Qazzikhel and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

[2024] AATA 3270

Qazzikhel and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3270 (11 September 2024)

Division:GENERAL DIVISION

File Number(s):2023/6429      

Re:Soltany Qazzikhel  

APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd  

RESPONDENT

Tribunal:Mr J Cipolla, Senior Member

Date:11 September 2024

Place:Sydney

DECISION

The Tribunal sets aside the decision of the delegate dated 7 August 2023 refusing the Applicant’s application for Australian Citizenship, and in substitution the matter is remitted to the Respondent for reconsideration with the following direction:

(a)That the Applicant is a person of good character, and therefore satisfies the requirements of section 21(2)(h) of the Citizenship Act.

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

Mr J Cipolla, Senior Member

Catchwords

CITIZENSHIP — Application for Australian citizenship by conferral — Refusal of citizenship application — Whether Applicant has satisfied section 21(2)(h) — Good character requirement — Citizenship Policy — Meaning of ‘good character’ — Pakistani Police Clearances — Victorian Civil and Administrative Tribunal (VCAT) Orders — Traffic Offences —Provision of Inconsistent Information in Citizenship Form — Decision under review set aside.

Legislation

Australian Citizenship Act 2007 (Cth)

Cases
Ahori and Minister for Immigration and Border Protection [2017] AATA 601

Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Sharma v Minister for Immigration and Border Protection [2015] AATA 608

Secondary Materials

Australian Citizenship Policy Statement

CPI 15 - Assessing Good Character under the Citizenship Act

REASONS FOR DECISION

11 September 2024

INTRODUCTION

1. On 17 December 2016 Mr Qazzikhel (the Applicant) lodged an application for Australian citizenship by conferral.

2. On 7 August 2023 a delegate of the Minister refused to approve the application for Australian citizenship. The delegate was not satisfied that the Applicant was of good character, pursuant to s 21(2)(h) of the Australian Citizenship Act (the Act), which is a requirement for eligibility to become an Australian citizen.

3. On 31 August 2023, the Applicant sought a review of the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) to refuse his grant of Australian citizenship by conferral with the Administrative Appeals Tribunal (AAT).

4. For the reasons that follow, the decision will be set aside.   

   BACKGROUND

5. The Applicant is a citizen of Afghanistan. On 10 May 2009, the Applicant arrived in Australia by air without a visa. The Applicant applied for a Subclass 866 Protection visa, which was granted to him at primary stage. The Applicant as a consequence of this successful visa application obtained permanent Australian residence. The Applicant is currently the holder of a Subclass 155 Return (Residence) (Class BB) visa.

   Background

6. In support of his application for citizenship by conferral the Applicant provided the Department with a number of police clearances from Pakistan, seven in total. Five of those police clearances were deemed by the Department to be non-genuine. Two of the police clearances dated 11 July 2023 and 2 October 2023 were verified by the Pakistani authorities as being genuine.

7. The Minister determined that because of the provision of five police certificates that were deemed to be non-genuine and fraudulent, that the provision of two police clearances verified by the Pakistani authorities as genuine, did not negate or mitigate the fact that the Applicant had previously provided fraudulent documents to the Minister.

8. The Minister also determined that the Applicant had provided incomplete information in his citizenship application form. That form asks an Applicant to give details of all the countries that they have lived in or travelled to since attaining the age of 18. The Applicant failed to declare visits to Iran or Turkey and only referred to one visit to Nauru. The Minister noted that this differed to information provided in an application for sponsorship for a partner to migrate to Australia, in which he declared one visit to Iran, one visit to Turkey and six visits to Nauru before the period ending 17 December 2016, which was the date of the Applicant’s citizenship application. The Minister contended that this demonstrated that the Applicant did not provide accurate information in these applications submitted to Department.

9. The Minister noted that the Applicant in January and March 2017, failed to comply with two legal orders made by the Victorian Civil and Administrative Tribunal (VCAT), with respect to a compensation payment to a previous landlord in relation to a breach of a previous residential tenancy agreement. The evidence indicates that in October 2017, the Applicant entered into a legal agreement with the landlord for the payment of compensation. The Applicant did not pay this compensation in full until 18 April 2023, more than 6 years after the VCAT proceedings. The Minister’s delegate determined that had the Department not followed up the payment of this compensation it would have remained unpaid. The delegate determined that the failure to pay the compensation when due, was given “significant weight” in their consideration of the Applicant’s ability to meet character requirements.

