Shahzad and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) - [2024] AATA 3328

Shahzad and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2024] AATA 3328 (18 September 2024)
Division:GENERAL DIVISION
File Number(s): 2023/6917
Re:Mujiburrehman Shahzad
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Henderson
Date:18 September 2024
Place:Perth

The decision of a delegate of the Respondent dated 7 September 2023, to refuse to grant the Applicant’s application for citizenship by conferral under s 24(1) of the Australian Citizenship Act 2007 (Cth) is set aside and remitted for reconsideration with the direction that the Applicant satisfies s 21(2) of the Act and is eligible to become an Australian citizen.
.......................[Sgd]..............................
Member Henderson

CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – eligibility – refusal of citizenship –Australian Citizenship Act 2007 s 21(2)(h) – whether Tribunal satisfied Applicant was of good character – Applicant is a citizen of Afghanistan – Minister contends Applicant provided a non-genuine Police Clearance Certificate – Applicant failed to provide a genuine police clearance from Pakistan – Tribunal can satisfactorily ascertain Applicant is of good character – reviewable decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 21(1), 21(2), 21(2)(g), 21(2)(h), 21(2)-(8), 24, 24(1), 24(1A), s 52(1)(b)
Administrative Appeals Tribunal Act 1975 (Cth) ss 43(1), 43(1)(c)
CASES
Boy19 v Minister for Immigration & Border Protection [2019] FCA 574
Beyan and Minister for Immigration and Border Protection [2015] AATA 256
Grass v Minister for Immigration and Border Protection [2015] FCAFC 44; (2015) 231 FCR 128
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Home Affairs v G and Another [2019] FCAFC 79
SECONDARY MATERIALS
Australian Citizenship Policy (27 November 2020) chapters 10 and 11
Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act
Department of Foreign Affairs and Trade, DFAT 2022 Country Information Report for Pakistan, 25 January 2022
REASONS FOR DECISION
Member Henderson
18 September 2024
THE APPLICATION

The Applicant is a 40-year-old male citizen of Afghanistan who first arrived in Australia on 19 February 2012 as an unlawful non-citizen. He is currently the holder of a Protection (subclass 866) visa granted on 24 August 2012 (Protection Visa).[1]
[1] R6, T21/117; T22/123.
On 17 August 2016, the Applicant lodged an application for Australian citizenship by conferral.[2]
[2] R6, T4.
On 7 September 2023, a delegate of the Minister refused to grant the Applicant citizenship on the basis that the delegate was not satisfied that the Applicant was a person ‘of good character’ within the meaning of s 21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act).[3]
[3] R6, T21.
The application for review is made in accordance with s 52(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (Tribunal) for review of a decision made under s 24 of the Act. The reviewable decision is the ultimate decision to refuse to approve a person becoming an Australian citizen (Reviewable Decision). An adverse decision in respect of the general eligibility criteria or the good character criterion is not itself amenable to review under s 52(1)(b).
For the purpose of reviewing the decision to refuse to approve a person becoming an Australian citizen, the Tribunal may exercise all the powers and discretions conferred on the Minister and may affirm, vary or set aside the decision under review pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Tribunal may remit the matter for reconsideration in accordance with directions or recommendations pursuant to s 43(1)(c).
BACKGROUND
On 24 August 2012, the Applicant was granted his Protection Visa. The delegate’s decision record reflects that the Applicant claimed to be from Logor, and that his preferred language was Dari.[4] He claimed to have resided unlawfully in Pakistan from 1990 until 2002 and again between 2008 and July 2011.[5] The delegate accepted that the Applicant had never resided in Pakistan lawfully.
[4] R6, T21/117.
[5] R6, T21/118.
The Applicant travelled to Pakistan via Dubai four times between March 2013 and January 2016, for the purpose of visiting his wife and children who were still living in Afghanistan. He gave evidence during the hearing that he would meet his wife and children in a rental accommodation in Pakistan; they would travel from Afghanistan to meet him there.
On 17 August 2016, the Applicant applied for Australian citizenship by conferral pursuant to s 21 of the Act.[6] He responded ‘no’ to all of the character declarations in the application.[7]
[6] R6, T4.
[7] R6, T4/25.
On 30 December 2016, the Department requested that the Applicant provide an overseas police clearance from Pakistan given Departmental records had indicated he had travelled there between 2013 and 2016.[8]
[8] R6, T5.
