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

[2021] AATA 2121

Shah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2121 (28 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/0862

Re:Gul Shah

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member M Kennedy

Date:28 June 2021

Place:Adelaide

The decision under review is set aside, and remitted to the Respondent for further consideration in accordance with the direction that the applicant is of good character for the purposes of paragraph 21(4)(f) of the Australian Citizenship Act 2007 (Cth).

……………[Sgnd]………………

Member M Kennedy

CATCHWORDS

CITIZENSHIP – application for Australian citizenship – whether Tribunal satisfied Applicant is of good character – false statements – moral qualities of Applicant – decision under review set aside and remitted

LEGISLATION

Australian Citizenship Act 2007 (Cth)

CASES

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

Fenn V Minister for Immigration and Multicultural Affairs [2000] AATA 931

Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082

SECONDARY MATERIALS

Australian Citizenship Policy Statement, Department of Immigration and Border Protection, 27 November 2020

REASONS FOR DECISION

Member M Kennedy

28 June 2021

Introduction

1. This review is concerned with the refusal of an application for Australian citizenship by conferral on the grounds that the Minister was not satisfied that the applicant, Ms Shah, was of good character. Essentially, it is argued that I ought not be satisfied that Ms Shah is of good character because she knowingly made false statements to the Department, in an application form and at interview, pertaining to her son’s marital status so as to secure for him the grant of a visa which he was not eligible for otherwise.

2. There is a single issue for determination by the Tribunal in this matter: am I satisfied that Ms Shah is of good character? This question arises in Ms Shah’s case by virtue of paragraph 21(4)(f) of the Australian Citizenship Act 2007 (Cth) (the Act) which provides that a person over the age of 60 is eligible to become an Australian citizen if (among other requirements not in issue in this review) the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application. If I am not so satisfied, the application for Australian citizenship must be refused.

   Overview

3. I have found the observations of the Federal Court in BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 (BOY19) to be instructive as to the context and concept of good character in citizenship matters, and the standard of satisfaction upon which my decision must turn. In that matter, at paragraph 51, the court distilled three principles from earlier authorities about the meaning of the expression “good character”.

4. First, the phrase “good character” refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person within the community (although the latter may be evidence of the former). 

5. Second, the expression does not have a fixed and precise content, but rather imports a discretionary value judgement to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions.

6. Third, and as a corollary to the second, judgement is required as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.

7. In this matter, Ms Shah admits that she had declared her son as unmarried when she lodged an application for her partner visa and again at a subsequent interview. Ms Shah admits that this was not accurate, and has provided an explanation about why she made those statements consistent with the false statements being purposeful and directed towards achieving a migration outcome for her son.

8. Consistently with the second and third principles identified in BOY19, I must decide whether the false statements amount to deficiencies in the moral qualities of Ms Shah, in the context of the subject matter, scope and purpose of the Act, sufficient to deny her citizenship at this time.

   Background

9. Ms Shah is a national of Pakistan and is of Hazara ethnicity. In May 2014, she arrived in Australia as the holder of a Partner - Provisional Class UF (subclass 309) visa. She was sponsored by her husband who at that time held a permanent protection visa. Ms Shah arrived in Australia with her son Altaf and daughter Saliha. Another son, Asif, was already in Australia.

10. Ms Shah applied for the subclass 309 and Class BC (Partner – Migrant) (subclass 100) visa on 28 December 2012 at the Australian High Commission in Islamabad. At question 38(4), in respect of Altaf, the application form is marked ‘never married or been in a de facto relationship’. In her statutory declaration, confirmed in her evidence to the Tribunal, Ms Shah has acknowledged that this information was incorrect. Altaf was in fact married at that time. 

11. Ms Shah was interviewed by the Department on 22 April 2014. Although I do not have records of that interview, during cross examination, Ms Shah agreed that the false statement was repeated at the interview.

12. Ms Shah said, in response to my question about whether she knew she was making false statements in this regard, that at the time she made the statements, everything in her life was black and white, and the only thing she was thinking about was her wish to save her son.

13. Altaf was granted the visa as a secondary visa applicant.

14. In order for the visa to be granted on that basis, Altaf needed to fall within the definition of a ‘member of the family unit’ of the primary visa applicant, Ms Shah. This would have required the delegate to be satisfied (among other things) that Altaf was a ‘dependant child’ through applying a definition of a ‘member of the family unit’ that expressly excludes a child who has a spouse or de facto partner: r.1.12(2) of the Regulations.

