QJHL and Minister for Immigration and Border Protection (Citizenship)
[2020] AATA 1997
•30 June 2020
QJHL and Minister for Immigration and Border Protection (Citizenship) [2020] AATA 1997 (30 June 2020)
Division:GENERAL DIVISION
File Number:2017/1429
Re:QJHL
APPLICANT
Minister for Immigration and Border ProtectionAnd
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:30 June 2020
Place:Brisbane
The decision under review is affirmed.
...............................[SGD] .........................................
Senior Member Theodore Tavoularis
CATCHWORDS
CITIZENSHIP – citizenship by conferral – cancellation of citizenship approval – whether the Applicant is of good character – where Applicant submitted fraudulent document – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Assafiri and Minister for Immigration and Border Protection [2014] AATA 35
Bashi and Minister for Immigration and Border Protection [2016] AATA 453
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Grass v Minister for Immigration and Border Protection & Anor [2015] FCAFC 44
Hneidi v Minister for Immigration [2010] FCAFC 20
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674
Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Australian Citizenship Policy, 1 July 2016
REASONS FOR DECISION
Senior Member Theodore Tavoularis
30 June 2020
INTRODUCTION
On 28 February 2017, a delegate of the Minister for Immigration and Border Protection (“the Respondent”)[1] decided, pursuant to s25 of the Australian Citizenship Act 2007 (Cth) (“the Act”), to cancel the approval of the Applicant’s application for conferral of Australian citizenship. On 13 March 2017, the Applicant filed an application in this Tribunal seeking review of that decision. Ventilation of the instant applicant is facilitated by virtue of s52(1)(c) of the Act.
[1] Now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The primary issue falling for determination is whether the Applicant meets the “good character” requirement stipulated in the Act, such that he, in turn, meets the eligibility requirements for Australia citizenship.
For reasons that follow, I am not satisfied that the Applicant is of good character. As a consequence, the relevant decision under review involving the cancellation of the approval of the Applicant’s application for conferral of Australian citizenship must be affirmed.
BACKGROUND AND RELEVANT TIMELINE
The relevant timeline may be stated thus:
·The Applicant claims to be 28 years of age and consequently claims Afghani citizenship;
·He arrived in Australia on 4 May 2010 holding an Orphan Relative (Subclass 117) visa;
·The visa referred to in the immediately preceding bullet point ceased on 8 March 2015;
·On 3 March 2016, the Applicant was granted a Resident Return (Class BB) (Subclass 155) visa;
·On 2 December 2014, the Applicant applied for Australian citizenship;
·On 25 May 2015, this application for Australian citizenship was approved;
·On 9 February 2016, conferral of the Applicant’s Australian citizenship was deferred;
·As part of that deferral, the Respondent notified the Applicant that he would not be making the necessary pledge (contemporaneous with conferral of citizenship) at any time prior to 11 August 2017;
·The reason for the almost 18 month deferral was that the Respondent “…has received information that means that your subclass BB-155 Resident Return Visa may be considered for cancellation action…”;[2]
[2] Exhibit R3, s37 T Documents, T10, page 48.
·On 1 November 2016, the Respondent issued the Applicant with a notice of intention to consider cancellation of the approval of his citizenship. The Respondent detected a difficulty with an identifying document provided by the Applicant in the course of his application for citizenship. He was notified as follows:
“On 09/01/2015 you provided your original taskera – Number: 889712 to the Department at your citizenship test appointment. The Department checked this document with the Afghan Ministry of Interior who stated that it is not registered in their records and is therefore considered to be fraudulent.
If you have information that shows that this is not the case please provide the information to the Department as soon as possible.
As you appear to have provided a fraudulent document to the Department, you may be considered to be not of good character.”[3];
[3] Ibid, T11, page 51.
·Under cover of its letter dated 30 January 2017, the Respondent invited the Applicant “…to comment on, or provide an explanation about, adverse information that may lead to a decision to refuse to approve you becoming an Austrailan citizen.”[4] In this notification, the Applicant was notified as follows:
[4] Ibid, T15, page 71.
“On 6 January 2017 a copy of the letter provided by you from the Consulate General of the Islamic Republic of Afghanistan in Karachi concerning passport number OR041911, the NAATI translation and a copy of your passport with the number OR041911 were sent to the department’s office in the Australian High Commission in Islamabad.
The Australian High Commission was requested to seek verification of the passport with the Afghan Consulate in Karachi. On 13 January 2017 the Australian High Commission received a response from the Afghan Consulte in Karachi stating the passport is not in their database and is not issued by them and concluded stating the passport is therefore considered Fake/Bogus.
The Afghan Consulate in Karachi has advised the Australian High Commission that your passport is not registered in their system, and therefore considered to be fraudulent. It appears in addition to concerns raised in the Notice Of Intention to Cancel Citizenship Approval sent on 1 November 2016, that you may have provided a fraudulent passport in support of your application for citizenship, and it appears that the letter provided in response to the Notice Of Intention to Cancel Citizenship Approval received on 6 January 2017, purportedly from the Consulate General of the Islamic Republic of Afghanistan in Karachi, also contains fraudulent information, and therefore may also be fraudulent.
If you have information or evidence that shows that this is not the case please provide the information to the Department as soon as possible.”[5];
·Under cover of an email dated 1 February 2017, the Applicant’s representative sought to respond to the Respondent’s abovementioned letter of 30 January 2017. Four documents were enclosed in this responsive letter, with a notation from the representative to the effect that “I hope that these documents will resolve the matters you have raised in your most recent letter and will allow the ceremony for [the Applicant’s] citizenship to proceed as soon as possible.”[6];
·There followed a reply from the Respondent dated 28 February 2017 to this effect:
“I am writing to advise you that the approval of your application for Australian citizenship by conferral has been cancelled under section 25 of the Australian Citizenship Act 2007…
This means that you cannot make a Pledge of Commitment to become an Australian citizen at a citizenship ceremony.