On 26 May 2017, the Applicant was invited to sit his citizenship test scheduled for 14 November 2017. That invitation requested the Applicant bring with him all original identity documents, including any identity records received while in Pakistan. The Applicant was given 35-days to respond.[9]
[9] R6, T7.
On 13 July 2017, the Applicant supplied the Department with, amongst other things, a response to the request for further information. In that response, the Applicant advised that he was an ‘illegal refugee in Pakistan’ and did not provide any evidence of his time in Pakistan.[10]
[10] R6, T8/73.
On 14 November 2017, the Applicant attended his citizenship test and provided a police certificate from Pakistan. The Department formed the view that the certificate was non-genuine.[11] By letter of the same date, the Department put to the Applicant that the certificate was non-genuine. In his response, the Applicant advised he was told by the Pakistan embassy that obtaining a police clearance certificate could take three to six months, and, as he was given 35 days by the Department to provide the document, he had tried to obtain one in a hurry through a contact in Melbourne.[12] The Applicant provided the Department with an email dated 21 November 2017 as well as a statutory declaration in which he declared that he had a contact in Pakistan who knew a ‘registered lawyer’ who could provide an ‘original police clearance which would be verified by foreign office in Peshawar Pakistan’ if the Department required.[13]
[11] R6, T6/68.
[12] R6, T11/84; T21/119.
[13] R6, T10.
On 5 April 2018, the Applicant was granted a Resident Return (subclass 155) (Resident Visa).[14] He left Australia again in May 2018, April 2019, January 2020, and July 2021. At the hearing he indicated that he thought these trips were all to Afghanistan; he expressed uncertainty about the 2018 trip but said that all of his travel was either to Afghanistan or Pakistan for the purpose of visiting his family.
[14] R6, T21/117; T22/123.
The Applicant was in Afghanistan when the Taliban took control of the government in August 2021. He brought his family out of Afghanistan and has not departed Australia again since that date.
On 1 March 2023, the Department requested that the Applicant provide, within 28 days, overseas police clearances from all countries in which he had resided since the grant of his permanent resident visa.[15] On 16 March 2023, the Applicant provided the Department with a statutory declaration declaring that he had contacted the ‘Embassy in Pakistan’ and was unable to obtain a police clearance.[16]
[15] R6, T14.
[16] R6, T15.
On 2 May 2023, the Department requested the Applicant provide evidence that an application had been made to the Embassy in Pakistan to obtain the police clearance.[17] On 17 May 2023 and 23 May 2023, the Applicant provided the Department with screenshots of correspondence between himself and the Pakistan High Commission in Canberra in which the Applicant advised he had no contact with the visa guarantor who he used to sponsor him in Pakistan and therefore could not provide the Embassy with the requested identity documents for the police clearance.[18]
[17] R6, T16.
[18] R6, T17-T19.
On 20 June 2023, the Department requested further information from the Applicant concerning the reason for his extended overseas visits from Australia in 2016 (for three months) and 2019 (for four months). That request also informed the Applicant of a process to obtain a Pakistan police certificate for a noncitizen non-resident application using the information on the ‘Pakistan High Commission Canberra’ website.[19] No response was received.
[19] R6, T20.
On 7 September 2023, a delegate of the Minister refused the Applicant’s application to become an Australian citizen by conferral on the basis the delegate was not satisfied that the Applicant was a person of good character for the purposes of s 21(2)(h) of the Act.[20]
[20] R6, T21.
On 19 September 2023, the Applicant applied to the Tribunal for review of the delegate’s decision.[21] The matter was heard in Perth on 5 June 2024. The Applicant was self-represented. The Respondent was represented by Ms Daphne Jones-Bolla of Sparke Helmore Lawyers. The Applicant and the Respondent’s representative both appeared in person.
[21] R6, T2.
ISSUE
Citizenship by conferral is dealt with pursuant to Subdivision B of Part 2 Division 2 of the Act. It provides for an application to be made to the Minister for a person to be approved to become an Australian citizen where the statutory requirements as to eligibility are satisfied.
Eligibility for Australian citizenship is set out in sections 21(2)-(8) (eligibility criteria). Section 21(2) contains cumulative criteria as to ‘general eligibility’, including a requirement in s 21(2)(h) that the Minister be satisfied that the applicant is of ‘good character’ at the time of the Minister’s decision on the application (the good character criterion).