15. Ms Shah applied for citizenship by conferral on 27 June 2018. On 11 November 2019, the Department wrote to Ms Shah to advise that it had information that at the time she lodged her partner visa application and at the time of the interview her son Altaf was married, and she had not been truthful in her dealings with the Department. The information before the Tribunal does not demonstrate how the Department came to be aware of this information, but it is clear that the information was not volunteered by Ms Shah prior to that time.

16. Ms Shah was invited to comment on the proposition that the delegate may not be satisfied she was of good character as required by paragraph 21(4)(f) of the Act.

17. Ms Shah admitted the false statements, and asked that weight be given to the fact that her son had survived a terrorist attack in Pakistan. Ms Shah expressed her remorse for not providing the correct information, and stated it had been playing on her conscience. Ms Shah pointed to the absence of any involvement with the Police while in Australia, and asserted there were compelling and compassionate reasons that guided her actions.

18. The delegate observed that since Ms Shah’s arrival in Australia, there had been time for her to inform the Department of the correct information, but she had not done so, and that the deceit was intentional and continuing. The delegate observed that Australian Citizenship Policy identified that an applicant of good character would be truthful and not practise deception or fraud in dealing with the Australian government, for example by providing false personal information and other material deception during visa applications. The delegate was not satisfied Ms Shah was of good character and so refused the application for citizenship by conferral on 17 January 2020.

    Consideration

19. As observed by the delegate, Departmental Policy places emphasis on an expectation that applicants of good character will be honest and not practice deception. The Tribunal has also recognised and maintained the importance of truthful dealings with the Australian government in migration and citizenship matters on the question of good character. 

20. In Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082 the Tribunal observed:

    [82] Citizenship of Australia is regarded as a special privilege when extended to those not automatically qualified. Earning it requires adherence not only to statutory requirements but also to the set of moral values and qualities related to honesty in dealings with the Government. These values and qualities are themselves a hallmark of good citizenship.

    Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.

21. The Respondent argues in this case that whilst the applicant has admitted to her deceptions when confronted, she had not disclosed the deception prior to the Department raising it with her. The Respondent also observes that the deception was perpetrated on more than one occasion. I accept that the deception was repeated and purposeful. The deception achieved its aim.

22. The Respondent argues that the deception was not justified by necessity, because the applicant’s son could have applied for protection separately. I am not persuaded that considering Ms Shah’s conduct through the lens of justification is asking the correct question. Certainly, I have noted that Ms Shah has put forward information about circumstances in Pakistan facing ethnic Hazara, explaining her motivations in providing false information to the Department. I do not think a decision maker in the Tribunal’s position could ever endorse a proposition that providing purposeful false information to secure a migration outcome is justified. The provision of purposeful false information in support of a visa application (or a citizenship application) is never justified, and is unacceptable. The question for my purposes, however, is whether that unjustified and unacceptable conduct in context speaks to Ms Shah’s enduring moral qualities in the context of an application for the grant of Australian citizenship, and if so, whether it is sufficient to deny her citizenship now on character grounds.

23. That context, in my view, involves placing heavy adverse weight on the provision of the purposeful false information to achieve an immigration outcome. I take into account the Department’s policy in that regard at Citizenship Procedural Instruction 15 under the Australian Citizenship Policy Statement in force from 27 November 2020.

24. It should also be recognised that the context of a refusal of an application for Australian citizenship is that the applicant will be deprived of no rights that are currently held: Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].

25. Those principles are not determinative in every case. The legislation makes no specific provision to refuse citizenship upon the identification of a false or misleading statement in the application for citizenship or a migration application, and the policy is appropriately expressed in generality. The consequences for a false or misleading statement in this regard remain an aspect of the assessment of character. The policy calls on decision makers to consider expressions of genuine remorse (for example) and to weigh up all the factors relevant to the assessment of an applicant’s character, which will include factors support reaching an adverse conclusion and factors which support reaching a positive conclusion.

26. The fact of the purposeful false statement clearly supports reaching an adverse conclusion on the assessment of Ms Shah’s character for citizenship purposes, including the fact that Ms Shah did not volunteer that information prior to the Department informing her that it was already aware of the false information.

