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

[2021] AATA 4357

Muzafari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 4357 (18 November 2021)

Division:GENERAL DIVISION

File Number:          2020/7564

Re:Ghulam Sakhi Muzafari

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

REASONS FOR DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date of Decision:                   18 November 2021

Date of Written Reasons:      24 November 2021

Place:Melbourne

Pursuant to a decision made on 18 November 2021, the Tribunal affirmed the decision under review. These are the written reasons for that decision.

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

Senior Member A. Nikolic AM CSC

CATCHWORDS

CITIZENSHIP – application for conferral of Australian citizenship – whether the Tribunal is satisfied of the Applicant’s good character – Australian Citizenship Act 2007 (Cth) - Applicant provided false information and counterfeit licence to Department – maintained false information for over a decade – Tribunal not satisfied Applicant is of good character – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007 (Cth)

CASES

Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Negri v Secretary, Department of Social Services [2016] FCA 879
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326

Zheng v Minister for Immigration and Citizenship [2011] AATA 304

SECONDARY MATERIALS

Department of Immigration and Border Protection, Australian Citizenship Policy Statement (27 November 2020)
Refugee, Citizenship and Multicultural Programs Division, Department of Home Affairs, Revised Citizenship Procedural Instructions (26 February 2021)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

24 November 2021

INTRODUCTION

1. The Applicant seeks review of a decision by a delegate of the Respondent, refusing his application for citizenship on character grounds under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).

2. The hearing was held on 17 and 18 November 2021. The Applicant was represented by Ms Maria Psihogios, a solicitor from MP Migration Law. The Respondent was represented by Ms Subasha Prasad, a solicitor with Minter Ellison.

3. The hearing of this matter was concluded relatively quickly on 17 November 2021. After a 24-hour adjournment the Tribunal gave ex tempore reasons. On 19 November 2021, the Applicant requested written reasons. These are now provided, consistent with the requirements of section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AATA) and Federal Court authority that states:

   ...As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).[1]

   [1] Negri v Secretary, Department of Social Services [2016] FCA 879, [27] (Bromberg J).

   BACKGROUND

4. The Applicant is 49 years old and has lived in Australia for about 12 years.[2] He is a permanent resident who holds a Resident Return (subclass BB 155) visa.[3]

   [2] Exhibit R1, 26-27.

   [3] Ibid 15.

5. The Applicant first completed a Form 80: Personal particulars for assessment (Form 80) in early 2010. He confirmed in oral evidence that an interpreter assisted him in completing this form.[4]

   [4] Exhibit R2, 1-12.

6. The Applicant’s citizenship application was lodged in June 2014.[5] His communication with the Respondent over the next six years is summarised as follows:

   (a)On 24 September 2016, the Respondent wrote to the Applicant requesting further information.[6] The Applicant responded in November 2016 by providing another Form 80,[7] copies of several overseas documents, and others issued in Australia;[8]

   (b)On 28 October 2019, the Respondent wrote to the Applicant requesting further information about his family composition, travel to other countries, and original copies of documents;[9]

   (c)On 18 December 2019, the Respondent wrote to the Applicant requesting further original documents and confirmation of previously provided information.[10] On 11 January 2020, the Applicant responded to this request;[11]

   (d)On 20 February 2020, the Respondent requested further information from the Applicant,[12] to which the Applicant responded the following day;[13]

   (e)On 25 February 2020, the Respondent requested further information regarding the documents previously provided by the Applicant.[14] The Applicant attended an office of the Respondent on 5 March 2020 to provide original copies of several documents.[15] On the same day, the Respondent emailed him requesting further information about how he obtained a driver’s licence from his country of origin,[16] to which the Applicant responded by return email on the same day;

   (f)On 31 March 2020, the Respondent advised the Applicant that documents he submitted from his country of origin were forensically examined. It was noted some results were inconclusive, but the driver’s licence was ‘counterfeit’[17] and would be seized.[18] A Departmental official noted the Applicant’s comment when submitting the licence that it may not be genuine;[19]

   (g)On 4 August 2020, a delegate of the Respondent wrote to the Applicant inviting him to comment on adverse information giving rise to character concerns.[20] The Applicant responded on 31 August 2020 with a statutory declaration through his lawyer.[21] He sought to rectify past incorrect information, claiming mistakes were made because of his illiteracy, inability to speak English, and reliance on others to complete forms.[22] He conceded that he accepted the advice of others to provide false information, to avoid ‘problems’ arising from his relatives in Australia being identified.[23] The Applicant nevertheless claimed to be of good character and provided letters of support, evidence of tax paid, a contract for a house purchase in 2015, and other translated documents; and

   (h)On 10 November 2020, a delegate of the Minister refused the Applicant’s citizenship application.[24]

   [5] Exhibit R1, 26-35.

