Muhammad and Minister for Immigration and Border Protection (Citizenship)

[2015] AATA 861

Muhammad and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 861 (11 November 2015)

Division	GENERAL DIVISION
File Number(s)	2015/2383
Re	Moin Muhammad
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Decision

Tribunal	Mr P W Taylor SC, Senior Member
Date	11 November 2015
Place	Sydney

The decision under review is affirmed.

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Mr P W Taylor SC, Senior Member

Catchwords

CITIZENSHIP – whether applicant of good character – false information in previous visa applications – false claims in previous protection visa application – previously in Australia as unlawful non-citizen – absence of persuasive evidence of subsequent good behaviour – Tribunal finds that past dishonesty was serious and sustained – decision under review affirmed

Legislation

Australian Citizenship Act 2007 s 21(2)(h)

Secondary Materials

Australian Citizenship Instructions

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

11 November 2015

1. Mr Muhammad is a 40 year old Pakistani national who has lived in Australia, as the holder of a partner visa, since August 2008.  In February 2015 he unsuccessfully applied for Australian citizenship.  A ministerial delegate refused that application, because of dissatisfaction about his contemporary good character.  The delegate’s dissatisfaction related to Mr Muhammad’s irregular conduct, between 1995 and 2002, concerning his migration status, and an absence of persuasive evidence of his intervening and contemporary good conduct.  Mr Muhammad contends this Tribunal should be satisfied he is currently of good character, and thus satisfies the relevant eligibility requirement in the Australian Citizenship Act 2007 (“ACA 2007”) s 21(2)(h).

   The good character criterion

2. A guide to the proper exercise of the various powers contained in ACA 2007 is contained in the Australian Citizenship Instructions (“ACI”).  They are part of a system of departmental instructions that provide a policy exegesis intended to inform the consistent and principled administration of ACA 2007.  ACI Chapter 5 deals generally with the topic of “citizenship by conferral” (in contrast to citizenship entitlements that may arise from birth, adoption or descent).  ACI Chapter 10 deals more specifically with the “good character” requirement in ACA 2007”) s 21(2)(h).  It sets out a judicial definition of “good character’ – taken from the judgment of Lee J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432.

3. The definitional passage in the judgment of Lee J in Irving’s case is in the following terms:

   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.

4. Drawing on that definition, ACI section 10.3.4 then provides the following exegesis:

   10.3.4  An applicant who is of good character

   Drawing from the definition outlined above, an applicant of good character would have the following characteristics. This list is not exhaustive and should be considered in conjunction with section 10.5 Framework for making ‘good character’ decisions.
   An applicant of good character would:

   ·respect and abide by the law in Australia and other countries

   ·be honest and financially responsible (for example, pay their taxes, and not be in dishonest receipt of public funds)

   ·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:

   oproviding false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications

   oinvolvement in bogus marriage

   oconcealment of convictions that could lead to the cancellation or refusal of a visa or citizenship

   oinvolvement in Centrelink or Australian Tax Office fraud

   ogiving false names and/or addresses to police

   onot be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)

   onot be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia

   onot have evaded immigration control or assisted others to do so, or been involved in the illegal movement of people

   onot have committed, been involved with or associated with war crimes, crimes against humanity and/or genocide

   onot be the subject of any extradition order or other international arrest warrant

   onot be involved in or providing assistance to, or reasonably suspected of being involved in or providing assistance to, terrorist organisations or acts of terrorism overseas or in Australia and

   onot be the subject of any verifiable information causing character doubts.