In respect of the decision under review, the Minister was satisfied that the applicant met the criteria in paragraphs 21(2)(a)-(f). The Minister was not satisfied that the applicant met the criterion in s 21(2)(h); the good character criterion. The Minister did not consider the criteria at paragraph 21(2)(g), which provides that a person must be likely to reside in or continue to reside in Australia or to maintain a close and continuing association with Australia if the application is approved. There is no dispute before the Tribunal with respect to paragraph 21(2)(g).
BARRIERS TO SATISFACTION OF GOOD CHARACTER
The Minister submits that there are two broad reasons why the Tribunal should not be satisfied that the Applicant is a person of good character:
(a)The Applicant has knowingly provided a fraudulent document,[22] being a non-genuine Police Clearance Certificate;[23] and
(b)The Applicant has failed to provide a genuine police clearance from Pakistan.[24]
[22] The document at T6/68 – discussed in detail below at [45]-[81].
[23] SFIC [31(a)].
[24] SFIC [31(b)].
The Applicant does not accept that the Police Clearance Certificate which he provided is not a genuine document. He asserts that it is a genuine document and says that he has been prevented from obtaining evidence to prove that it is a genuine document because the Respondent will not return the original copy to him for him to seek validation from the High Commission in Australia. The Respondent does not dispute that it has not returned the original copy of the Police Clearance Certificate to the Applicant.
The Applicant says further that it is not possible for him to obtain a police clearance through the High Commission in Australia, due to the manner of his travel, the elapse of time and the loss of records. The Applicant further contends that a police clearance would not assist the Tribunal to form a better view of his character in any event.
GOOD CHARACTER ASSESSMENT: PRINCIPLES
Section 21 of the Act sets out the general provisions for the making of applications and eligibility for citizenship. Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. Section 21(2)(h) of the Act provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application.’
Section 24 of the Act provides:
(1)If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
…
(1A)The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
Accordingly, where, as here, an application is made pursuant to the general provisions in 21(2), the Minister must not approve a person becoming an Australian citizen unless the Minister is satisfied that the person ‘is of good character at the time of the Minister’s decision on the application’, that being the requirement of s 21(2)(h) of the Act.
The expression ‘good character’ is not defined in the Act. There are no criteria contained in the Act by which the Minister is to consider what comprises good character, and it has been held that this is an indication that Parliament intended the term to be used in a broad way.[25] The words ‘good character’ are used in their ordinary sense.[26]
[25] Grass v Minister for Immigration and Border Protection[2015] FCAFC 44; (2015) 231 FCR 128 at [60].
[26] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431].
Matters that bear upon a person’s good character for the purposes of the Act are matters relevant to the obligations of citizenship as expressly or impliedly reflected in the Act, including its Preamble.[27]
[27] Boy19 v Minister for Immigration & Border Protection [2019] FCA 574 at [53].
The Preamble to the Act states that:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian Citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
Guidance is set out in the Citizenship Procedural Instruction 15 – Assessing Good Character under the Citizenship Act (CPI 15) and the Australian Citizenship (Policy Statement), which came into force as of 27 November 2020 (the Policy).
The Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[28] CPI 15(4) provides that an Applicant of good character would, among other things:
·     respect and abide by the law in Australia and other countries.
·     not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example intentionally providing false personal information or other material.
·     not be the subject of any verifiable information causing character doubts.
[28]Minister for Home Affairs v G and Another [2019] FCAFC 79 (G) at [57]-[62].
In Irving, the Full Court of the Federal Court of Australia considered the expression ‘good character’ in the context of a provision of the Migration Act 1958 empowering the Minister to refuse to grant a visa or entry permit in certain circumstances, including that the person is not of good character. Davies J opined that:[29]
[t]he term “good character” is not precise in its denotation. In one sense, it refers to the mental and moral qualities which an individual has. In another sense, it refers to the individual’s reputation or repute: see Oxford English Dictionary, meanings 11, 12 and 13; The Macquarie Dictionary meanings 1, 2, 3, 4 and 5…criminal convictions or the absence of them and character references are likely to be an important source of primary information. … If persons speak well of the applicant, the decision-maker will take that into account.
[29] Irving pp 424-425.
That said, it is clear that the assessment of good character entails considering and weighing the person’s enduring moral qualities and not the good standing, fame or repute of the person in the community.[30]
[30] Irving.
