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

[2021] AATA 2983

PSMH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2983 (20 August 2021)

Division:GENERAL DIVISION

File Number:          2020/4160

Re:PSMH

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:20 August 2021

Place:Melbourne

The Tribunal affirms the decision under review.

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Catchwords

CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether Applicant has satisfied paragraph 21(2)(h) of Australian Citizenship Act – whether the Applicant is of good character– decision affirmed – Tribunal not satisfied that the Applicant is of good character

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 2007 (Cth)

Cases

BOY19 v Minister for Immigration and Border Protection

[2019] FCA 574
2021 AATA 243

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

Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Secondary Materials

Revised Citizenship Policy Instruction, Chapter 15

REASONS FOR DECISION

Mr A. Maryniak QC, Member

20 August 2021

1. This is a review of a decision of a delegate of the Respondent of 17 June 2020 refusing the Applicant Australian citizenship.  The sole issue before the Tribunal is whether, pursuant to s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the ‘Act’), the Applicant is of good character.

   BACKGROUND

2. The 36-year-old male Applicant, a citizen of Pakistan, was granted a Higher Education Sector (subclass 573) visa on 24 April 2013 and arrived in Australia on 2 May 2013.  He subsequently met the requirements of, and was granted, a Protection (subclass 866) visa on 27 February 2014. 

   APPLICABLE LEGAL PRINCIPLES

3. The term “good character” is not defined in the Act, indicating that Parliament intended the term to be used broadly and to allow the decision maker (in this instance the Tribunal) to consider a range of events and conduct connected with the Applicant:  Grass v Minister for Immigration and Border Protection (2015) 231 FCR 128 at [60] per Perram, Yates and Mortimer JJ.

4. The Tribunal must not approve an application for Australian citizenship unless the applicant satisfies the relevant eligibility requirements under s 21 of the Act, here relevantly, s 21(2)(h). 

5. The Tribunal must be satisfied that the applicant is of good character at the time of the decision, by forming an opinion requiring an evaluative judgement, as discussed in BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 and by reaching an affirmative belief that the applicant is a person of good character: at [54]-[55].[1] 

   [1] See also Dawlatshahi and Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (Citizenship) 2021 AATA 243 at [4] to [14].

6. Further guidance is provided in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432. In essence, an objective assessment of ‘good character’ is required. The Tribunal is to look holistically at the applicant’s behaviour over time in order to be satisfied of enduring moral qualities within the prospective Australian citizen. The Tribunal is also to be guided by Chapter 15 of the Revised Citizenship Policy Instruction – ‘Assessing Good Character under the Citizenship Act’.

   CONSIDERATION

7. The Tribunal has considered the written and oral submissions of the parties, the documentary evidence before it including the statutory declarations from the Applicant made 1 April 2020 and 11 September 2020, together with the oral evidence of the Applicant, who was cross examined and questioned by the Tribunal. 

8. The Respondent submits that the Applicant “has engaged in a web of deceit, and when confronted by the Department about his family relationships with his sister and brother in law, engaged in this further deception to the extent of committing an offence under the Statutory Declarations Act 1959 (Cth).”[2] 

   [2] Respondent’s SFIC at [24].

9. The Applicant essentially submits that his mistake was a “one-off”, occurred prior to him receiving proper legal advice, and that he is genuinely remorseful and sorry for providing the incorrect information to the Department.

10. The Respondent also identified an inconsistency given by the Applicant to the Department as to his previous residential address. The Tribunal accepts the Applicant’s oral evidence explaining such discrepancies in the different expressions of the same address and finds that this aspect is without substance and does not detract from the assessment of the Applicant’s character.

11. However, the Tribunal has reached a different conclusion with regards to the Applicant’s conduct, over many years, relating to the concealment of his familial relationship with his sister and brother-in-law. Whilst the Tribunal accepts the Applicant’s admirable desire to protect his sister and nieces from the harm associated with deportation (albeit ill-informed), the Tribunal is concerned that there is a disconnect on the evidence before it regarding the Applicant’s assertion that this was his sole motivation for providing false information. 

12. There is a conflict in the evidence between the content of his statutory declaration of 11 September 2020 at [4] and the Applicant’s evidence under cross examination and re-examination.[3] It is apparent from the oral evidence that the Applicant was also thinking about himself at least at the time of lodging his Protection visa application.  The Applicant was concerned that his sister and brother-in-law and were both in Australia on the basis of documents from Afghanistan showing they were Afghan citizens, but he was and remains a citizen of Pakistan.  Hence, there is a tension within the Applicant’s evidence given to the Tribunal and what is declared by him to be correct in his statutory declaration of 11 September 2020 at [4], where he declares that the only reason for his concealment was to protect his sister and her children. The Tribunal is satisfied that this tension detracts from any possible finding of good character apropos the Applicant.

    [3] Transcript of Proceeding pp 29-30.

13. Further, the Tribunal is also concerned that the Applicant went beyond a mere denial in his statutory declaration of 1 April 2020, constructing a story involving, inter alia, the assertion that he had been told that he looks like ‘a famous actor in China’ in an attempt to deflect the Department’s legitimate query as to why he and his sister’s faces looked similar.  Such a false narrative was declared by the Applicant to be true just last year on 1 April.

14. The Tribunal understands that the 1 April 2020 statutory declaration was made before the Applicant had legal representation. However, being such a recent instance of providing incorrect information to the Department  in response to its detailed letter seeking clarification dated 12 March 2020,[4] this lack of representation cannot prevent it from being highly relevant to the current assessment of the Applicant’s character.

    [4] T-Documents pp 600-604.

15. Against these findings and in favour of the Applicant, the Tribunal accepts that the Applicant is now genuinely remorseful and sincerely regrets not being upfront and truthful to the Department until recently, and that the Applicant is well on the way to becoming a prospective Australian citizen of good character.  The Tribunal also notes that there is evidence which establishes he is held in high regard in his community and that he has made positive contributions to Australian society to date, including doing significant volunteer work.

16. However, on balance, this Tribunal is not satisfied at this time that the Applicant is of good character as required by s 21(2)(h) of the Act.  Whilst the Tribunal rejects the Respondent’s assertion that the Applicant was involved in a “web of deceit”, the Tribunal does find that an insufficient amount of time has passed since the Applicant declared as true, the false narrative as contained in his statutory declaration dated 1 April 2020.

17. In light of the matters set out above, the Tribunal is not presently satisfied it can reach an affirmative belief that the Applicant is a person of good character.  On the evidence, looking holistically and objectively, the Tribunal is not satisfied that enduring moral qualities in the Applicant are sufficiently established.

18. This finding against the Applicant should not deter him from making a fresh application for citizenship in the future, should he be advised to do so.  The Tribunal is of the view that the Applicant has real potential to be found to be of ‘good character’ once his on-going positive contributions to Australia are considered at a future time and balanced against his indiscretions in dealing with the Department until recently.

    DECISION

19. The decision of the delegate under review dated 17 June 2020 is affirmed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for the decision of Mr. A. Maryniak QC, Member

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

Associate

Dated: 20 August 2021

Dates of hearing:

Date of last Submission:

26 February 2021

9 March 2021

Advocate for the Applicant: 

Mr Ibrahim Safi

Agency for the Applicant:

Migration Prospects

Advocate for the Respondent:

Mr Lenny Leerdam  

Solicitor for the Respondent: 

Mills Oakley Lawyers