5. The “framework” in ACI section 10.5 sets out a range of considerations for decision makers to take into account in the assessment of a person’s character.  Those matters include the seriousness of the person’s established misconduct, and describe breaches of immigration laws as matters that can properly be characterised as justifying that kind of characterisation.  Other relevant aspects of the “framework” require consideration of the nature and duration of the person’s subsequent good behaviour, especially where it involves recognition of, and remorse for, past misconduct.  The assessment requires consideration of all relevant aspects of a person’s circumstances, but it is one that nevertheless, may result in lack of satisfaction of a person’s good character because of “a single adverse incident if it is of sufficient weight and seriousness”:  Prasad v Minister for Immigration and Ethnic Affairs [1994] AATA 326 at [7]. The framework acknowledges that “referee reports” can be a relevant source of information about a person’s character. But it highlights that such reports “should acknowledge … any offence or other incident and explain why the applicant is nonetheless considered to be of good character”. The “framework” encourages greater weight to be given to referee reports in the form of statutory declarations – no doubt in the expectation that reports in that form can more confidently be expected to be fully considered and properly informed.

   Mr Muhammad’s immigration history

6. The past irregularities in Mr Muhammad’s migration status relate to his arrival in Australia in 1995, and the fact that he remained here for 7 years, for a time as an unlawful non-citizen, until his voluntary departure in July 2002.  The complicated history of Mr Muhammad’s migration status, for the whole period since 1995, is outlined in the chronology of relevant events contained in the following Table.

7. It is convenient to highlight, and provide a little more detail about, the presently important aspects of the history summarised in the Table.  They involve the following propositions.

   (a)In September 1995 Mr Muhammad left Pakistan and went to Thailand.  In Thailand he made at least one Australian visa application in which he claimed to have been employed in Thailand as a carpet maker.   In late November 1995 he entered Australia from Thailand, on a short stay business visa.

   (b)Almost immediately after arriving in Australia Mr Muhammad applied for a protection visa.  In that application he disclosed that he had gone to Thailand for the real purpose of making his way “to a safe country”. 

   (c)Mr Muhammad actively pursued his protection visa claim until, at least, 21 April 1998.

   (d)In April 1998, Mr Muhammad sought ministerial intervention, based on compassionate grounds relating to the circumstances of the Australian citizen spouse he had married in June 1997.

   (e)In September 1998, following the Minister’s refusal to intervene, separation from his wife, and being granted a further bridging visa to facilitate his return to Pakistan, Mr Muhammad remained in Australia after that visa expired.  From 17 September 1998 until 7 March 2001, his status was that of an unlawful non-citizen.

   (f)In March 2001 Mr Muhammad obtained a further bridging visa, based on his interest in class action proceedings.  Those proceedings involved allegations of breach, by the Minister and the Refugee Review Tribunal, of the statutory process obligations in Migration Act 1958 ss 418(3) and 424(1), in dealing with protection visa claims: see Muin v Refugee Review Tribunal; and Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966 (190 ALR 601).

   (g)In July 2002, at a time when he was a defendant in apprehended violence order proceedings brought by his second wife’s mother in law, Mr Muhammad voluntarily returned to Pakistan. 

   (h)In September 2003 his application for a spouse visa was refused, on the “character test” grounds in Migration Act 1958 s 501(6)(c)(ii). That refusal was upheld in a 2004 decision of this Tribunal: see Muhammad v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 878.

   (i)In May 2008, notwithstanding awareness of the matters that had resulted in the 2003 / 2004 refusal of a similar application, Mr Muhammad was granted a provisional spouse visa.

   (j)In December 2011, presumably again notwithstanding awareness of his migration history, Mr Muhammad was granted a migrant spouse visa.

   The Grounds for Character dissatisfaction

8. The ministerial delegate considered that Mr Muhammad had

   (a)obtained his November 1995 Temporary Business Entry visa as a result of providing false information about his occupation and the real reason for coming to Australia

   (b)made entirely false claims in his November 1995 protection visa application, and had continued to advance those false claims in the Refugee Review Tribunal (RRT) proceedings in 1997, and in his requests for ministerial intervention in April 1997 and April 1998

   (c)worked in Australia, in breach of the conditions of the various bridging visas he held (at least after April 1997)

   (d)knowingly remained in Australia, as an unlawful non-citizen for almost three years between September 1998 and March 2001.