The attached decision record provides the reasons for this decision. Please keep a copy of this letter and the decision record in a safe place for your reference.”[7]
·On 13 March 2017, the Applicant applied to the Administrative Appeals Tribunal (“this Tribunal”) for a review of that decision.
[5] Ibid, T15, page 72.
[6] Ibid, T16, page 78.
[7] Ibid, T18, page 97.
THE LEGISLATIVE FRAMEWORK
The facilitating provision for an application for Australian citizenship is s21(1) of the Act. Section 24(1) of the Act compels the Respondent to, in writing, approve or refuse an application for citizenship. The Respondent is further compelled to refuse an application for citizenship unless the person reaches the eligibility thresholds appearing in s21 of the Act. One of those requirements is that the applicant is eligible to become an Australian citizen if the Respondent is satisfied, inter alia, that the person “is of good character at the time of the Minister’s decision on the application”.[8]
[8] Australian Citizenship Act 2007 (Cth), s 21(2)(h).
However, this is not a case involving a determination of good character pursuant to s21(2)(h) of the Act. Rather, the conflated issues of identity and good character arising from the instant facts mandate that s25(1) of the Act has application. Relevantly, s25(1) of the Act empowers the Respondent to cancel an approval of an application for conferral of citizenship (granted pursuant s24 of the Act) in circumstances where the Respondent is satisfied, at the time of the proposed cancellation of the approval, that the person is not of good character. Section 25(2)(b) of the Act reads as follows:
“Eligibility criteria not met
(2) The first situation applies if:
(a) the person is covered by subsection 21(2), (3) or (4); and
(b) the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is:
(i) not a permanent resident; or
(ii) not likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia; or
(iii) not of good character.”
[My underlining]
Section 25(5) of the Act goes on to provide that if the Respondent cancels an approval granted pursuant to s24 of the Act, the original approval is taken to have never been granted.
The resulting question involves an enquiry into what constitutes “good character”. The Act does not specify the meaning of the words “good character”. However, there is strong authority supporting the principle that the phrase should be used in its ordinary sense. That is, it is 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”.[9] A determination of whether someone is of good character necessitates the “consideration of an aggregate of qualities”.[10] Further, the “enduring moral qualities” of which good character speaks “must be demonstrated objectively over a sufficient period”. The length of time to be considered is not specified; rather, it turns on the circumstances of the individual case.[11]
[9] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 431 (Lee J).
[10] Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326, [7] (Deputy President McDonald).
[11] Assafiri and Minister for Immigration and Border Protection [2014] AATA 35, [67] (Senior Member Toohey).
There is authority for the proposition that the Tribunal can have regard to matters of policy when faced with resolution of the breadth of an aspect of a matter before it, such as, for present purposes, “good character”. In a decision of this Tribunal, in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, His Honour, Brennan J, who was sitting as President of this Tribunal, said determination of an issue as broad as good character warrants:
“…the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice…
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.”[12]
[12] At page 645.
The Minister’s Department issued the Australian Citizenship Policy (“ACP”) on 1 June 2016 to provide guidance to decision-makers on the scope and exercise of their powers under the Act. For present purposes, the relevant part of the ACP is Chapter 11.
The ACP defines “good character” as:
“… the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and other commitments through the pledge should they be approved for citizenship.”[13]
[13] Australian Citizenship Policy, Chapter 11 - Character, page 145 of 237.
Relevantly, for present purposes, the ACP provides 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 their migration and citizenship processes.”[14] [My underlining]
[14] Ibid, page 146.
The requirement of good character goes to the core of the Applicant. Thus, the Applicant’s behaviour is to be regarded as a manifestation of his essential characteristics. Further the ACP notes:
“This broad definition means 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 their migration and citizenship process.”[15]
[15] Ibid.
I note the remarks of this Tribunal in Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931:
“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. … That [the Applicant] is making a concerted effort to turn his life around, is a positive step; however, it will take longer than 5 years for there to be sufficient evidence that his character has been restored to the level required for a grant of citizenship. 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 [the Applicant] of any rights he currently holds, nor does it prevent him applying for citizenship again in a few year's time when he can demonstrate a longer period of positive contribution to the Australian community.”[16]
[16] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8] (Deputy President Breen).
The ACP then sets the characteristics that an applicant of good character would have, including amongst other things:
·“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:
o providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications;
...
·not be the subject of any verifiable information causing character doubts.[17]”
[My underlining]
[17] Australian Citizenship Policy, Chapter 11 - Character, page 147 of 237.
In addition to the above, the ACP establishes a framework within which “good character” decisions should be made. The ACP provides a non‑exhaustive list of factors for decision-makers to take into account in making this assessment. The precise weighting of the factors is dependent on the circumstances of the case. Importantly for the instant decision, the ACP directs decision-makers to take into account whether there are any mitigating circumstances and/or explanation provided by the Applicant that outweigh the behaviour in question.[18] Any assessment of an Applicant’s “good character” requires a decision-maker to consider an aggregate of qualities apparent from the instant factual matrix.
[18] Ibid, page 149 of 237.
The ACP affords assistance to decision-makers involved in the exercise of weighing up a character decision by telling those decision-makers not to apply their own personal standards, but to apply community standards. More specifically, decision-makers must ask themselves the following sorts of questions:
·Would a person of good character have behaved the way the applicant did?
·What is there to demonstrate that the applicant has upheld and obeyed the law?