10. The Minister also noted that on 2 December 2013 the Applicant was found guilty of failing to wear a seatbelt and depositing litter from a stationary vehicle, for which no conviction was recorded and for which the Applicant was fined $350.

11. The delegate of the Minister determined that cumulatively these factors demonstrated a disregard for the laws of Australia and impugned the Applicant’s character.

12. A hearing was conducted on 13 August 2024. The Applicant attended the review hearing and gave evidence to the Tribunal under oath. The Applicant’s wife Zahra also attended the Tribunal and gave evidence under oath. The Applicant was represented by Mr Mohammad Al-Shadidi. The Minister was represented by Ms Gabrielle Gutmann. The Tribunal and the parties were assisted by an accredited Persian interpreter.

13. The Tribunal noted that the Applicant had applied to the Tribunal for a review of a decision of the Minister to refuse his application for citizenship by conferral on the basis that he did not meet relevant character requirements. The Tribunal noted that the AAT was an independent and impartial body that had been set up by the Australian government to conduct reviews of Federal government decisions. The Tribunal noted that it had reviewed the evidence provided by the Applicant and the evidence provided by the respondent. The Tribunal noted that it was required to assess the evidence before it in order to come to the correct and preferable decision in the review.

14. The Applicant’s representative addressed the Tribunal. Mr Al-Shadidi advised that the Applicant’s driving offence occurred in 2013, when he was not wearing a seatbelt and he threw a cigarette out the window of a stationary vehicle. No conviction was recorded, and the Applicant was fined.

15. Mr Al-Shadidi advised that with respect to the VCAT order and with respect to compensation arising to a landlord from a residential tenancy agreement, that the Applicant had since attended to it and it had been repaid in full.

16. Mr Al-Shadidi noted that with respect to the Pakistani police checks, that the Applicant had no criminal history, and this was documented in the two police clearance certificates dated 11 July 2023 and 2 October 2023 which were confirmed by Pakistani authorities to be genuine.

17. The Tribunal notes the Minister’s submissions that the Minister has no issue with the genuineness of these certificates. Mr Al-Shadidi contended that no person would want to create issues with respect to a citizenship application by providing fraudulent documents in support of their application. Mr Al-Shadidi stated that the Pakistani system for the provision and authentication of documents was not perfect and that the Applicant was a victim of acts by others beyond his knowledge and control. Mr Al-Shadidi submitted that the Applicant was a person of good character.

18. Ms Guttman addressed the Tribunal. Ms Guttman submitted that the Minister was reliant on the respondent’s statement of issues facts and contentions that had been submitted to the Tribunal. Ms Guttman stated that with respect to the Applicant’s submission that she had a number of points to make. With respect to the VCAT debt, Ms Guttman stated that the argument that the Applicant forgot to pay this debt is insufficient, that the evidence adduced with respect to the repayment of this debt being repaid in full raised relevant character concerns, and if the Applicant paid his rent directly to the landlord’s agent he would have known where and how to repay the debt.

19. With respect to the police certificates, Ms Guttman noted that she did not accept the argument that the Applicant was a victim of an act by others in circumstances beyond his control. Ms Guttman noted that in submitting his citizenship application the Applicant made a declaration that all the information contained in the application was true and correct. Ms Guttman noted that a number of police clearance certificates submitted by the Applicant were found to be fraudulent during the processing of his application.

20. Mr Al-Shadidi conducted an examination of the Applicant.

21. Mr Al-Shadidi asked the Applicant why he failed to pay the VCAT order in 2017. The Applicant stated there were a range of circumstances. He stated that at the time of the order he did not have a job. The Applicant stated that he came from Afghanistan and that his family was struggling in Afghanistan and that he provided support to them. The Applicant gave evidence that at the time that the VCAT debt accrued that he was in receipt of Centrelink payments because and that he believed some amount was being deducted from his Centrelink benefits to repay the VCAT debt.