9. The delegate had available to him various explanatory statements Mr Muhammad had previously provided in relation to his immigration conduct.  These included

   (a)a 30 June 2002 letter Mr Muhammad had written in support of his unsuccessful spouse visa application

   (b)a handwritten record of an interview in March 2003 at the Australian High Commission Migration Office in Islamabad

   (c)an undated letter Mr Muhammad wrote in 2003, in response to a notice from the Islamabad Migration Office setting out six  grounds of character concern (including those summarised in paragraph 8 above)

   (d)a 3 July 2007 letter Mr Muhammad had written, in response to a similar concern notice from the Brisbane office of the Department.

   (e)a 19 March 2015 letter from Mr Muhammad, in response to a similar character concern notice from the Parramatta office of the Department, in connection with his citizenship application.

10. Mr Muhammad’s 19 March 2015 letter was short and unambiguous.  It contained only the following paragraph.

    Sir, I have nothing to say against the Department decision.  I accept all my mistakes and respectfully I will accept the decision you make for me.

11. Given that brief response, the delegate was unpersuaded of Mr Muhammad’s contemporary good character – notwithstanding the absence of any specific adverse circumstances that had occurred since July 2002 (Mr Muhammad’s voluntary departure from Australia).  The delegate specifically noted that Mr Muhammad had not

    (a)provided any evidence of his current standing in the community

    (b)conveyed acceptance of responsibility and remorse for his past misconduct.

12. In the present proceedings the Respondent emphasised the seriousness of Mr Muhammad’s past immigration misconduct, and broadly adopted the reasoning underlying the delegate’s decision.  The Respondent noted that this Tribunal had not been satisfied of Mr Muhammad’s good character in the 2004 proceedings.  The Respondent distinguished the possibly contrary implication that could be derived from the circumstances of the grant of Mr Muhammad’s 2008 Partner visa, on the ground that positive satisfaction of good character was not a precondition either to that visa grant or to the Migrant visa Mr Muhammad obtained in 2011.  Finally the Respondent criticised the character evidence Mr Muhammad submitted to the Tribunal, on the ground that none of the persons who provided a commendation of Mr Muhammad’s contemporary character revealed any awareness of the nature and extent of his past immigration misconduct.

    Mr Muhammad’s previous explanations

13. The proposition that Mr Muhammad has not displayed either remorse or acceptance of responsibility, for his past immigration misconduct, is a matter of impression.  In my view it is not entirely accurate.  I have formed that view for these reasons:

    (a)according to the handwritten record of the interview in March 2003 Mr Muhammad appears to have then conceded, as I think he effectively did in his November 1995 protection visa application, that he never intended to carry on business in Australia, and simply intended to get a visa and stay, to the extent that he could manage to do so

    (b)in his undated 2003 letter Mr Muhammad appears to have conceded that he should not have made a protection visa application, that he remained in Australia unlawfully (a concession that I infer relates to the period from September 1998 to March 2001), and that (prior to September 1998) he had worked in breach of his bridging visa conditions

    (c)in his 3 July 2007 letter Mr Muhammad again admitted that he had worked in breach of his visa conditions, did not dispute that his protection visa application had no proper basis, and conceded that he had been “desperate” in wanting to come to Australia

    (d)Mr Muhammad’s 19 March 2015 letter, taken at face value, involves a candid recognition of his past misconduct, and the potentially serious adverse character inferences to which it gave rise.

14. Mr Muhammad gave a further acknowledgement of his acceptance of responsibility in his 13 October 2015 letter to the Tribunal, and in his oral submissions.  He emphasised that the matters put against him occurred between 1995 and 2002 that nothing that had occurred in the intervening years was raised against him, and that “character” grounds were not relied on to refuse his application for a spouse visa in November 2005.  Finally he relied on the five contemporary character commendations he provided from some of his current friends, associates and a work colleague.