·Has the applicant behaved in accordance with Australia’s community standards?
·Does the applicant share Australia’s democratic beliefs and respect its rights and liberties?[19]
[19] Ibid, pages 149 and 150 of 237.
Ultimately, the decision-maker “needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time.”[20] The amount of time considered to be “lasting” or “enduring” depends on the merits of the case. This holistic exercise was the subject of discussion by this Tribunal in Prasad and Minister for Immigration and Ethnic Affairs [1994] AATA 326:
“A decision about whether a person is of good character requires the 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.”[21]
[20] Ibid, 10.5.4; and Australian Citizenship Policy, Chapter 11 – Character, page 150 of 237.
[21] At paragraph [7].
ISSUE
At its commencement, this matter purported to involve the ventilation of a range of issues. As the hearing evolved and transpired, the issue for determination by the Tribunal became a singular one: specifically, whether the Tribunal can reach the requisite level of satisfaction that the Applicant is of good character for the purposes of overturning the Respondent’s decision to cancel the approval of the Applicant’s application for conferral of Australian citizenship.
The resulting essential issue may be stated thus: is the Applicant of sufficiently good character such that he satisfies the relevant eligibility criteria to become an Australian citizen?
CONSIDERATION
The Nature of the Ministerial Discretion
For the purposes of the instant application, the Tribunal assumes the role of the Respondent and must satisfy itself that at the relevant time of cancellation – for the present purposes of determining this application this means the present time – the Applicant is not of good character.
In Grass v Minister for Immigration and Border Protection & Anor [2015] FCAFC 44 the Full Court has (relatively) recently described the relevant power to be exercised pursuant to s25 of the Act, specifically, the revisitation or revoking of a citizenship approval that has been previously granted:
“58. Section 25(1) to be read with s 25(2) and (3), is designed to empower the Minister to revisit the citizenship approval previously granted. Relevantly, s 25(1)(b), read with s 25(2), is designed to empower the Minister to revisit a person’s satisfaction of the eligibility criteria, presumably because of the receipt of new or different information, or to correct administrative error in the approval process…
59. The third matter (and the one relied on by both delegates in respect of the appellant) – whether at the time the Minister proposes to cancel the approval the Minister is satisfied that the person is not of good character – is also a criterion which allows for changes of circumstances in between the granting of an approval and a person in fact taking the pledge of commitment. There may be a genuine change in circumstances, for example, prosecution for a criminal offence, or there may be new information available to the Minister, or an error in the way material was considered at the time of the grant of approval may have come to light. It seems to us the text and context of the provision do not suggest any narrow approach should be taken to the circumstances which might give rise to a reconsideration of the “good character” of a person holding a citizenship approval. Whether, after full and proper consideration, affording natural justice and determining the matter according to law, the approval is, in fact, cancelled is another question altogether. For the moment, the only concern is how the scheme is intended to operate, not the outcomes which might be delivered on any particular set of facts.
60. Another indication of the breadth is that the term “good character” is not defined in the Act…No doubt some of the matters in the eligibility criteria in s 21 of the Act may inform the construction of the term “good character”, but 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…it is important to note the absence of a definition and, again, the legislative decision to leave room to the repository of the cancellation power to reconsider a range of events and conduct connected with the person who has been granted a citizenship approval.”[22]
[My underlining]
[22] At paragraphs [58], [59] and [60].
A decision-maker can only ignore the provisions of a policy document if there are “cogent reasons” militating against its application to the instant facts. In Hneidi v Minister for Immigration [2010] FCAFC 20, the Full Court referred to Brennan J’s decision in Drake and noted:
“…Brennan J was dealing only with the review of a Minister’s order and the question of what part the policy statement promulgated by the Minister should play in considering the circumstances of the case. No occasion arose for a determination of any difference between the role of the departmental and Ministerial policy in the consideration of that question.
The principle for which Drake (No 2) is authority is well established. It is that where a Minister has adopted a general policy as a guide to the exercise of a discretionary power, the Tribunal will consider an argument against its application to the facts of the case, but “cogent reasons” will have to be shown against its application...”[23]
[23] At page 121, paragraphs [47] and [48].
While I have earlier summarised the relevant portions of the ACP, the decision of Deputy President Alpins of this Tribunal in Bashi and Minister for Immigration and Border Protection [2016] AATA 453 is helpful in understanding the nature of the ministerial discretion specifically bestowed by s25 of the Act:
“77. It is a prerequisite to the exercise of the Minister’s discretion under s 25(1) of the Act to cancel an approval given to a person becoming an Australian citizen (under s 24), that, relevantly to this case, the Minister is satisfied that, at the time the Minister proposes to cancel the approval, the person is “not of good character”. Accordingly, the Minister, and therefore the Tribunal upon review, must reach the requisite state of satisfaction for the purposes of s 25(2)(b)(iii) before then considering the exercise of the discretion under s 25(1)…
…
- While the terms of s 25(1) bestow a discretion on the Minister, and therefore the Tribunal upon review, the terms of s 25(2)(b)(iii) do not. The “question whether a person is or is not of ‘good character’ is primarily an issue of fact” (Irving v Minister for Immigration , Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422 at 424 per Davies J). Section 25(2)(b)(iii) requires that the Minister and, on review, the Tribunal be “satisfied” that, at the time of proposing to cancel the approval, “the person is ... not of good character”. The decision-maker is obliged to consider and decide whether they are properly satisfied of that factual matter; the possibility of alternative findings being made does not make that decision a discretionary one (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [127]-[128] per Gummow J). However, satisfaction of that the criterion in s 25(2)(b)(iii) will bear upon the issue of whether the discretion to cancel an approval in s 25(1) is enlivened.
