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

[2021] AATA 3827

Razai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3827 (22 September 2021)

Division:GENERAL DIVISION

File Number:          2020/7818

Re:Medhi Razai

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:22 September 2021

Date of written reasons:        20 October 2021

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

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

Mr A. Maryniak QC, Member

Catchwords

CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether Applicants have satisfied paragraph 21(2)(h) of Australian Citizenship Act – whether Applicant of good character – false and misleading conduct in dealing with the Australian Government – decision affirmed

Legislation

Australian Citizenship Act 2007 (Cth)

Migration Act 1958 (Cth)

Cases

BOY19 v Minister for Immigration and Border Protection [2019] FCA 574

Grass v the Minister for Immigration and Border Protection (2015) 231 FCR 128

Secondary Materials

Revised Citizenship Procedural Instructions, Chapter 15

REASONS FOR DECISION

Mr A. Maryniak QC, Member

20 October 2021

1. At the conclusion of the hearing of this matter, the terms of the decision and the reasons thereof were stated orally.

2. The oral reasons for that decision have been transcribed by Epiq Australia Pty Ltd. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. An extract of the corrected transcript is Annexure “A” hereunto and furnished to the Applicant and to the Respondent.
   
   

4.           I certify that the following 23 (twenty-three) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member

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

Associate

Dated: 20 October 2021

Dates of hearing:	21 & 22 September 2021
Advocate for the Applicant:	Ms Maria Psihogios
Solicitor for the Applicant:	MP Migration Law
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers

ANNEXURE A

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. MEMBER: This is a review of a decision of a delegate of the Respondent made 25 November 2020 refusing the Applicant Australian citizenship.  The sole issue before the Tribunal is whether, pursuant to s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act), the Applicant is of good character.

2. The evidence considered by the Tribunal comprises the documentary evidence as tendered, which includes multiple statutory declarations from the Applicant, the Applicant’s oral evidence, including under cross-examination, and that of Mr Daniel Cobb, a character witness for the Applicant. The Tribunal has also considered the written and oral submissions of the parties. 

3. The Applicant is a 28-year-old citizen of Afghanistan who arrived as an unauthorised maritime arrival on 4 January 2010. On 15 April 2010, he was granted a Protection Visa. On 30 September 2015, he was granted a Resident Return Subclass 155 Visa, which was subsequently subject to a Notice of Intention to Consider Cancellation under s 109 of the Migration Act 1958 (Cth) dated 12 August 2020 and a subsequent Notice of Decision Not to Cancel under s 109 dated 8 April 2021.

4. Pursuant to s 24(1A) of the Act, the Minister, and in this circumstance now the Tribunal, must not approve an application for Australian citizenship unless the Applicant satisfies the relevant eligibility requirements under s 21 of the Act and in respect of this review, relevantly s 21(2)(h). 

5. The Tribunal must be satisfied that the Applicant is of good character at the time of this decision by forming an opinion requiring an evaluative judgment and by reaching an affirmative belief that the Applicant is a person of good character. This is made clear in BOY19 v the Minister for Immigration [2019] FCA 574 at [54] to [55] (BOY19).

6. In determining good character, the Tribunal is to look holistically at an applicant’s behaviour over time in order to be satisfied of “enduring moral qualities” within the prospective Australian citizen. Such a phrase is guided by the Citizenship Policy Instruction 15 – Assessing Good Character under the Citizenship Act CPI (CPI 15) and encompasses the following:

   (a)characteristics which have been demonstrated over a long period of time;

   (b)distinguishing right from wrong; and

   (c)behaving in an ethical manner conforming to the rules and values of Australian society.[1] 

   [1] CPI, Chapter 15 at [3.3].

7. CPI 15 sets out further examples of characteristics of a person of good character and they do not include those who practice deception or fraud in their dealings with the Australian Government, or other organisations. For example:

   (a)intentionally providing false personal information (such as fraudulent work experience or qualification documents); or

   (b)other material deception during visa and citizenship applications.[2]

   [2] Ibid at [4].

8. The Tribunal notes that s 50 of the Act provides that it is an offence to deliberately make or cause to make a false or misleading statement or conceal circumstances in relation to an application for Australian citizenship.[3]

   [3] Citizenship Act 2007 (Cth) s 50.

9. Finally, the Tribunal is to consider a range of events and conduct connected with the Applicant, as discussed in Grass v the Minister for Immigration and Border Protection (2015) 231 FCR 128 at [60].

10. Respect for the institutions of government, including government departments, is consistent with being of good character in the statutory sense. Such respect can be characterised as a moral quality that is relevant to citizenship as is pointed out by O’Bryan J in BOY19 at [88].