22. The Tribunal asked the Applicant how he came to be in VCAT. The Applicant stated there were problems during his tenancy, namely leaking from the ceiling which created a mould problem and from which he developed an allergy. The Applicant stated that representations were made by himself and his flatmates to the landlord’s agent, however no action was taken. The Applicant stated that he made repeated requests for the problem to be fixed and that after a few months of inattention, the Applicant and his fellow flatmates left the premises and did not give appropriate notice. The Applicant stated that unfortunately he did not have any evidence with respect to the leak and mould issues.

23. The Tribunal asked the Applicant what type of residential tenancy agreement he had signed, and he advised it was a six-month agreement. The Tribunal noted that a tenant is expected to give an Applicant written notice if they are vacating the premises during the fixed term or at the expiration of the fixed term. The Applicant stated that he was not aware of the need to do this. The Applicant stated that he and his fellow tenants failed to email the agent about vacating the premises and as a consequence, the landlords agent took the Applicant and his co-tenants to VCAT.

24. The Applicant stated that between 2017 and 2023 he came to learn that there was a change of real estate agent, and as a consequence he did not know where to repay the outstanding monies. The Applicant advised that he was in the residential premises for approximately seven months. The Tribunal asked the Applicant whether he remembered signing a lease for the property and the Applicant stated that he had no memory–but confirmed that he paid rent directly to the real estate agent.

25. The Tribunal noted that a landlord has obligations to a tenant and a tenant has obligations to a landlord. The Tribunal asked the Applicant whether he received any documentation pertaining to the tenant’s obligations. The Applicant stated that he did receive documents, however, his English was not good at this time.

26. The Tribunal asked the Applicant whether he completed an ingoing condition report and an outgoing condition report with respect to the residential premises in question. The Applicant stated that there was no ingoing condition report or outgoing condition report to his knowledge. The Applicant stated that with respect to the leak issue that he and his fellow tenants attended the real estate agency three times with promises by the agent that the owner would fix the issue, but this was never attended to.

27. The Tribunal asked the Applicant why he did not take an action to VCAT with respect to the landlord’s failure to repair the leak in the premises. The Applicant stated he did not know of the capacity to go to VCAT.

28. The Tribunal asked the Applicant whether he had access to a representative or an interpreter for the VCAT proceedings and he advised that he did. The Tribunal asked the Applicant whether he signed any documents at VCAT and he advised that he did. The Tribunal asked the Applicant whether he engaged in conciliation or alternative dispute resolution at VCAT. The Applicant stated that there was a process that resulted in an agreement. The Applicant stated because of a failure to give notice of their intention to terminate the residential tenancy agreement that a debt accrued.

29. Mr Al-Shadidi asked the Applicant questions with respect to the obtainment of his police checks from Pakistan. The Applicant stated that he applied for 7 police clearance checks in total. The Applicant provided the Tribunal with details pertaining to the application for each police clearance certificate that were applied for by his wife in Pakistan. The Applicant explained that there seem to be a differential system for Pakistani’s and for Afghani nationals. The Applicant stated that in approaching police stations and other Pakistani official premises that Afghanis were not allowed inside, and the Pakistani’s were mistrustful of Afghani nationals.

30. Mr Al-Shadidi noted that the Department of Home Affairs had formed the view that the Applicant was not a person of good character and asked the Applicant to comment on this. The Applicant stated that he had committed no offences in Australia or overseas. The Applicant stated that he went to the relevant authorities in Pakistan to obtain the police clearance certificates. The Applicant stated that he had not made any mistakes with respect to this.

31. Ms Guttman cross-examined the Applicant. Ms Guttman made reference to the two police clearance certificates dated 11 July 2023 and 2 October 2023, noting that the Applicant had submitted these documents and that the Department found that these were genuine. Ms Guttman asked the Applicant how he obtained those two documents. The Applicant provided details with respect to this. Ms Guttman noted that prior to the provision of these two police clearance certificates the Applicant provided five certificates deemed by the Australian government to be fraudulent and asked the Applicant whether he agreed with that. The Applicant claimed that he had followed directions he had been given with respect to the provision of these certificates.

32. The Applicant advised that he obtained all of the issued police certificates from the relevant authorities in Pakistan. The Applicant stated he could not explain how conclusions were reached with respect to the documents being fraudulent documents.