- The expression “good character” in s 25(2)(b)(iii) is not defined in the Act and therefore should be taken to bear its ordinary meaning, “namely, a reference to the enduring moral qualities of a person” (Irving at 431-432 per Lee J, approved by the Full Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197; cf. Irving at 425 per Davies J)
- The making of false and deceptive statements by an applicant for citizenship to government agencies would tend to suggest that that applicant is not of good character, particularly where the falsehood is repeated and perpetuated over a significant period of time (see Al Temimi v Minister for Immigration and Border Protection [2014] AATA 97 at [38]; Tacalan v Minister for Immigration and Border Protection [2014] AATA 767 at [16]); Amosa and Minister for Immigration and Border Protection [2015] AATA 55 at [58]; Zheng and Minister for Immigration and Citizenship [2011] AATA 304 at [132]).
- As Deputy President McMahon observed in Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35]:
“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercise in visa applications when dealing with the many reasons for coming to Australia. To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character. Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld”.
- I consider those remarks to be germane to applications for citizenship and to the construction and application of s 25(2)(b)(iii) of the Act.”[24]
A Consideration of the Evidence
[24] At paragraphs [77], [79], [80], [82], [83] and [84].
The starting point in any analysis of the evidence is 1 November 2016. On that date, the Applicant was notified of the Respondent’s intention to consider the cancellation of the earlier approval of his citizenship application. The reason provided for the stated intention was that the Applicant did not meet the necessary eligibility criteria. He was told “As you appear to have provided a fraudulent document to the Department, you may be considered to be not of good character.”
This notice was met by a statutory declaration made by the Applicant on 1 February 2017. The contents of that statutory declaration are directly relevant to any assessment of the Applicant’s character. He said:
“…
1. I am a person of good character with no criminal record.
2. I have not provided any false documents at any time to the Australian Government.
3. The two Afghan passports issued to me by the Afghan Government representatives in Karachi and Canberra are genuine.
4. On 31 January, 2017 I flew from Brisbane to Canberra and obtained a letter of certification that both my Afghan passports are genuine, and accepted as such, from…, the Consul of the embassy of Afghanistan in Canberra. That letter accompanies this Statutory Declaration.
5. The allegations that I have “purportedly” provided “fraudulent/fake/bogus” documents and information to the Australian Government are unsubstantiated and untrue and have caused me considerable mental stress and anguish as well [sic] unwarranted financial costs.”[25]
[My underlining]
[25] Exhibit R3, s37 T Documents, T17, page 95.
Importantly, the statutory declaration provides on its face that the maker of the statutory declaration containing false statements becomes “…subject to the penalties provided by…” the legislation governing the making of those documents. The document makes clear that the Applicant made this statutory declaration “conscientiously believing the statements contained in this declaration to be true in every particular,” [My underlining].
Prior to making the aforementioned statutory declaration, the Applicant was made fully aware of the “fraudulent document” causing the Respondent to question his good character. In particular, the Applicant was told:
“On 09/01/2015 you provided your original taskera – Number: 889712 to the Department at your citizenship test appointment. The Department checked this document with the Afghan Ministry of Interior and stated that it is not registered in their records and is therefore considered to be fraudulent.”
It is, to my mind, notable that although the specific document (taskera number 889712) was notified to the Applicant as being the disputed taskera, he makes absolutely no reference to it in his statutory declaration of 1 February 2017, propounding that he has “…not provided any false documents at any time to the Australian Government.” On any reasonable reading of the aforementioned statutory declaration seeking to ameliorate the Respondent’s detected deficiency in the Applicant’s documents, there is no reference to the disputed taskera and no explanation is offered for the Respondent’s misgivings.
The circumstances surrounding the Applicant’s obtaining of taskera numbered 889712 would have been surely known to him at the time he made the abovementioned statutory declaration. Obviously, he had previously provided this document to the Respondent as part of his application. Yet he says nothing of an explanatory or ameliorative nature regarding the concern the Respondent raised about the subject taskera.
The situation does not improve when one has regard to the evidence provided by either family members of the Applicant or others in his immediate circle. An initial observation is one of a certain level of apprehension about the state of evidence sought to be adduced on behalf of the Applicant. For example, the makers of the respective statutory declarations recorded as Exhibits A3 and A4 in these proceedings each contain 11 paragraphs. They both claim to be “full blood brothers” of the Applicant. When one compares the two statutory declarations, the 11 paragraphs are virtually identical. The only real difference is that the former was declared on 19 December 2017, while the latter was declared the day before.
In submissions, the Respondent’s representative[26] made reference to the proposition that where the wording of one sworn document replicates another, it is highly suggestive of either (1) collusion between the witnesses or (2) that the person drafting the document has not used the actual words of one or both of the deponents. This contention is based on the comments of Palmer J in Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674:
“Save in the case of proving formal or non-contentious matters, affidavit evidence of a witness which is in the same words as affidavit evidence of another witness is highly suggestive either of collusion between the witnesses or that the person drafting the affidavit has not used the actual words of one or both of the deponents. Both possibilities seriously prejudice the value of the evidence and Counsel usually attacks the credit of such witnesses, with good reason.”[27]
[My underlining]
[26] Ms A Wheatley of Senior Counsel.
[27] At paragraph [90].
As noted by Palmer J, the purported reliance upon virtually identical sworn documents serves to seriously impugn both deponents. The only explanation that the maker of Exhibit A4 could provide for the significant similarity between the documents was that his brother (the Applicant in this proceeding) arranged for preparation of the document and simply presented it to him for signing. I therefore have very significant misgivings about the veracity of, and any weight that can be meaningfully attributed to, the evidence appearing at Exhibits A3 and A4 provided by the Applicant’s two brothers.