   [6] Ibid 74-77.

   [7] Ibid 36-50.

   [8] Ibid 55-73; 78-85.

   [9] Ibid 290-293.

   [10] Exhibit R2, 13-16.

   [11] Exhibit R1, 294-324.

   [12] Ibid 325-326.

   [13] Ibid 327.

   [14] Ibid 330-331.

   [15] Ibid 334-335; 340.

   [16] Ibid 341.

   [17] Ibid 344.

   [18] Ibid 351-354.

   [19] Ibid 350.

   [20] Ibid 355-366.

   [21] Ibid 367-378.

   [22] Ibid 370.

   [23] Ibid 373.

   [24] Ibid 11-25.

7. On 17 November 2020, the Applicant asked the Tribunal to review the refusal decision.[25]

   [25] Ibid 1-9.

   LEGISLATIVE FRAMEWORK

8. Section 25(1)(a) of the AATA and s 52(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 24 of the Act.

9. Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. To be eligible, a person must satisfy each of the eight general eligibility requirements under s 21(2) of the Act. This includes the requirement to be ‘of good character at the time of the Minister's decision on the application’.[26]  Pursuant to s 24(1A) of the Act, the Minister or their delegate must not approve the application unless satisfied the person is of good character, the importance of which was outlined in Fenn[27]:

   The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home… The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts.  It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community.

   [26] The Act, s 21(2)(h).

   [27] Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 (Fenn).

   Citizenship Policy Statement and Revised Citizenship Procedural Instructions

10. The term ‘good character’ is not defined in the Act. The Full Court of the Australian Federal Court considers it should be broadly construed:

    …Parliament clearly intended the term to be used in a broad way, and refrained from taking the approach adopted in the Migration Act of giving specific content to a character criterion…[28]

    [28] Grass v Minister for Immigration and Border Protection [2015] FCAFC 44, [60] (Grass).

11. The Australian Citizenship Policy Statement (Policy) (issued on 27 November 2020) and the Revised Citizenship Procedural Instructions (CPIs) (reissued on 26 February 2021) provide guidance for decision-makers exercising power under the Act. Although Departmental policy is not binding on the Tribunal, it is open for decision-makers undertaking merits review to apply it unless it is unlawful or ‘there are cogent reasons to the contrary’.[29] The Tribunal has not identified any reason why the Policy and CPIs supplementing it should not be applied to this case.

    [29] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

12. Relevant to this application is Citizenship Procedural Instruction 15-Assessing Good Character under the Citizenship Act (CPI 15). While CPI 15 provides the following guidance as to the meaning of the term ‘good character’, drawing upon the judgment of the Full Federal Court in Irving:[30]

    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…

    [30] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at 431-432.

13. CPI 15 elaborates on the meaning of the term ‘enduring moral qualities’:

    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.

    The 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.

14. CPI 15 also sets out a non-exhaustive list of characteristics generally expected of a person of good character, including that ‘as a general proposition, a person who is of good character would’:

    ·not practise deception or fraud in dealings with the Australian Government, or other organisations, for example:

    ointentionally providing false personal information (such as fraudulent work experience or qualification documents) or

    oother material deception during visa and citizenship applications;

    ...

15. Under the heading ‘Community standards’, CPI 15 draws upon the findings in Zheng[31] that the Preamble to the Act can assist in identifying what the Australian community considers proper behaviour when assessing good character. The Preamble states:

    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; and

    b.    by sharing their democratic beliefs; and

    c.     by respecting their rights and liberties; and

    d.    by upholding and obeying the laws of Australia.

    [31] Zheng v Minister for Immigration and Citizenship [2011] AATA 304.

16. CPI 15 states that the standards of the Australian community may be drawn from:

    Government both Federal and State, initiatives, such as the making of new laws or reviewing of existing laws, campaigns to raise awareness in the community, the appointment of Royal Commissions to investigate certain matters and make recommendations to government on issues that affect the community should be taken into consideration where relevant, as these issues are reflective of Australian community expectations.

17. Under the heading ‘Weighing information’, CPI 15 sets out how an overall assessment of a person’s character might be made:

    In addition to the general principles of good decision-making set out in CPI 17 – Decision-making under the Citizenship Act, officers assessing whether an applicant is of good character should as a general proposition:

    ·characterise the nature of any offence or behaviour

    ois the offence serious or minor?

    odid the offence harm other people?

    owho were victims?

    ois there a pattern of behaviour?

    owas it a one off incident?

    owere there extenuating circumstances?

    ·consider any associations with people or organisations of concern.

    ·consider any mitigating circumstances:

    olength of time since the offence was committed

    oage at time of offence

    obehaviour since completing prison sentence or obligations to court

    oremorse regarding their offending behaviour

    ocommunity support (referee reports etc)

    ochanges in the life of the applicant. For example, relocation away from people who had a negative influence, marriage or de facto relationship, children, treatment for addiction or mental illness.