    The relevance of the 1995 Protection Visa claims

15. However, I consider that the Respondent is correct in doubting not only the real extent of Mr Muhammad’s acceptance of responsibility for his protection visa claims, but also the extent to which he recognises the impropriety they involved.  Part of the difficulty with Mr Muhammad’s position is that his expressions of regret and acceptance of responsibility most specifically relate to the circumstances in which he obtained his original business entry visa.  In relation to his protection visa application, although he appeared to accept (in his undated 2003 letter) that he should not have made that application, he later ambiguously asserted (in his 3 July 2007 letter) that he acted on advice and “did what I thought was correct”.  It is against this background that it is necessary to examine, in some detail, the content of the protection visa application and the nature and extent of Mr Muhammad’s conduct in pursuing it.

16. The basis for Mr Muhammad’s protection claim was that he would face adverse treatment at the hands of the Pakistani government because of his membership of Mohajir Quami Movement (“MQM”) – an organisation devoted to promoting the cause of the ethnic Mohajir population and opposed to the then Pakistani government.  Details of the basis for his claims were set out in 12 pages of typewritten narrative, each page of which Mr Muhammad signed.  The more specific and significant claims Mr Muhammad made in this narrative were to the effect that:

    (a)he had joined MQM in 1990 and was an “oath” member of the organisation

    (b)he had been prevented from completing his university commerce course because police arrests at the October 1994 examination venue had precluded him from sitting relevant examinations and had forced him to live “underground”

    (c)following the arrest of friends, he had surrendered to police in July 1995 and thereafter subjected to two weeks of incarceration and torture, because of his MQM membership

    (d)he had left Pakistan on a tourist visa, and carried nothing to substantiate his protection visa claims, in order to avoid the risk of being apprehended and arrested at the airport

    (e)several Police reports (First Incident Reports) had been issued against him since he left Pakistan and he feared to return because he knew that would result in his immediate arrest and torture.

17. A ministerial delegate refused Mr Muhammad’s initial protection visa application on 23 October 1996.  The delegate noted that Mr Muhammad’s claim had two distinct elements (i) alleged criminal proceedings or allegations against him, and (ii) persecution because of his membership of MQM.  The delegate took into account that that MQM had been known to be involved in the assault and murder of political opponents, as well as attacks on Pakistani security forces.

18. In relation to the alleged criminal charges, the delegate concluded that if Mr Muhammad had been involved in “politically motivated” attacks, and that was the basis of the charges against him, his apprehensions about being dealt with in Pakistan for matters of that kind, fell outside the duties and obligations imposed by Article 19 of the Refugee Convention. 

19. In relation to the MQM membership basis of Mr Muhammad’s protection visa claim, the ministerial delegate accepted that Mr Mohammed had a subjective fear of mistreatment because of his MQM membership.  But the delegate did not accept that MQM members were persecuted in Pakistan merely because of their membership or ethnicity.  The delegate doubted the credibility of Mr Muhammad’s claims relating to having lived in hiding after October 1994, and his arrest and torture in 1995.  The delegate ultimately concluded that

    (a)Mr Muhammad had left Pakistan legally, and that fact made it unlikely he was genuinely being sought by the Pakistani authorities for any criminal offences

    (b)even if Mr Muhammad’s claims in relation to criminal charges were true, they would not constitute persecution relevant to the Convention and his protection visa claim

    (c)Mr Muhammad’s claims of detention and torture in mid 1995 had been “contrived to advance his claims to refugee status in Australia”. 