The situation does not improve much further when one has regard to the content of Exhibit A6, which comprises a statutory declaration made by the Applicant’s cousin. In this document, the Applicant’s cousin reveals that their respective fathers were brothers and that he is also the Applicant’s brother-in-law because he married the Applicant’s sister. This statutory declaration of the Applicant’s cousin/brother-in-law (Exhibit A6) has nothing to say about the circumstances in which the Applicant came to be in possession of a disputed taskera. Given (1) their common heritage and (2) that this witness (and his wife) sponsored the Applicant and his two brothers (i.e. the deponents of Exhibits A3 and A4) to travel to Australia, it is surprising that this witness (i.e. the maker of Exhibit 6) has nothing to say about the disputed taskera and how the Applicant may have come to be in possession of it.
The highest this evidence in Exhibit A6 goes is for the deponent to say:
“9. As refugees living in Pakistan at that time there was no other avenue open to them to acquire an Afghan passport than to apply to the Consulate-General in Karachi for one to be issued ot [sic] each of them because they were unable to return to Afghanistan.
10. I believed then, and I believe now, that the Afghan Consulate-General issued all three of my cousins, with genuine documents which established their identities as citizens of Afghanistan.”
Having regard to the totality of this statutory declaration, I attribute minimal, if any, weight to it. I do likewise with regard to the respective statutory declarations (Exhibits A3 and A4) of the Applicant’s brothers.
Turning to the evidence of the Applicant, I think it is best understood by having regard to the sequence or timeline relating to how the subject documents came to be in his possession. First, he said he made an initial visit – in or about April or May 2008 - to the consulate to obtain an idea of the necessary documentation he had to collate. Second, about a week or two later, he said he made a further visit to the consulate (this time with his brothers) on which occasion the relevant applications were made. Third, there was an approximate seven week delay by the time of his further visit to the consulate to physically collect the documents.
Difficulties arise in the Applicant’s evidence because the dates on which he said certain things occurred do not match up with the dates appearing in documents or the dates on which people seeking to corroborate his evidence say those things occurred. First, there is the difficulty arising from the evidence that the Applicant’s sister made a telephone call to him in late 2007, notifying him of the necessary requirements to facilitate his passage to Australia. Yet on the Applicant’s evidence, we are told that he waited for a number of months (until April/May of 2008) before commencing the process she had described to him.
Second, the Applicant acknowledged[28] that his initially propounded date of receipt of the documents (i.e. July 2008) must have been incorrect, because it contradicts his statutory declaration (Exhibit A12), in which he deposes: “I received the taskera in April, 2008.”
[28] Transcript dated 18 July 2018, page 52, lines 41-46 and page 53, lines 1-6.
Third, the most serious inconsistency arising from the Applicant’s version of events becomes clear when one has regard to the disputed taskera that he says he collected and which was provided to the Respondent as part of the subject application. The taskera has an issue date of 7 October 2007. It is thus practically impossible for the Applicant to have made an application in March/April 2008 for a document that had been issued in October 2007.
I accept the contention made on behalf of the Respondent: these are not simply matters of inadvertent misunderstanding. The only interpretation of the evidence is that it is not sustainable and not true. In these circumstances, the implausible and inconsistent state of the evidence surrounding how the Applicant came into possession of these documents (including the disputed taskera), does not satisfy me of his good character.
While perhaps not at the same level of implausibility and inconsistency, there are other vagaries in the evidence which militate against its reliability and, ultimately, impact upon character concerns relating to the Applicant. There are clearly vagaries between the respective statutory declarations of his brothers – specifically, Exhibits A3 and A4. It should be recalled that all 11 paragraphs in each of these two statutory declarations are virtually identical. In paragraph 4, the deponents say that they accompanied the Applicant to apply for the taskeras and the passports. Both deponents also say that they were accompanied by two witnesses comprising elders from the Afghan refugee population in Karachi. The role of the elders was apparently to attest to the identities of the three brothers as sons of their deceased father.
In his oral evidence at the hearing, the elder brother (the maker of the statutory declaration at Exhibit A4) recalled that on the first visit to the consulate, he was accompanied by his brother (the Applicant) and the two witnesses/elders. He was asked whether anyone else accompanied him on this first visit to the consulate, but did not recall that his younger brother (the maker of the statutory declaration at Exhibit A3) was with him, yet in Exhibit A4, the elder brother deposes to the younger brother (deponent of Exhibit A3) being present.
The same vagary arose with regard to the evidence of the younger brother (the deponent of Exhibit A3). When asked if, in addition to the Applicant and the two elders/witnesses, anyone else accompanied him on this first consulate visit, he could not recall that his older brother (the deponent of Exhibit A4) was present – as he deposed in his statutory declaration.
These vagaries and inconsistencies in the evidence of the Applicant’s two brothers reflect poorly upon their evidence in terms of its credibility and any weight attributable to it. To my mind, the lack of cogency and consistency in the evidence of his brothers adversely impacts on the character of the Applicant. This is his application, involving the weighty matter of the conferral of citizenship upon him by another country. The refusal decision of that citizenship is obviously something he has taken very seriously, because he has brought it to this Tribunal. It follows that his preparation for, and propounding of, this application to set aside the subject decision must also be a matter of significance to him. Yet the state of the evidence does not match the apparent level of seriousness with which the Applicant has challenged the refusal decision.
I turn now to the evidence relating to the specific document in question, namely, taskera number 889712. Two witnesses gave evidence on this issue, Mr Abbas Farasoo, on behalf of the Applicant,[29] and Mr Matthew Scott Corbin, on behalf of the Respondent.[30] Mr Corbin is employed by the Department of Home Affairs (“the Department”) at the Australian Consulate General in Dubai. He works as a Consul (Immigration)/Migration Integrity Officer and has held this position since January 2017, having initially commenced employment with the Department in February 2002.