27. On the other hand, Ms Shah has expressed remorse which I accept to be genuine. I also accept that Ms Shah’s circumstances in Pakistan and concern for her son’s welfare would have provided very substantial motivation for her to make the false statement that she made – an acceptance that I make in the sense of understanding the motivation without excusing it or considering it justified. It is also the case that since the matter was raised with Ms Shah, including in her evidence at hearing, there is no question that she has fully accepted that the statement was false.

28. Ms Shah’s son Mr Asif Mir was registered as a migration agent in September 2017. Mr Mir told me that he was involved in completing the visa application of November 2012 on behalf of his family. He told me, and I accept, that he noticed the information about his brother was incorrect. Mr Mir explained that the decision to complete the form in this way was a family decision. He said the family was aware that Altaf could not migrate if he was married, but his mother was highly distressed at the time.

29. It is important that I consider the evidence available to me concerning Ms Shah’s character beyond the important failing identified by the Department. All other evidence available to me is positive towards Ms Shah’s character. I am conscious I am not assessing whether Ms Shah is held in good fame or repute, other than the extent to which it is evidence of her character for citizenship purposes.

30. The Director of the Jafaria Islamic Society, Mr Kazmi, has sworn that Ms Shah is a volunteer with the society, and her family maintains a high moral reputation and are respected for their kindness and civility within the community. Mr Kazmi believes that Ms Shah is genuinely remorseful about the action that has called her character into question, but corroborates the explanation Ms Shah has also offered regarding the circumstances facing Hazara in Quetta. Similar statutory declarations are provided by Mr Sajjad Syed, and Mr Arifa Kanwal who also state that they have known Ms Shah to be of good moral character from the time their families and Ms Shah’s family lived in Quetta.

31. Another member of the Hazara community in Adelaide, Ms Hussaini, also deposes that Ms Shah is respected in the community. She describes Ms Shah as family-oriented.

32. The Secretary of the Hazara Shamama Association of Australia, Mr Yousafi, has written to the Tribunal expressing his belief that Ms Shah is of good character and that he has never heard of her doing anything wrong in the community.

33. In his oral evidence to the Tribunal, Mr Mir described his mother as a very kind mother, who had brought up 6 children, providing support and protection despite a lack of education and a very tough life. Mr Mir described his mother as a very traditional mother who has strong family values.

34. Having considered this evidence, it is apparent to me that the only flaw in Ms Shah’s character for citizenship purposes is the matter of the false statements to the Department regarding her son Altaf’s marital status: a very significant flaw in context. It follows that my assessment as to whether I am satisfied that Ms Shah is of good character falls to be determined upon consideration of that matter alone. In that sense I find myself reflecting carefully on the third of the principles identified in BOY19; namely, whether the proved deficiency in the moral qualities of Ms Shah is sufficient to deny her citizenship.

35. On the one hand, accepting the explanation that Ms Shah was fearful for her son’s safety in Quetta as an ethnic Hazara, it may well be observed that her actions in deceiving the Department do not adversely reflect on her moral qualities given that motivation. On the other hand, I am to assess character in the context of an application for Australian citizenship and have explained that I consider purposeful deceit in an immigration and citizenship context cannot be justified in this context and carries heavy adverse weight. In this way, my judgement is finely balanced.

36. On balance however, I have formed the view that despite purposeful deceit being admitted by Ms Shah, the instances of false statements identified do not speak to Ms Shah’s enduring moral qualities to the extent that I am not satisfied to conclude that she is of good character for citizenship purposes now. It was very important that Ms Shah has acknowledged the deceit and expressed remorse which I am satisfied is genuine. It is important that there is no other evidence of misleading or false statements or any other matter reflecting adversely on Ms Shah’s character.

37. I have reflected again on the remarks and observations made in Nguyen which I respectfully agree with in principle and have guided my approach. As I have reached a different decision to the decision reached in that matter, I have therefore reflected on why Ms Shah’s case is different in my view. I consider that Ms Shah’s two (related) instances of a false statements in the context of an understandable albeit unjustified motivation, the absence of any other indicator of a flaw in character, and genuine expressions of contrition has marginally tipped the assessment in her favor. 

38. I am satisfied that Ms Shah is of good character, and will remit the application for a grant of Australian citizenship by conferral to the Respondent for further consideration with an appropriate direction.

    
    ............................[Sgnd]....................................

    Legal Administrative Assistant

    Dated:   28 June 2021

Date of hearing:

15 January 2021

Applicant:

Self-Represented

Solicitor for the Respondent:

Tom Ellison

Australian Government Solicitor