1. The substance of the delegate’s decision reasoning was set out in the following passage

   I accept that it is likely that MQM activists are subject to high levels of scrutiny by the security forces as the MQM is known to be involved in violent and criminal activities, however … this would not amount to persecution even if the MQM member were not involved in the commission of criminal offences.  I also accept that there is evidence of the use of politically motivated court cases used to harass and arrest political opponents, below according to evidence in the US State Department report, these appear to be applied selectively and limited to high profile members of the Parliament, and therefore are not relevant to the applicant’s situation. I also accept that the police use mass arrests during sweep operations and that those detained may not be released until family members had paid a ransom to obtain their release, but I consider this level of adverse treatment amounts to harassment rather than persecution and relates to the general country situation rather than treatment attracted for a Convention related reason. Further, while the US State Department report demonstrates imperfection in the Pakistani legal system, I find no evidence to support the contention that MQM members would face a real chance of being falsely accused of criminal offences, nor that they would be denied the right to the protection of law in defending themselves (to the extent that such legal protection is available to all Pakistani nationals).  DFAT (CX 12818) indicates that the risk to an MQM member who had not been engaged in armed activities would not be high and if an FIR (First Incident Report) had been lodged the authorities would still have to prove it in court.”

2. Notwithstanding the finding that his claims of arrest and torture, and that he was facing outstanding charges, were characterised as contrived, Mr Muhammad continued to advance them in the subsequent review proceedings.  This is readily evident from the 3 March 1997 reasons for decision of the RRT.  The reasons record that Mr Muhammad

   (a)in a departmental interview on 11 September 1996, had repeated the substance of the claims contained in his written application

   (b)made a further written submission to the Tribunal claiming that fear of being killed, because of his MQM associations, was the only reason he left Pakistan and that he had not contrived any of his claims

   (c)made an oral submission to the Tribunal that he feared persecution if he returned to Pakistan.

3. The RRT reasons also disclose that Mr Muhammad refused to provide any more specific detailed explanation of his involvement with MQM, and his asserted arrests and torture.  But no inference can be drawn that Mr Muhammad had abandoned those claims.  On the contrary, he subsequently repeated them in his April 1997 Ministerial intervention request.

4. Mr Muhammad’s formal Ministerial intervention request was contained in a 16 April 1997 letter written by his migration agent.  Part of the letter, clearly written by the agent, sought to explain the reason why Mr Muhammad had been reluctant to provide the specific detailed information the Tribunal had requested at the March 1997 review hearing.  But the letter also contained a page of additional submissions, apparently written by Mr Muhammad himself, and certainly purportedly signed by him.  In those additional parts of the intervention request letter Mr Muhammad adhered to claims that (i) he was an MQM member, (ii) had previously been arrested and tortured, (iii) was facing false charges relating to terrorism, and (iv) feared immediate arrest if he returned to Pakistan.

5. When that Ministerial intervention request was ultimately rejected (in March 1998) Mr Muhammad retained a different migration agent and made a further request for Ministerial intervention.  That additional request has been wrongly interpreted (in the April 2015 decision under review) as evidencing Mr Muhammad’s continued pursuit of his protection visa claims.  Careful reading of the content of the 20 April 1998 letter from his new migration agent shows that it is explicitly, and exclusively, based on a claim that Mr Muhammad's continued presence in Australia was desirable because of the chronic ill health of the Australian citizen wife whom he had married on 29 June 1997.

6. However, it cannot be inferred that by April 1998 Mr Muhammad had determined either (i) to regularise his immigration status or (ii) abandon any further reliance on protection claims.  No such inference can be drawn for two main reasons.  First of all, although the conditions of his bridging visa required him to live at his wife’s address, he moved away in September 1998 – apparently as a result of a breakdown in the relationship.  He then purchased a ticket to return to Pakistan and, on the basis that he had done so, acquired a further bridging visa on 15 September 1998.  That visa effectively required him to leave Australia the following day.  But he did not use the ticket and instead remained in Australia as an unlawful non-citizen for the next two and a half years.  It may readily be inferred that he did do intentionally, and with full appreciation of the misconduct it involved. 