33. The Applicant went into considerable detail about the process that an Afghani needs to go through with respect to obtaining a police clearance certificate in Pakistan. He provided evidence that there was a differential process to Pakistanis because of his Afghani ethnicity. Ms Guttman questioned the Applicant with respect to inconsistencies and anomalies that existed in the documents deemed to be non-genuine after checks with consular officials in Islamabad. The Applicant reiterated that he followed proper processes to obtain each of the certificates, that they were issued to him by the relevant Pakistani authorities and that the two genuine certificates had confirmed that he had no criminal history or adverse findings in Pakistan.

34. Ms Guttman asked the Applicant questions with respect to his residential tenancy agreement. Ms Guttman noted the evidence elicited by the Tribunal, provided by the Applicant which indicated the Applicant was represented at VCAT proceedings and was given access to an interpreter. The Applicant confirmed that this was the case. The Applicant re-stated that there had been problems with the residential premises in question due to leaks and mould. The Applicant stated that he went through dispute resolution processes at VCAT.

35. Ms Guttman asked the Applicant whether at the end of that process his legal aid lawyer explained to him the process of repayment of the debt to the landlord. The Applicant stated that he was advised that he would need to pay the compensation. The Applicant stated that he was on Centrelink benefits at the time and that contributions towards the residential tenancy debt were debited from his pension. Ms Guttman asked the Applicant why repayment through Centrelink ended. The Applicant stated that he obtained some training and work as a taxi driver in Victoria, however around this time the taxi industry collapsed in Victoria due to rideshare organisations taking over. Ms Guttman asked the Applicant why he did not repay his debt to the landlord whilst working as a taxi driver. The Applicant stated that he had significant debt issues at the time, and that his Centrelink benefit had been suspended and the Applicant stated that he paid the debt at a later stage when he could afford to do so and more importantly when his current representative assisted him in locating the new managing real estate agent so that he could do this.

36. The Applicant’s representative advised that he was reliant on the contents of statutory declarations provided in support of the Applicant.

37. Evidence was taken from the Applicant’s wife Zahra, who provided evidence with respect to the obtainment of police clearance certificates when she was in Pakistan. This evidence corroborated the evidence that had been provided by the Applicant.

38. The Applicant’s representative made closing submissions. Mr Al-Shadidi stated that consistent evidence had been provided by both the Applicant and his wife with respect to the obtainment of police certificates. Mr Al-Shadidi stated that the police clearance certificates applied for by the Applicant and his wife were now being impugned on the basis that they should be considered fraudulent on the basis and that they had been issued by somebody who did not have the appropriate authority to issue them.

39. Mr Al-Shadidi stated that the Applicant should not be blamed for defective administration and defective systems in Pakistan. Mr Al-Shadidi submitted that two of the Pakistani police clearance certificates pertaining to the Applicant indicated that he had no police record in Pakistan and were deemed by the Department to be genuine, indicative of the fact that the Applicant has no record in that country whatsoever.

40. Mr Al-Shadidi stated that it would not be in a person’s interests to obtain fraudulent documents with respect to an application for citizenship and further noted that Afghanis were discriminated in Pakistan making accessing documents difficult. Mr Al-Shadidi submitted that the Applicant and his wife followed police direction and that there were deficiencies with respect to the Pakistani authorities issuing of these certificates and the Applicant should not be held accountable for something over which he did not have control.

41. With respect to the VCAT issue Mr Al-Shadidi submitted that, the Applicant was suffering hardship at the time of the repayment of these monies due to being unemployed. The Applicant did not know how to repay the compensation monies to the landlord due to the change of real estate agent. Mr Al-Shadidi stated that his office was able to locate the new managing agent and the Applicant had repaid the balance of the compensation monies to his former landlord in full. Mr Al-Shadidi submitted that these factors should not undermine the Applicant’s character as he had provided a plausible explanation for not repaying the VCAT debt at an earlier point in time. Mr Al-Shadidi submitted that the Applicant was a person of good character and standing in the community as evidenced by his witness statements.

1. Ms Guttman stated that the issue for the Tribunal was the application of s 21(2) of the citizenship act and whether or not the Applicant was a person of good character. Ms Guttman noted that the Ministers written submission sets out the relevant authorities that the Tribunal should have regard to with respect to character issues. These authorities suggested that a decision maker must be positively persuaded that an Applicant is of good character at the time of decision.