[29] See Exhibit A2.
[30] See Exhibit R2.
In his stipulated role, Mr Corbin oversees the management of visa and citizenship integrity activities across Middle East Gulf countries, including Afghanistan. Importantly, Mr Corbin’s function involves management of the Dubai Integrity Unit (“DIU”). Relevant for present purposes, the DIU coordinates “checks and verifications with relevant Afghan authorities on information/documents provided by clients in support of their visa or citizenship applications.”[31] It acts as the central “coordination point for all verification requests on Afghan tazkiras with the Afghan Population Registration Directorate in Kabul.”[32]
[31] Ibid, paragraph 5.
[32] Ibid, paragraph 6.
In other words, the status of the subject taskera number 889712 is squarely within the expertise and experience of Mr Corbin. He adds:
“7. The DIU authored and updated [information report name redacted] (Information Report), which outlines information and details about the Tazkira…the primary identity document for Afghan citizens, and the verification process. The information in the Information Report is based on open source information and information provided by the Population Registration Directorate.
8. I was responsible for overseeing the preparation and release of the Information Report.”[33]
[Emphasis in original]
[33] Ibid, first page.
Mr Corbin reviewed the two statutory declarations provided by the Applicant in this matter, respectively dated 23 June and 27 July 2017, in which the Applicant details how he apparently obtained his taskera. The primary purpose of Mr Corbin’s evidence is to “highlight matters contained in the Information Report in conjunction with the evidence given by the applicant and matters within [his] own knowledge.”[34]
[34] Ibid, second page, paragraph 10.
In his statutory declaration made on 23 June 2017, the Applicant says that he applied for the subject taskera in March 2008 at the Afghan Consulate-General in Karachi, Pakistan. According to Mr Corbin, “At the time of issue (in March 2008), it was not possible for Afghan citizens outside of Afghanistan to apply for a Tazkira through an Afghan Embassy/Consulate.”[35] [My emphasis and underlining].
[35] Ibid, paragraph 11.
Even more fatally for the Applicant, Mr Corbin notes:
“While it is acknowledged that the applicant may have approached the Afghan Consulate-General in Karachi, Pakistan to obtain the Tazkira, Afghan Embassies or Consulates have never held the authority to issue Tazkira’s [sic]. The Afghan Population Registration Directorate is the only authority able to legally issue Tazkira’s [sic]. As a result, any Tazkira that has not been obtained through the Population Registration Directorate is not considered to be a valid Tazkira.”[36] [My emphasis and underlining]
[36] Ibid, paragraph 12.
Mr Corbin also casts doubt on the Applicant’s method of approach towards the Afghan Consulate-General in Karachi at the time the Applicant says he liaised with that office to acquire the disputed taskera. It will be recalled that the Applicant spoke of his father being deceased and that he had with him two witnesses/elders of the local Afghan community to attest to his identity. He also said that he had two members of his immediate family with him – his brothers – at the time of liaising with the Afghan Consulate-General in Karachi.
According to Mr Corbin, the usual procedure was that an applicant’s father or another male adult member of the applicant’s immediate family would support the application for a taskera by attesting to the applicant’s identity. Mr Corbin says:
“13. …It is not, and never has been possible for friends to attest to a person’s identity to obtain a Tazkira.
14. The process followed by the applicant to obtain his Tazkira, as declared by the applicant (by relying on two witnesses to attest to his identity) is not a process accepted by the Population Registration Directorate.
15. An applicant is required to present their father’s Tazkira or the Tazkira of an elder brother or paternal uncle as supporting documentation for their application – to enable verification again held records prior to registering and issuing a Tazkira.
16. In the case of the applicant, there is no evidence that the applicant provided his father’s Tazkira (or the Tazkira of another paternal male family member) as part of his Tazkira application. A Tazkira cannot be issued without paternal records.”[37]
[My underlining]
[37] Ibid.
Mr Corbin oversaw the process whereby the disputed taskera was sent to the Population Registration Directorate for verification against official records. Mr Corbin says:
“17…The outcome of this verification was that the Tazkira provided by the applicant was ‘not registered and it is fraudulent.’
18. This outcome indicates that the Tazkira is not recognised as being valid by the Population Registration Directorate, the only authority able to validly issue Tazkiras.”[38]
[38] Ibid.
Mr Farasoo is both a permanent resident of Australia and a citizen of Afghanistan. From May 2014 to May 2017 he was employed as a Diplomat in the Embassy of Afghanistan in Canberra posted to Australia and New Zealand. He was previously employed in the Afghan Ministry of Foreign Affairs in Kabul, Afghanistan, from October 2008 to September 2014.
He said he has perused the findings in the Information Report. Annexure A2 to his statutory declaration made on 23 February 2018 comprises his commentary on the Information Report. He predicates his findings that his comments appearing in Annexure A2 “is not written by me in any official capacity, nor is it endorsed by the Afghan government in any way. It is written from my own personal and professional knowledge and belief.”[39]
[39] Exhibit A2.