7. The second reason why no favourable inference can be drawn from the content of the April 1998 Ministerial intervention claim is that Mr Muhammad effectively revived his protection visa claim in March 2001.  This he did by joining the class action to which I have referred in paragraph 7(f) above.  That class action raised issues of procedural fairness and statutory due process in relation to protection visa claims.  Mr Muhammad’s conduct in joining the class action was pointless (in terms of legal merit or entitlement) if his claims of arrest, torture and outstanding criminal charges were contrived (as he now appears to concede they were).  Consequently, his participation in the class action can really only be explained as a stratagem he was willing to pursue to facilitate the apparent regularisation of his migration status.

   Inadequate evidence of contemporary good character

8. I accept that Mr Muhammad is entitled to emphasise that the misconduct established against him occurred many years ago, and that nothing adverse is put against him in relation to his conduct in the intervening years – more particularly since the unsuccessful review proceedings in 2004.  But the fact remains that his past misconduct, specifically in in relation to his pursuit of a false protection visa claim, was serious and sustained.  The details contained in his November 1995 application were lengthy and very detailed.  But it appears they were entirely false.  He has made no attempt to justify any part of them.  Nor has he provided any specific information (other than an assertion of his own desperation to remain in Australia) about how they came to be made.  Moreover, his pursuit of those claims cannot properly be confined to some aberrant behaviour in 1995.  In reality, he was willing to rely on these false claims to contrive his Australian residence for a period of years between 1995 and 1998.  He was then prepared to resort to them again, three years later in 2001, in a further contrivance.  This was a deliberate and sustained course of self-interested dishonesty.  The delegate was correct to regard it as serious misconduct.  Such conduct was incompatible with satisfaction of Mr Muhammad’s good character at the time.  It also detracts from satisfaction of Mr Muhammad’s contemporary good character, despite both the absence of specific evidence of intervening episodes of misconduct and his subjective assertions of his current good character.

9. Given the nature and extent of Mr Muhammad’s past misconduct I do not consider that it would be correct or appropriate to reach a state of positive satisfaction of his contemporary good character without the informed endorsement of community members who not only are well aware of his contemporary conduct and repute, but also the circumstances of his past misconduct.  Mr Muhammad has provided no such evidence.  Prior to the hearing he provided five testimonial commendations of the present review application.  None of these was in the form of a statutory declaration.  All of them were addressed “to whom it may concern”.  Only two conveyed any awareness that they were to be used to support Mr Muhammad’s citizenship application.  None conveyed any awareness of Mr Muhammad’s past migration misconduct.  During the hearing Mr Muhammad conceded that he had not disclosed to any of the referees the circumstances involved in his immigration misconduct between 1995 and 2001 (ie the matters to which I have referred above). 

10. After the hearing Mr Muhammad provided a supplementary commendation from one of those persons.  However this commendation, whilst it revealed the fact of Mr Muhammad’s apparently belated disclosure, was unpersuasive.  It was unpersuasive because it revealed only an awareness that Mr Muhammad “had told some untruths while filling the application forms” in 1995.  This limited information, from only one person (who described himself as having a “father and son” like relationship with Mr Muhammad) is far from persuasive evidence of an informed and reliable commendation of Mr Muhammad’s contemporary good character.

    Conclusion

11. The ultimate matter to be determined in these proceedings is whether or not I am satisfied, by the available evidence, of Mr Muhammad’s contemporary good character.  That is the relevant eligibility criterion in ACA 2007 s 21(2)(h).  In my opinion Mr Muhammad’s past dishonesty was serious and sustained.  It justifies a lack of satisfaction of his underlying good character, and that justification is not removed by either the passage of time, the absence of specific evidence of misconduct in that intervening period, or by a few condign commendations from friends and colleagues who are either unaware of, or have a questionable understanding of, the nature and extent of that misconduct.

    DECISION

12. The decision under review is affirmed.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

................................[sgd]........................................

Associate

Dated 11 November 2015

Date(s) of hearing	14 October 2015
Date final submissions received	2 November 2015
Applicant	In person
Solicitors for the Respondent	AUSTRALIAN GOVERNMENT SOLICITOR