2. Ms Guttman noted that a number of police clearance certificates were deemed to be fraudulent. She submitted that this impacted the Applicant’s character. Ms Guttman made reference to the Applicant’s evidence with respect to the difficulty for Afghani people obtaining police clearance documents in Pakistan and that the process was different for Afghani’s and the convergent argument that if there had been difficulties it would be easier to obtain fraudulent documents.

3. Ms Guttman noted that the Applicant was assisted at VCAT by a Legal Aid lawyer and an interpreter and that he entered into a payment plan and had his Centrelink benefits debited for a period of time with respect to his residential tenancy debt. Ms Guttman noted the Applicant did not pay his residential tenancy debt back in full until April 2023, and his claims that he did not have the new managing real estate agent’s details. Ms Guttman posited that the Applicant could have contacted the Real Estate Association of Victoria or made other relevant enquiries in respect to the debt and that he failed to do so. Ms Guttman submitted that the Applicant’s history suggested that he did not have moral qualities associated with good character.

4. In reply to the contentions forwarded by the Minister’s representative, Mr Al-Shadidi stated that there was no evidence that the Applicant knew that the documents were not genuine. Once again Mr Al-Shadidi stated that Afghanis obtaining official documents in Pakistan experienced a range of difficulties in doing so.

5. Mr Al-Shadidi noted that with respect to the Applicant’s debt to his former landlord that questioning by the Tribunal established that some of this debt had been repaid through Centrelink direct debits. The Tribunal’s questioning further established that the Centrelink direct debits ceased when the Applicant obtained work as a taxi driver.

   ISSUE TO BE DETERMINED

6. The issue to be determined is whether, at the time of the Tribunal’s decision, the Applicant is of ‘good character’ such that he meets the requirements of subsection 21(2)(h) of the Act.

   LEGISLATIVE AND POLICY FRAMEWORK 

7. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. 

8. Subsection 24(1) of the Act provides that if a person makes an application under section 21 of the Act, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.

9. Subsection 21(2) of the Act sets out the general eligibility requirements for Australian citizenship. Relevant to this application, paragraph 21(2)(h) of the Act stipulates that the Minister must be satisfied that a person is of good character to be eligible to become an Australian citizen. 

   Determining questions of character

10. The term ‘good character’ is not defined or qualified by the Act. Its meaning was considered by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (Irving) in the context of the power of the Minister to refuse to issue a visa. Lee J said:

    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 to 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 whilst 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.[1]

    [1] (1996) 139 ALR 84, at 94.

11. In determining whether an individual is of good character, the Australian Citizenship Policy Statement and the Citizenship Procedural Instructions provide guidance for decision makers. The policy relevant to this application is found in CPI 15 - Assessing Good Character under the Citizenship Act.

12. Informed by the discussion in Irving, subsection 3.3 of the Instruction state that:

    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.[2]

    [2] T15 p 106.

13. The Instructions specifically call for decision makers to ‘look holistically at [an] Applicant's behaviour over time and reach a conclusion about the person’s enduring moral qualities’.[3] A person’s enduring moral qualities encompass:

    [3] CPI 15, section 14, see T15 p 120.

    • 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.

    Paragraph 3.1 of CPI 15, under the heading ‘Procedural Instruction’, states:

    Good character refers to the enduring moral qualities of a person. A person who is of good character is likely to uphold and obey the laws of Australia and the other commitments made when making the Pledge of commitment should they be approved to become an Australian citizen. This Instruction provides a framework for assessing an Applicant under the ‘good character’ provisions. Decision-makers must:

    • consider any character issues that arise on the facts of a case;

    • consider all relevant information;

    • guard against bias;

    • be mindful that the requirement to be of ‘good character’ does not mean that a person must be of ‘perfect character’;

    • be mindful that a person who may not have been of good character can become a person of good character;

    • continue to assess the character issues until satisfied, on a reasoned basis, having regard to the available evidence that an Applicant is, or is not, of good character.