11. Since his arrival in Australia on 4 January 2010, the Applicant has given false information to the Australian Government. The Tribunal puts to one side the issue in respect to the Applicant’s surname, accepting his explanation as to how it originated. Whilst it represents an example of false information given, it is not of primary relevance when compared to the other false information given by the Applicant in respect of his dealings with the Australian Government up to September of 2018.

12. The Applicant gave a false story upon his arrival on 4 January 2010, developing it in his statement dated 20 February 2010. In that statement at paragraph 14, the Applicant informs the Australian authorities:

    About two months later my father, uncle and brother, Hadi were coming from a wedding in Ghazni and were stopped by the Taleban (sic).  My brother had his school paper in his pocket.  The Taleban (sic) cut my brother’s throat and killed him.  He was 16 years old at the time.  The Taleban (sic) shot my uncle and father dead.[4]

    [4] ST-Documents ST8/30.

13. At paragraph 15:

    We didn’t hear anything for two days and then other people from our village found their bodies and brought them back to Hisar.  We hear it was Taleban who did this to them because this is what the Taleban (sic) do to Hazaras and this is how the Taleban (sic) kill.[5]

    [5] Ibid.

14. This forms part of the false story that the Applicant gave to the Australian Government at that time. This false story, together with inconsistencies as to family composition and other aspects of the Applicant’s life story, including whether he had relatives in Australia, continued to be given and developed by the Applicant to the relevant authorities in Australia. For example, false information formed part of his application for Australian citizenship on 2 July 2014. It was repeated on 26 March 2015 and the Applicant further maintained that his father had been killed in 2006, in his statutory declaration of 28 October 2016. Similar false information was again given in a statutory declaration in April of 2018.

15. Whilst the Tribunal understands that the Applicant was young and may have held legitimate fears of being returned to Afghanistan in 2010, it does not accept that such was the case by 2018 after the Applicant had been in Australia for eight years.

16. It is apparent that the Applicant made attempts to correct the record during the 25 September 2018 departmental interview. However, the various falsehoods were not formally addressed until the Form 80 dated 9 June 2020 and associated statutory declaration of 16 June 2020. Further, on the evidence, it is not disputed that the only reason the Applicant was motivated to tell the truth on 25 September 2018 because he was facing identity-related problems during an interview regarding his citizenship application. It was essential for him to be truthful and reveal the lies at that time because they stood in the way of him getting his Tazkira card, which was critical to overcoming problems he was having with the Australian Government in respect of his citizenship application and establishing his identity.

17. On the accepted evidence before the Tribunal, this step by the Applicant to finally “come clean” with the Australian Government was taken purely out of self-interest, hence the truth was only revealed by the Applicant on a self‑serving basis. Up to that point the Applicant had constructed, developed, and repeated false information to the Australian Government on multiple occasions between 2010 and well into 2018.

18. It is clear on the evidence that the Applicant had the assistance of lawyers at various times prior to 25 September 2018 and that, prior to that date, he knew he was lying to the Australian Government, and that that was wrong. In the absence of the Applicant’s self-interest motivating him to make the revelations on 25 September 2018, there is no evidence that the Applicant would otherwise have rectified his false story.

19. His appreciation for not practising deception and fraud in dealing with the Australian Government has only objectively commenced developing since June 2020. It was submitted on behalf of the Applicant that he has been on the trajectory so far as being truthful with the Australian Government since 25 September 2018. However, for the reasons stated above, the Tribunal cannot be satisfied on the evidence that this is the case.

20. The Tribunal notes that the Applicant is now apologetic for his previous misleading actions in dealings with the Australian Government. The Tribunal also notes the character evidence given by Mr Daniel Cobb who has known the Applicant personally since late 2019. Save for the confusing evidence the Applicant gave to the Tribunal orally with respect to the recipient of the AUSTRAC transfer dated 18 February 2015, the Applicant’s oral evidence was consistent with the appreciation he now has developed as to the importance of telling the truth to Australian Government authorities.

21. The Tribunal accepts that he is developing the requisite good character for Australian citizenship, but he is not there yet. At this time, the Tribunal is not satisfied as to his good character as is required according to the established principles discussed above. Insufficient time has passed for the Tribunal to be satisfied that the Applicant has demonstrated characteristics of good character over a sufficiently long period of time.

22. It was made clear during the hearing that it is open to the Applicant to make a further application for Australian citizenship in the future if he is advised to do so. This finding should not deter him from doing so. 

23. On the evidence both holistically and objectively, the Tribunal is not satisfied that the Applicant has the requisite enduring moral qualities at this time. The correct or preferable decision is to affirm the decision under review.