The relevant authorities and the Policy make it clear that:
(a)a person can fail to establish that they are of good character even if they have not been convicted of any criminal offences;[31] and
(b)it has long been held that dishonesty in migration and citizenship applications is indicative that a person is not of good character.[32]
[31] See for example, Chapter 11 of the Policy, at page 147 (extracted at [15] above) and decisions extracted at [19] and [20] above.
[32] For example, Beyan and Minister for Immigration and Border Protection [2015] AATA 256.
As to the state of satisfaction required for ‘good character’:[33]
[54] Section 21(2)(h) requires the Minister to form a judgment as to whether he or she is satisfied that the applicant for citizenship is of good character. The word “satisfied” in that context is not amenable to the application of an evidentiary burden of proof, such as balance of probabilities. That is for at least two reasons. First, the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite…Second, the matter of which the Minister must be satisfied, the applicant’s good character, is not a fact to be proved but an opinion requiring an evaluative judgment. A standard of proof, such as balance of probabilities, is incapable of application to such an opinion….
[55] The absence of an evidentiary burden of proof does not mean that there is an absence of a legal standard of satisfaction. In the context of s 21(2)(h) of the Act, satisfaction requires that the decision-maker reach an affirmative belief that the applicant is a person of good character. It is not sufficient for the decision-maker to believe that there is a chance that the applicant is a person of good character; equally it is not necessary for the decision-maker to have a high degree of confidence that the applicant is a person of good character…
(Emphasis added.)
[33] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574.
As to referee reports (that is, character references), the Policy states:[34]
… [they] can shed light upon an applicant’s character and should acknowledge, where applicable, any offence or other incident and explain why the applicant is nonetheless considered to be of good character. Decision makers should give very little weight to references which do not acknowledge the offence or incident. However, decision makers should note the inherent bias in any reference which is submitted by an applicant in support of their citizenship application.
More weight should be given to references made as statutory declarations than those which are not. References should come from members of the community who have observed the applicant at work or in other contexts, or who are willing to provide contact details. Referees should also explain how long they have known the applicant for, and the context of their relationship. Decision makers are encouraged to contact referees and ask them questions to test their knowledge of the applicant, their relationship etc., if the referee provides adverse information in these discussions, this information should be put to the applicant for comment.
(Emphasis added.)
[34] The Policy p 155.
EVIDENCE

The Tribunal received the following evidence:
(a)Applicant’s submissions in reply dated 26 April 2024 (Exhibit A1);
(b)Character statement from Najibullah Atayee dated 28 April 2024 (Exhibit A2);
(c)Character reference from Mohamad Sediqi dated 27 February 2024 (Exhibit A3);
(d)Respondent’s Statement of Facts, Issues & Contentions dated 27 March 2024 (Exhibit R1);
(e)Annexure A: Protection (Class XA) visa decision record (Exhibit R2);
(f)Annexure B: Notification of a grant of a Protection (class xa) Protection (subclass 866) visa (Exhibit R3);
(g)Annexure C: File Case note (Exhibit R4);
(h)Annexure D: Email dated 26 March 2024 (Exhibit R5); and
(i)Respondent’s Section 37 T documents, labelled T1-T25, comprising 1-163 pages (Exhibit R6).
The Tribunal heard oral evidence from the Applicant.
The Respondent did not call any witnesses, nor provide any statement from any employee who could speak to or explain any of the documents put before the Tribunal. It is conventional in proceedings of this nature for the Respondent to rely on the material in the documents provided pursuant to section 37 of the AAT Act and the Tribunal does not draw any adverse inference from their failure to call any witness per se. However, for the reasons set out below, the Respondent’s failure to provide any witness who could explain the material on which the Respondent relies is unusually problematic in this instance, given the nature of the documents relied upon and the facts that they are said to prove.
After the hearing the Tribunal provided both parties with country information about Pakistan which the Tribunal indicated it found to be relevant to consideration of the Applicant’s credibility. The parties were given an opportunity to comment on the country information in writing.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing.
CONSIDERATION
Police Clearance Certificate
The document that the Applicant submitted in 2017 in response to the request for a police clearance is titled ‘Police Clearance Certificate’. The entirety of the document is written in English. It is headed ‘Office of the Capital City Police Officer, Peshawar’. It bears certificate number 10398/SB, and the date 01-03/2017, below which there is another certificate number ‘689/PAL’. It states:[35]
Mr./Mrs./Miss. Mujiburrehman Shahzad S/D/W of [name omitted] is an Afghan National, resident of Afghanistan. He had resided at House [address omitted], Pakistan from 12.09.2012 to 01.01.2013, 09.11.2014 to 07.12.2014 and 13.10.2016 to 10.01.2017.