    In most cases, it would not be appropriate to automatically conclude that a person is not of good character based on the fact that the person has been convicted of an offence. A full assessment is required. The policy set out in this Instruction should not be applied rigidly or inflexibly. It is important to remember that, where a discretionary power is conferred in the Act, it should be exercised bearing in mind the facts of any particular case. This Instruction provides guidance to decision-makers but it cannot fetter any statutory discretion conferred by the Act. The Instructions reflect government policy and are not binding on the Tribunal. However, it is well established that the Tribunal will apply government policy unless there are cogent reasons not to do so.[4]

    FACTS AND EVIDENCE

    [4] Citizenship Procedural Instructions 15 at paragraph 3.1; See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ.

    The Applicant’s conduct

14. The Applicant provided the Department with a number of police clearances from Pakistan, 7 in total with respect to his application for citizenship by conferral. 5 of those police clearances were deemed by the Department to be non-genuine. Two of the police clearances dated 11 July 2023, and 2 October 2023, were verified by the Pakistani authorities as being genuine.

15. The Applicant provided incomplete information in his citizenship application form. That form requires an Applicant to give details of all the countries that they have lived in or travelled to since attaining the age of 18. The Applicant failed to declare visits to Iran or Turkey and only referred to one visit to Nauru.

16. In January and March 2017, the Applicant failed to comply with two legal orders made by VCAT with respect to a compensation payable to a previous landlord in relation to a tenancy agreement. The evidence indicates that in October 2017 the Applicant entered into a legal agreement with the landlord for the payment of compensation. The Applicant did not pay this compensation in full until 18 April 2023, after the Applicant was informed by the AAT that the outstanding debt could be part of the reason to refuse his application for citizenship.

17. On 2 December 2013 the Applicant was found guilty of failing to wear a seatbelt, and depositing litter from the stationary vehicle for which no conviction was recorded and for which the Applicant was fined $350.

    The Applicant’s submissions

18. The Applicant confirms that he has two interrelated minor traffic offences from December 2013 that occurred in Australia when he was fined whilst in a stationary vehicle for not having a seatbelt on, and for throwing a cigarette from the vehicle. The evidence indicates that the Applicant was fined $330– which he paid in full, and that no criminal conviction was recorded.

19. The evidence indicates that the Applicant incurred a civil debt to a former landlord pursuant to a VCAT finding and order and the evidence indicates that the Applicant has now paid the debt in full in April 2023.

20. In order to process the Applicant’s citizenship application, the Department of Home Affairs required the Applicant to provide a Pakistani police check. The reason for this was due to the fact that, the Applicant had spent time in Pakistan before, and indeed after his migration to Australia.

21. The evidence indicates that the Applicant does not have a criminal record in Pakistan and that is an agreed fact confirmed in the Ministers submission to the Tribunal.

22. What has been problematic for the Applicant was the provision of a number of Pakistani police check certificates from Pakistan later deemed to be fraudulent or to have been issued by persons with no such authority to issue them in Pakistan.

23. The Applicant’s representative submits that the Applicant has been resident in Australia for more than 14 years, and apart from the 2013 traffic infringement, has a good record in the community.

24. The Applicant’s representative submits that the Applicant obtained police checks through what he believed to be the correct and appropriate channels, and that he was not cognisant of any irregular/fraudulent features within the documents that he provided. Nor would he possess the expertise to identify such differences or anomalies.

25. The Applicant’s representative noted that the test that needs to be applied by the Tribunal is whether the Applicant is of good character at the time of the Ministers decision on the application. The submission notes that past conduct is capable of reflecting on character at the time of decision, however, posits that a wholistic assessment needs to be undertaken.

26. The Applicant’s representative posits that the Applicant should be found to be of good character at the time of the Tribunal’s decision. The Applicant’s representative submits that the Applicant has never had a criminal record in Pakistan during the periods of time in which he lived in or visited that country.

27. The Applicant’s representative acknowledges that the Applicant accrued a VCAT civil order with respect to a breach of a previous residential tenancy agreement. The Applicant has provided evidence of a range of difficulties that he was experiencing with respect to the repayment of this debt at the time This was compounded by the fact that the managing real estate agent to which the debt was being repaid changed, and that it was only with the assistance of his current representative that he was able to identify the relevant managing agent so that the debt could be repaid in April 2023.