    The decision-maker must weigh up all relevant factors to decide whether the applicant is of good character. The decision-maker must look holistically at applicant’s behaviour over time and reach a conclusion about the person’s enduring moral qualities.

18. The requirement for a holistic assessment of a person’s character was also discussed in Prasad,[32] where the Tribunal found:

    …a decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness.

    [32] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326 [7] (Prasad).

    ISSUE FOR DETERMINATION

19. The issue for determination is whether the Applicant is of good character pursuant to

    
    

    s 21(2)(h) of the Act.

    EVIDENCE

    Documentary evidence 

20. The following documents were taken into evidence:

    (a)Applicant’s Statutory Declarations dated 28 January 2021 and 23 March 2021, both made with the assistance of a translator;[33]

    (b)University enrolment details for the Applicant’s daughter;[34]

    (c)Citizenship certificate of the Applicant’s son;[35]

    (d)Section 37 documents numbering 480 pages;[36] and

    (e)Supplementary Section 37 documents numbering 16 pages.[37]

    [33] Collectively, Exhibit A1.

    [34] Exhibit A2.

    [35] Exhibit A3.

    [36] Exhibit R1.

    [37] Exhibit R2.

    Applicant’s evidence

21. The Applicant was the only witness called during the hearing. His evidence is summarised as follows:

    (a)The Applicant adopted his Statutory Declarations as true and correct;

    (b)The Applicant discussed his early life and absence of formal education. He referred to work in ‘construction and as a driver’. His documentary evidence refers to work in other countries prior to arrival in Australia;

    (c)The Applicant said his consistent employment in Australia means he has never been ‘a burden on the government shoulder’;

    (d)The Applicant agreed some of the information he provided to the Respondent in applications and forms during the last decade was false. He characterised this as a ‘mistake’ and conceded it was not corrected until late 2020. He agreed the motivation for doing so was the Respondent’s persistent enquiries;

    (e)The Applicant explained that in providing false information he ‘listened to wrong advice’ from others, which he regretted. When asked why he waited until 2020 to correct the information, the Applicant said:

    I wanted to remain consistent with what I previously said and was fearful that if I were to declare, it would have negative consequences for me and my family. I apologise for taking that approach.

    (f)In other evidence, the Applicant blamed a lack of education and inability to speak English for his ‘mistake’. Ms Prasad put to him in cross-examination this was not a ‘mistake’ but a deliberate course of conduct, to which he responded:

    I did not fill out the application forms myself. I got someone else’s assistance to help me…given that I am unable to read…I did not have any knowledge of what was written on the forms, if I knew what was the content…I would have corrected it.

    (g)When asked if he was assisted by an interpreter when first providing incorrect information to the Department, the Applicant agreed an interpreter was used but claimed he was ‘stressed and tired’ after his journey to Australia and ‘might have said things that were not correct’. The Applicant was challenged by Ms Prasad that this conflicted with concessions in his Statutory Declarations that he intentionally provided false information. The Applicant accepted he ‘did not tell the truth’ and said he ‘never found the right opportunity to tell the truth’, because every time he ‘decided to come clean…it was always in the back of [his] mind what would be the consequences’;

    (h)Ms Prasad put to the Applicant that he had continued to deliberately mislead the Department in his citizenship application. The Applicant claimed this was not his intention and referred to telling the Departmental official when submitting his overseas driver’s licence that he was ‘uncertain about the legitimacy or genuineness of the document’;

    (i)The Applicant stated he accepted responsibility for his past conduct and did not seek to ‘blame it on anyone else’. He then immediately referred to unfamiliarity with ‘Australian law and regulations’ on arrival in Australia and listening to ‘wrong advice’ as factors causing him to provide ‘false information’;

    (j)The Applicant was asked why he waited until 2020 to correct his past false claims. He said one of his friends counselled him to ‘come clean and tell the truth’. Others in his ethnic community told him it was better to maintain consistency with what he previously said or risk ‘severe consequences’. The Applicant said he also sought counsel from community leaders who told him he ‘should have spoken to [them] a long time ago and…come clean with the Department’. He could not recall precisely when these conversations occurred but thought it was in 2019. He agreed it was the Department’s repeated questions that caused him to finally tell the truth in late 2020;

    (k)During re-examination by Ms Psihogios, the Applicant said he accepted responsibility for his ‘mistake’ and knew the information he provided was false. When asked to precisely clarify what he was accepting responsibility for, the following exchange occurred between Ms Psihogios and the Applicant:

    Ms Psihogios

    : I need to understand the difference between what you are accepting responsibility for, which is the provision of the incorrect information about your siblings, and what you regard as mistakes in the forms, because you did not complete them yourself because you were unable to. Do you understand?

