was fluent in Dari to complete the forms. He could have asked that person to read back to him what information had been supplied in the form. I do not accept - because some of the details were changed or updated – his evidence that this person simply copied in material from earlier documents given to him by the Applicant, because some of the details were changed or updated. I note that, having said it was simply copied in from earlier documents, the Applicant then said that his friend may have asked questions, but he could not remember.
The Tribunal might extend some tolerance to a person who does not have English as a first language and who might have submitted wrong or incomplete information early in their time in Australia, where that wrong or incomplete information has since been rectified. But the difficulty the Applicant faces in my consideration of this matter is that he was given the opportunity by the Department to provide further information in 2017, two years after he applied for citizenship, and still provided information that was apparently false. I say ‘apparently’, because of my scepticism that Mr Juma Mohammadi is not, in fact, the half-brother of the Applicant.
So, on the one hand the information provided by the Applicant was not truthful or correct on the Applicant’s own evidence; because in 2017 the Applicant was saying to the Department that the person who gave evidence in this hearing was his ‘step brother’ (by which I take him to mean half-brother) and was still in Afghanistan, when in fact Mr Juma Mohammadi had been in Australia since 2014 and, for periods, sharing a house with the Applicant.
In the alternative, if Mr Juma Mohammadi is not, in fact, a relative of the Applicant but in point of fact his friend and former workmate, then the Applicant has provided misleading information to the Department and in his statutory declaration of November 2020 about his relationship to that person.
All of this combined affects my confidence in being satisfied that the Applicant is of good character, particularly because, either way, information has been provided to the Department in 2017 that is not correct.
Ms Roeger submitted in her closing submissions that the Applicant has been at least reckless regarding the accuracy of information he has given to the Department.
Finding regarding satisfaction of good character
This is not a usual case. Often before the Tribunal the question of character revolves around the non-disclosure of previous offending or other conduct that has come to the notice of the Courts. There is no evidence before me that Mr Khadim Mohammadi has committed any infractions of the law in Australia. There is, as I have said earlier, objective evidence of his good employment history and general good conduct in the community. A finding that a decision-maker cannot be satisfied that a person is of ‘good character’ hinges on the circumstances and the totality of their conduct. It is wrong to conveniently equate such a finding to a conclusion that the person subject to the finding is inherently a bad individual. It is an evaluative judgment and the formation of an opinion (see O’Bryan J in BOY19 v Minister for Immigration and BorderProtection [2019] FCA 574, at [93]).
In this case it must be considered whether the person applying for citizenship met the standards of honesty and candour that are to be expected in formal dealings with government. The conferral of Australian citizenship is not something done lightly. It carries with it a substantial range of privileges and responsibilities. An Australian citizen can: vote; stand for elective office; serve on a jury; be employed in the public service; and be issued with an Australian passport and thereby entitled to the consular protection of the Commonwealth of Australia overseas. Australian citizenship by conferral is, in short, not only the ultimate step on the migration journey, it is also a signal to other sovereign nations of the status of a person. Accordingly, meeting the requirements in the Act, including satisfaction as to good character, must achieve a degree of seriousness commensurate with the conferral.
As mentioned earlier, a finding as to whether a citizenship applicant satisfies the good character requirement is a contemporary finding, as of the date of this decision, not to be assessed with reference to the date of the person’s application. However, because of the temporal proximity of the incomplete information provided to the Department and the reference in the paragraph 6 of the CPIs to the conduct of a person ‘during the processing of the citizenship application’, I find that I am not positively satisfied that the Applicant is of good character. He has provided information in his application in 2015 and in the subsequent response after a request for additional clarification in 2017 that is not complete, truthful or correct. He is personally responsible for the documents he has signed, and the declarations he has made as to the veracity of the information he has supplied therein. It is not a sufficient excuse to say that someone else helped, and that he failed to check back the information provided before signing the declaration and submitting the forms to the Department.
To avoid doubt, nothing in the foregoing should be taken to displace the delegate’s finding of satisfaction of the Applicant’s identity, a finding with which I agree. However, the Tribunal finds, as a result of the incorrect information provided, that it cannot be satisfied that the Applicant is of good character in the terms of section 21(2)(h) of the Act.
CONCLUSION
I accept that this outcome will be disappointing for the Applicant and noted his frank evidence that a significant reason for him making the citizenship application is so he is in a better position to sponsor his wife and children to come to Australia.
As Deputy President Breen stated in Re:Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 391, at [8]:
“…refusal did not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again…”
The Applicant may be able to satisfy the requirement in the Act after a period of time has passed. I cannot specify what that period of time would be, but would expect, provided that, in any new application he makes, he supplies completely truthful and complete information, given that, on the evidence before me, there is no reason in this particular case to question any of his other conduct in Australia, a fresh application may satisfy the good character requirement.
In any such fresh application, the Applicant needs to take particular care to provide information to the Department that is complete, truthful and correct in every detail, as the declaration states. The Applicant would also then have to meet the other stipulations in the Act, including the citizenship test requirement.
DECISION
The reviewable decision, that the Applicant does not satisfy section 21(2)(h) of the Australian Citizenship Act 2007, is affirmed.
I certify that the preceding 127 (one hundred and twenty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
...[sgd].....................................................................
Associate
Dated: 7 May 2021
Date of hearing: 12 April 2021 Applicant: By video Advocate for the Applicant: Mr Bilal Amani
Solicitors for the Applicant: Amani Lawyers Advocate for the Respondent:
Solicitors for the Respondent
Ms Shauna Roeger
Australian Government Solicitor
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