28. The Applicant’s contends that his 2013 traffic offences were minor and that he has no criminal record or history of involvement in criminal activities in Australia. The Ministers submission is that minor weight should be given to the historical traffic offences.

29. The Applicant’s representative has submitted that the Applicant has integrated into the Australian community through his work and community involvement and that this is demonstrated in the numerous statutory declarations that have been provided by Australian citizens with respect to the Applicant’s good character and his standing in both the Australian and Afghani communities.

30. The Applicant’s representative notes that some of the police clearance certificates were applied for by the Applicant whilst he was in Australia, and this is indicative of the fact that there was no attempt or intention to defraud or deceive the Australian government with respect to the application and receipt of those certificates.

31. The Respondents Submissions

32. The submissions of the respondent on behalf of the Minister indicates that the Applicant arrived in Australia on 10 May 2009 and that he currently holds a Subclass 155 Resident Return visa.

33. The Minister, in submissions to the Tribunal, expressed concerns about the police clearance certificates that were provided to the Department by the Applicant and deemed to be non-genuine. The Minister contends that the statements provided by the Applicant and his wife failed to provide any detailed explanation as to why each of the clearances were found to be fraudulent.

34. The Ministers submission contends that discrepancies in the Applicant’s citizenship application form and his sponsorship for a partner visa for his wife were indicative of discrepancies with respect to countries that the Applicant had lived in or travelled to prior to December 2016. In his citizenship application the Applicant did not declare that he had visited Iran or Turkey and only mentioned one visit to Nauru. In the partner sponsorship application, he noted one visit to Iran, one visit to Turkey, and six visits to Nauru. The Ministers submits that these discrepancies demonstrate that the Applicant had not been honest in his dealings with the Department in the past.

35. The Minister further contends that the failure of the Applicant to pay orders issued by VCAT with respect to a breach of a residential tenancy agreement that were made in January and March 2017, were not paid by the Applicant.

36. in full until 18 April 2023 and demonstrate a lack of remorse by the Applicant for his breach of the residential tenancy agreement and the harm that this was capable of causing his former landlord.

37. With respect to the traffic offences the submission of the Minister is that the Minister accepts that minor weight should be given to the traffic offences against a finding that the Applicant is a person of good character, but contends that when considered cumulatively with the Applicant’s provision of fraudulent documents and incorrect information to the Department and his failure to comply with legal orders VCAT that the Applicant has demonstrated a disregard for the laws of Australia.

38. In determining if the Applicant is of good character, the Tribunal is required to consider the evidence as a whole and the Applicant’s behaviour over time.

    CONSIDERATION AND FINDINGS

39. The Applicant was fined $330 with respect to traffic offences in 2013. The offending was not wearing a seatbelt and disposal of litter from a stationary vehicle. The fines were paid in full, and no criminal conviction was recorded with respect to his offending.

40. The Tribunal notes the Minister’s submission that minor weight should be given to the traffic offences with respect to a finding that the Applicant is not a person of good character.

41. The Tribunal agrees with the Minister’s submission in this respect and finds that the 2013 traffic offences, now 11 years old were dispensed with by way of fine, and led to no criminal conviction being recorded, and hence the Tribunal gives this offending no weight with respect to this offending impugning the Applicant’s good character.

42. As the Applicant had resided for more than 12 months in Pakistan at the time he made his application for citizenship by conferral, he was required to provide a police certificate from the Pakistani authorities, confirming whether or not he had any criminal record in that country.

43. The Applicant, and indeed his wife Zahra, have in the view of the Tribunal provided consistent evidence with respect to how they obtained Pakistani police clearance certificates. They provided evidence that when applying for these certificates they followed the advice given to them by the Pakistani authorities.

44. The Tribunal finds that the evidence provided by the Applicant with respect to his acquisition of these certificates was unwavering under cross-examination at the review hearing. This evidence as noted, is corroborated by the evidence of the Applicant’s wife Zahra, which was entirely consistent with respect to the processes that were undertaken by them to obtain police clearance certificates from Pakistan.

45. The Applicant’s representative submitted that any negative inferences with respect to the obtainment of questionable Pakistani police certificates have been negated by the provision of the two certificates by the Applicant, that have been deemed by both the Pakistani and the Australian authorities to be genuine. These certificates indicate that the Applicant has no criminal record in Pakistan.