I will briefly summarise the various bases upon which Mr Farasoo purports to impugn the findings appearing in the Information Report:
·The registers are not organised as they are mentioned in the report;
·“In recent years, some hospitals in Kabul have been issuing a birth certificate for newborn children which the parents can use for a Tazkira with a clear date of birth. The document is important only for registration of date of birth of the child in the Tazkira. However, this is not a mandatory process and is usually restricted in places like Kabul…”;
·“The central PRD office in Kabul holds some of Tazkira records, but because of war, insecurity and poor bureaucratic capacity it has not been able to gather all provincial records. As a result, based on my own personal observation, the PRD officials in Kabul usually make phone calls to check the records of applicants’ in the provincial offices…”;
·The Information Report “fails to incorporate the effects of record fragmentation, institutional failures, insufficient bureaucratic procedure, three decades of war, and population displacement, and administrative changes in provincial levels…”;
·The Information Report makes generalised statements regarding the distinction between Pakistani and Afghan Hazaras;
·The Information Report does not provide “an accurate assessment for many Afghan refugees in Pakistan. A large number of Afghan refugees lived among their host co-ethnic communities as were the case for the vast majority of the Hazaras.”[40]
[40] Annexure A2 to the Statutory Declaration of Mr Farasoo, captured as Exhibit A2.
Mr Corbin reviewed the comments of Mr Farasoo and, to my mind, made the following prescient observations. Mr Corbin noted that:
·Mr Farasoo’s statement is “not written in any official capacity”, “nor is it endorsed by the Afghan government in any way”;
·Mr Farasoo’s statement is based on his “own personal and professional knowledge and belief”;
·Mr Farasoo has not declared any personal involvement in the process of issuing taskeras despite his various roles at the Afghan Embassy in Canberra;
·Mr Farasoo has not declared that taskeras were issued by or at the Embassy of Afghanistan in Canberra;
·Mr Farasoo’s comments and accompanying curriculum vitae do not indicate he has worked at the Afghan diplomatic missions in Iran or Pakistan. As a result, says Mr Corbin, Mr Farasoo’s views about the issuing of official documents such as passports and taskeras in Pakistan and Iran are based on his own understanding or belief as opposed to any relevant professional experience;
·Mr Farasoo’s comments about the issuing of taskeras at Afghan diplomatic missions in Iran or Pakistan are incorrect;
·Mr Farasoo’s comments about taskera registration and verification processes undertaken by the Population Registration Directorate do not align with information provided by the Population Registration Directorate itself and contained within the Information Report;
·In his (Mr Corbin’s) opinion, which is based on the DIU’s daily interactions with the Population Registration Directorate, Mr Farasoo’s understanding and belief does not align with actual practice and is incorrect;
·Mr Farasoo’s comments do not refute that the Population Registration Directorate is the only authority able to validly register and issue taskeras;
·Mr Farasoo’s comments indicate that he is aware that taskeras not registered and issued by the Population Registration Directorate are not recognised as being valid taskeras.[41]
[41] Exhibit R2, third page, sub-paragraphs a-f, and h.
Mr Corbin accepts that Mr Farasoo’s comments regarding challenges in maintaining a civil registry in Afghanistan “are valid to a point (that is, that it has traditionally been a manual process that has been impacted by insecurity and civil war).” However, says Mr Corbin, “these issues do not alter the circumstances of the Applicant and the process through which he claims to have obtained his taskera – a document that the Population Registration Directorate has confirmed is not recognised as valid.”[42]
[42] Ibid, sub-paragraph i.
My impression of the totality of Mr Farasoo’s evidence is that he is not in a position to provide the best evidence in relation to the disputed taskera, because (1) he has never worked in the Population Registration Directorate, and (2) the primary focus of his evidence was on the position relating to the issuing of taskeras after 2017, which, of course, significantly post-dates the purported issuing of the disputed taskera. Further, Mr Farasoo’s evidence, although well-intended, seemed to comprise more a narrative of his own experience and observations, as opposed to providing any direct evidence on the specific issue of the validity of the disputed taskera.
To the extent of any discrepancy between the evidence of Mr Corbin and Mr Farasoo, I prefer the evidence of Mr Corbin. The specific issue of the validity of the disputed taskera is squarely within the expertise of Mr Corbin and he never wavered from his clear and unequivocal evidence that it was not possible to obtain a taskera outside of Afghanistan in 2007 or 2008. Indeed, the position relating to the issuing of taskeras since 2017 does, to an extent, represent a slight convergence between the evidence of Mr Corbin and Mr Farasoo. As noted by Mr Corbin, since January 2017 (and very differently from the position that applied in 2007-2008) one can now apply for a taskera but any such application is still required to be vetted through the Population Registration Directorate process.
Having considered the totality of the evidence before me, I am of the view that the level of inconsistency, inaccuracy and untruthfulness is such that those deficiencies are not capable of resolution. The high point of those deficiencies comprises the Applicant’s contention that he applied for certain documents in March 2008 when the disputed taskera has an issue date of October 2007. None of the purportedly supportive evidence from the Applicant’s witnesses serves to ameliorate – and indeed, perpetuates – those evidentiary deficiencies. To my mind, the expert and definitive evidence of Mr Corbin was not challenged in any material way by that of Mr Farasoo and I am more than content to agree with Mr Corbin’s evidence to the effect that it was not possible to obtain a valid taskera outside of Afghanistan in the period 2007-2008.
Does the Applicant meet the “good character” requirements of s25(2)(b)(iii) of the Act?
In the decision under review, the delegate predicated their reasons on two grounds: (1) that the Applicant submitted a non-genuine and fraudulent taskera in support of his application for citizenship, and (2) the Applicant’s provision of, and reliance upon, this fraudulent documentation led to serious doubts about his identity.
As alluded to earlier, this is an application involving conflated issues of identity and good character. While the issues may be conflated, resolution or clarification of one issue does not automatically result in the same outcome for the other. It emerged during the hearing that the Applicant has now filed apparently correct and genuine documentation. The fact that the Applicant has now submitted correct and genuine documentation does not change the position that the documents he originally submitted were fraudulent. The new documents do no more than establish the true identity of the Applicant. These new documents do not displace a finding that his original conduct of lodging fraudulent documents with the Respondent rendered him a person not of good character for the purposes of determining the instant application.