This office is not in a position to verify his/her, character and previous record, as he/she is a foreigner, however he/she has no criminal record on his/her home Police station during the period he/she stayed at Peshawar.
[35] R6, T6/68.
There is a photograph of the Applicant below these words, and a space for his signature and thumb print. Both those spaces contain the word ‘Abroad’, and below them it states ‘This certificate is issued for the purpose of proceeding abroad’. The certificate bears a signature said to be that of ‘SP/Security, Capital City Police, Peshawar.’ The document bears four stamps: ‘Superintendent of Police Security Capital City Police Peshawar’, ‘AD’L IQBAL Assistant Protocol Officer 02 Mar 2017 Ministry Foreign Affairs Camp Office Peshawar’, ‘Camp Office Peshawar Attestation No 5007’, and ‘Superintendent of Police Security Peshawar’. It also bears a green seal marked ‘Attestation Stamp’ over which there is an additional stamp: ‘Ministry of Foreign Affairs Government of Pakistan’.
The T-Documents contain an email from the Applicant to the Perth Citizenship Office, containing the following statement:[36]
[36] R6, T10/82.
I MUJIBURREHMAN SHAHZAD
I am writing this declaration that how I got the police clearance
First I tried and called the Pakistan embassy in Canberra Australia and asked them if they can provide me police clearance which they told me that if we can provide you it will take 3 to 6 months and after that we are not sure that we can provide it we cant guarantee and advised me its better to get it through someone else
as the immigration had given me just 35 days to provide the police clearance which was emergency so I contact the hello world travel agency in Dandenong Melbourne if he can help me with the document His name is [name omitted] he told me that I may help you and he contact with the registered lawyer in Pakistan after a while
He called me that this registered lawyer can provide you the police clearance which will cost $ 600 including to attest or verify the police clearance with foreign office in Peshawar Pakistan, express post and the lawyer wages.
Now still if the citizenship office is not satisfied about this document and required further verification or need correction in dates of entries in Pakistan in this police clearance please advise me and if its possible send me the police clearance to verify it with Pakistan embassy in Canberra that its an original and registered in foreign office of Peshawar Pakistan OR required another police clearance .
please see the attached statutory declaration
THANKS
KIND REGARDS FROM MUJIBURREHMAN SHAHZAD
The attached and signed statutory declaration was in substantially the same terms, dated 21 November 2017. The Applicant confirmed that this evidence was true and correct during the hearing before the Tribunal. The Applicant said that [name omitted] was known to obtain police clearances for the Pakistani community in Australia.
The Applicant said that the Pakistani police took advantage of Afghan refugees, requiring them to pay for everything. He gave the example that if there was a standard fee of $100 for obtaining a document, Afghan applicants would be told to wait indefinitely, but the document would suddenly become available if a ‘gift’ was paid on top of the fee. He did not find it strange that he would have to pay $600-$700 for a local lawyer to obtain the police clearance for him; he said that he expected that there would be fees over and above what was advertised.
The Applicant said that the Afghan community in Australia had obtained hundreds of documents by the same process that he had undergone, and that he was confident that the certificate was genuine.
There are a number of curious features about the document, including that the Mr/Mrs/Ms options remain unselected. This was put to the Applicant during cross-examination and he said that it is quite common for the personal pronoun to remain unchecked in similar circumstances; it is just an oversight by the person completing the document. The dates of residence in the certificate do not line up with the Applicant’s Australian movement record. This was also put to the Applicant by the Respondent and the Applicant said that the travel agent had entered the travel dates and he had assumed that they were correct because they were provided by the person who booked the travel. The Applicant said that errors in dates are common in documents, and that even his children’s dates of birth were not correct on their passports. He remained confident through cross examination that the document is genuine.
The evidence relied upon by the Respondent as proof that the certificate is not genuine is very limited. The Respondent took the Tribunal to an email dated 19 December 2019 from Denise Gordon to ‘Border Watch Allegation Referral Team’. The content of the email was the following:[37]
[37] R6, T11/84.
For-Official-Use-Only
Good afternoon
This client attended an interview on 14/11/2017 and provided a Police clearance from Pakistan. This document has been refereed and found to be non genuine
Notes from POST below
Sent a copy of PCC received from PA to the fax no of our contact on 091-9212597.