46. The Tribunal finds that the provision of two Pakistani police certificates by the Applicant indicative of no criminal offences in Pakistan have served their purpose. That purpose is to establish for the benefit of the Australian government that the Applicant had no record of offending in that country during the period that he was resident in Pakistan.

47. The Tribunal accepts that the Applicant did not knowingly or wilfully go about procuring fraudulent police certificates from Pakistan. The Applicant and indeed his wife Zahra as noted followed the advice of Pakistani officials with respect to the application and provision of these certificates. The Tribunal accepts the Applicants evidence with respect to the difficulties experienced by Afghani nationals in obtaining police clearance certificates from Pakistan. The Tribunal finds that the Applicant would have no basis for suspecting that the certificates that he had provided, would at a later point in time, be deemed non-genuine.

48. The Tribunal accordingly finds that the Applicant’s good character is not impugned by the provision of fraudulent police clearance certificates as this was done unwittingly. In following the Pakistani authority’s directions with respect to the provision of these certificates the Applicant could not have known that the integrity of some of those certificates would be impugned at a later stage in verification checks undertaken by the Department.

49. The Tribunal finds that the minor inconsistencies in the information pertaining to the applicants travel and residential history in his citizenship application and in his partner sponsorship application does not, as the Minister contends attract much weight. The Tribunal finds that the omissions do not pertain to countries in which the Applicant had resided for any length of time. The omission pertains to two countries that the Applicant only visited on one occasion and one country that the Applicant had visited more than once. The omissions did not have any bearing on the outcome of the applications, nor did they preclude the Department from requesting police clearances from any country that the Applicant had resided in for 12 months or more in the last 10 years.

50. The Tribunal notes that the Applicant is from a non-English speaking background, and it is unclear whether he derived any assistance from a representative or interpreter in the completion of these application forms, and if he did not there could be a heightened margin of error.

1. The evidence indicates that the Applicant arrived in Australia as a refugee and that he had limited command of the English language. During his first few years in Australia the Applicant would have been challenged in adapting to and integrating into a new way of life and engaging with systems and processes that would have been foreign to him. These are characteristics that would be intrinsic to the experience of many new migrants to Australia doing their best to adapt to the laws and rules applicable to their new country of residence.

2. The Tribunal when considering the matters that gave rise to character concerns with respect to the Applicant makes the following observation. People fail to comply with directions to wear a seatbelt or improperly dispose of litter every day. People breach individual and commercial agreements all the time. Newly arrived migrants who are expected to provide documents from other countries to the Australian authorities mostly, do their very best to obtain them. In doing so are beholden to the norms and processes applicable in the country from which the documents are obtained, and those norms and processes will often not meet the more rigorous requirements that apply in Australia. 

3. If these issues individually or collectively raised character concerns that inhibited a person’s access to Australian citizenship many current Australian citizens would not meet the character test.  

4. The Tribunal finds that collectively these issues do not impugn the Applicant’s character.

5. The evidence submitted to the Tribunal is that the Applicant is hard-working, that he has successfully sponsored his wife to Australia and is responsible for the care and control of two young children. The Applicant’s representative submits that the Applicant has been the subject of an Australian Federal Police clearance which establishes that our Federal Police authorities have determined that the Applicant is of good character.

6. The Tribunal finds that when each of the character related issues identified by the Minister are considered cumulatively that they do not impugn his character to the extent that he should not be deemed to be of good character at the time of the Ministers decision. The Tribunal accordingly finds that the Applicant is of good character at the time of its decision.

   DECISION

7. The Tribunal sets aside the decision of the delegate dated 7 August 2023 refusing the Applicant’s application for Australian Citizenship, and in substitution the matter is remitted to the Respondent for reconsideration with the following direction:

   (a)That the Applicant is a person of good character, and therefore satisfies the requirements of section 21(2)(h) of the Citizenship Act.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 11 September 2024

Date of hearings:	6 September 2024
Solicitors for the Applicant:	Mohammad Al-Shadidi, Solicitor
Solicitors for the Respondent:	Rachel Guttman, Minter Ellison