It would appear that the evidence of Mr Corbin obtained for the hearing convinced the Applicant to accept the non-genuine nature of the taskera upon which he (the Applicant) originally sought to base his application for Australian citizenship. Be that as it may, in his evidence throughout the hearing, the Applicant propounded a position of the now-fraudulent taskera[43] being genuine. While the Applicant may contend in closing submissions filed on his behalf that he “…has accepted that the taskera which he provided to the department over 10 years ago is not a genuinely registered document…”[44] this Tribunal has not granted leave to the Applicant to put forward any further evidence to this effect. His evidence throughout the hearing was that the documents were genuine and he conducted the application on this basis.
[43] Consequent upon the totality of the evidence, fatally (for the Applicant) augmented by the evidence of Mr Corbin.
[44] Exhibit A14, Applicant’s Written Submissions, page 6.
Such conduct is not supportive of a finding that the Applicant is a person who “has demonstrated good enduring/lasting moral qualities that are evident before their [citizenship] application and throughout their migration and citizenship processes,”[45] – such that he can now be found not to be a person who is not of good character. I do not find that the Applicant’s conduct in propounding the patently fraudulent documents to be genuine constitutes conduct in accordance with Australia’s community standards. He did not, as any reasonably-minded member of the Australian community would, make a timely submission that he, for example, had made a mistake and that, through his filing of correct and genuine documents, he sought to rectify that error. Instead, up to and at the hearing he propounded the genuineness of the relevant documents, well-knowing the documentation was fraudulent and unsustainable.
[45] Australian Citizenship Policy, Chapter 11 - Character, page 146.
Critically, to my mind, the conduct of the Applicant is particularly egregious and incapable of support in circumstances where he purported to maintain and propound a position that the now-fraudulent taskera was genuine, yet he has seen fit to file new, correct and genuine documents before this Tribunal delivers its decision. As noted by the Respondent (with whom I agree), “It is this lack of candour which supports the finding that the Applicant is not of good character.”[46] The time for considering the good character of this Applicant is at the time of this Tribunal’s decision in this application. If the Applicant genuinely sought to ameliorate his position with regard to a concession about the rejected documents, the time to do so has long-passed.
[46] Exhibit R5, Respondent’s Written Submissions in Reply, page 3, paragraph 14.
While I accept the Applicant may have been under the age of 18 years at the time the now-fraudulent taskera came into his hands, he was nevertheless of an age to meet the requirements of the ACP to demonstrate his good character by being truthful and not practising deception or fraud in his dealing with the Respondent. He has clearly provided false documentation to the Respondent in support of his original application for citizenship. He only changed his position when the evidence of Mr Corbin decisively established that the subject taskera was fraudulent, whereupon the Applicant realised the gravity of that evidence and the extent to which it raised serious doubts about his character.
Model Litigant Obligations
There is a post-hearing contention made on behalf of the Applicant that the Respondent’s representatives have somehow breached their model litigant obligations in relation to the transcript:
“It is also submitted that the Respondent, as model litigant, should have provided the Applicant with a copy of the transcripts of the two Hearings of the Tribunal, given that the Respondent commissioned those transcripts and the Applicant was disadvantaged at the time of the second Hearing by not having the same access to the Transcripts as did the Respondent. The Applicant was disadvantaged by not having access to the transcripts which he advised he could not afford.
…
It is submitted…that the Respondent’s refusal to make available to the Applicant a copy of the transcripts commissioned by the Respondent [was] in breech [sic] of the Respondent’s responsibility as model litigant.”
[Emphasis in original]
The conduct of the Respondent’s representatives in relation to the transcript and in terms of their conduct in every other aspect of this matter indicates nothing of the sort. The Applicant’s contention proceeds on a fundamental misconception about the nature of proprietorial rights in relation to the transcript. The producer of the transcript asserted – correctly, pursuant to the Copyright Act 1968 (Cth) – that:
“Copyright in Transcript is owned by the Commonwealth of Australia. Apart from any use permitted under the Copyright Act 1968 you are not permitted to reproduce, adapt, re-transmit or distribute the Transcript material in any form or by any means without seeking prior written approval from the Administrative Appeals Tribunal.”[47]
[47] See the front or covering page of each portion of the Transcript of this proceeding.
The “you” referred to in the copyright notation is, of course, the Respondent. Put simply, it was not the Respondent’s Transcript to give to the Applicant or anyone else. Ultimately, the matter goes nowhere because the Tribunal made an order that the transcripts be made available to the Applicant. Accordingly, there is no breach of the Model Litigant Rules by the Respondent’s representatives.
CONCLUSION
Accordingly, I am not satisfied on the basis of the material before me that the Applicant is of good character for the purposes of s25(1) of the Act. Consequently, he is not presently eligible to become an Australian citizen.
The outcome of this application does not prevent the Applicant from again applying for Australian citizenship at some point in the future. There is every indication that a subsequent application will be based on correct and genuine documentation that, in turn, will more readily facilitate satisfaction of the criteria in the Act and the ACP necessary for the grant of Australian citizenship.
DECISION
The correct or preferable decision is to affirm the delegate’s decision under review.
I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis
.............................[SGD]..........................................
Associate
Dated: 30 June 2020
Date(s) of hearing:
Closing written submissions:
Closing written submissions:
18 July 2018 and 29 October 2018
Received from Applicant on 2 September 2019
Received from Respondent on 29 September 2019
Advocate for the Applicant: Ms M Le Advocate for the Respondent: A Wheatley QC Solicitors for the Respondent: Sparke Helmore, Lawyers
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