    
    
    

    Applicant: Well I accept responsibility for both instances. If I did not understand what the content of the form were, I should have asked someone who could understand the contents.

    CLOSING SUBMISSIONS

    Applicant

1. Ms Psihogios said the Applicant was remorseful and several factors had contributed to his past conduct. This included lack of education, listening to the advice of others, and fearing entry may have been refused on his arrival in Australia. She said a distinction should be drawn between the Applicant’s unequivocal acceptance of providing false information and other ‘literal mistakes’ resulting from those who assisted him with forms.

2. Ms Psihogios said the Applicant’s character references showed he was honest, reliable, and adhered to the rules and values of Australian society. When challenged that the Applicant’s provision of false information and failure to correct it for over a decade was inconsistent with this claim, Ms Psihogios said it was ‘an exception to his unblemished compliance with Australian laws and values’.

   Respondent 

3. Ms Prasad said the Applicant provided false information to the Department on multiple occasions, even when issues were squarely raised with him, then maintained this dishonesty until a year ago. This dishonesty was directed at obtaining favourable migration and citizenship outcomes. Ms Prasad said the fears the Applicant relied upon for providing false information 12 years ago did not explain his subsequent provision of false information in 2016 and 2020, when he had permanent residency.

4. Ms Prasad said the Applicant’s eventual truthfulness in late 2020 resulted from persistent Departmental enquiries rather than his own decision to address his past conduct. She said the Applicant continued to downplay the seriousness of his conduct by blaming others and claiming he did not understand Australian law or what he was signing. Ms Prasad said the Applicant’s remorse could not be accepted in these circumstances and insufficient time had passed for him to be considered of good character.

   FINDINGS

5. It is accepted the Applicant has no formal education and his aspiration on arrival in Australia was to change the course of his family’s life. It is commendable that he has worked hard, supported his family, and purchased a home. He is well-regarded by his employer as a hard worker and by the president of his ethnic community organisation as a valued member.

6. But this application is not about the Applicant’s fame or repute in the community.[38] It is also noteworthy that the authors of supportive letters do not refer to the conduct that has called his character into question. The Applicant accepts he provided false information to the Respondent and did not correct this until a decade later, when the Respondent’s direct questions compelled him to. Aspects of the Applicant’s evidence minimised and downplayed his conduct. This is not accepted, particularly his claims that:

   (a)He was “stressed and tired” on arrival in Australia, causing him to say things that were incorrect. The Tribunal found this self-serving and conflicting with the concessions made in his Statutory Declarations;

   (b)He ‘did not have any knowledge what was written on the forms. If I had, I would have corrected it.’ This is blame-shifting and fails to acknowledge the Applicant is personally responsible for documents submitted in his name;

   (c)He did not know what he did was wrong because of unfamiliarity ‘with Australian law or regulations.’ This again conflicts with concessions in his Statutory Declarations. Knowledge of the law is not a precondition to knowing if you are being untruthful. It is also never a good excuse to say, in effect, I lied because others told me to; and

   (d)He never ‘found the right opportunity to tell the truth.’ The Applicant had more than a decade to correct the record but only did so in response to the Respondent’s enquiries. His provision of the correct information a year ago shows he could have ‘found the right opportunity’ much earlier.

   [38] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, at 431-432.

   CONCLUSION

7. The Tribunal is satisfied the Applicant intentionally provided false information to Departmental officials on arrival in Australia and failed to correct this for over a decade. This is serious conduct constituting deliberate dishonesty in an official context. It is not only inconsistent with maintaining the integrity of Australia’s migration system but is at odds with the good character and enduring moral qualities expected of someone seeking citizenship. Aspects of the Applicant’s evidence sought to minimise and downplay his past conduct. This is not to his credit and diminishes his claims about insight and remorse.

8. The prolonged nature of the Applicant’s objectionable conduct weighs significantly against his application. He only drew a line under past untruthfulness to immigration authorities in late 2020. Insufficient time has passed for him to be currently considered of good character, notwithstanding other positive aspects of his application. Drawing on the reasoning in Fenn, refusal of the Applicant’s citizenship application does not deprive him of currently held rights or prevent him from applying again when he is able to demonstrate a longer period of good character.

   DECISION

9. The Tribunal affirms the decision under review.

31.      

I certify that the preceding 30 (thirty) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate

Dated: 24 November 2021

Date of hearing:	17 and 18 November 2021
Advocate for the Applicant:	Ms Maria Psihogios
Solicitors for the Applicant:	MP Migration Law
Advocate for the Respondent:	Ms Subasha Prasad
Solicitors for the Respondent:	Minter Ellison