Called on the landline number after 5 mins on 091-9212587. Mr [K] Pervez (Assistant Grade Clerk) picked up phone. Asked him about the fax to which he confirmed that he has received the fax. Told me to call back after 10 mins.
Called him back on the same no after 10 mins. He gave me following statement.
This letter provided to you is completely fake. There is no record of this letter with us. Serial no mentioned on this letter is 10398 however we are now on 2200. Its completely fake/bogus
He was thanked for the information.
Conclusion:
As per the verification received this referral is closed as Non-Genuine.
At interview I asked the client about this document. He stated he had called the Pakistan embassy who said it would take 3 to 6 months to obtain a clearance. As he had been given 35 days to obtain one he tried to obtain one in a hurry.
He has provided information relating to the OPc which is in the attached email . He obtained this via a contact in Melbourne – details attached.
As the client has provided details of who provided the bogus document I am referring this information to Border Watch
Kind regards
The email extracts notes from POST which reflect that their unknown author had two conversations with a man named Mr Pervez, and that Mr Pervez told the author that ‘the letter’ which had been sent to Mr Pervez by fax was ‘completely fake’. Mr Pervez further reported that the ‘serial no mentioned on this letter is 10398 however we are now on 2200.’ That appears to be the only basis on which Mr Pervez asserts that ‘the letter’ is ‘completely fake’. No issue is raised with any of the many seals or stamps with which the document is endorsed.
The Respondent also adduced an email from ‘Home Affairs Islamabad (DFAT)’ to ‘Citizenship Litigation’ stating that ‘The Islamabad post contacted Capital City Police Office in Peshawar’ and that ‘Mr Khalid Pervez held the position of Assistant Grade Clerk at the Capital City Police Office in Peshawar at the time of this verification’.[38] The name of the email’s author has been redacted from the email, as have all of the contact details. The email address from which the email was sent has also been redacted. No witness from the Respondent was made available to speak to the document, and the Respondent was represented at the hearing by external counsel at Sparke Helmore who was not privy to details of the relevant process for obtaining information.
[38] R5.
The Tribunal is not strictly bound by the rules of evidence, but it does have an obligation to afford procedural fairness. That obligation is not discharged by relying on evidence that is a third-party extract from an unidentified and unavailable report made by an unknown person based on information that was received from an external agent on terms that are unknown. None of the evidence that the police certificate is not genuine appears on any official government letterhead, and none of it bears any official government seal. There is no extrinsic material on which the Tribunal could form a view about the reliability of the conclusion or the accuracy with which the conclusion was reported.
The Respondent was not able to explain why Mr Perez referred to what obviously appears to be a certificate as a ‘letter’. It is not clear whether his information was provided in English or whether there is also scope for translation errors.
In answer to the Tribunal’s enquiries about the process of verification through the High Commission, the Respondent’s representative indicated that it was quicker and more reliable to go through the Australian government’s private channels directly in Pakistan, rather than rely on the High Commission to Australia. That is, with respect, the exact argument that the Applicant presses to justify his own decision to seek private assistance from a lawyer in Pakistan. The Respondent’s argument that the Tribunal should be suspicious of the Applicant’s conduct in bypassing the High Commission as slower and less reliable than a private avenue in Pakistan is significantly undermined by the Respondent’s own conduct in bypassing the High Commission and having their agents directly contact the local police authority in Pakistan.
The Applicant’s unchallenged evidence is that he presented his copy of the police certificate to the High Commission in Australia and asked that they verify it, and that it was returned to him with a sticky note stating ‘please provide the original letter attested by MOFA’.[39] The Applicant provided the Tribunal with a copy of his request for the Attestation of Documents, which appears to be a legitimate form issued by the Consulate General of Pakistan Melbourne. Part A contains the Applicant’s details and states that the ‘Purpose of Attestation’ is ‘Police Certificate attestation for Citizenship and immigration purposes’. The sticky note as described by the Applicant is stuck to the form. The Applicant’s unchallenged evidence is that the original form is in the possession of the Department and he has requested that they provide it to the High Commission.
[39] A1.
The Tribunal does not accept that the certificate is not genuine. The Applicant is a credible witness who gave a credible account of his logic and actions. The only criticism that Mr Perez raised with the document (if he was indeed referring to this certificate and not to some other document more nearly resembling a letter) is that it does not bear the correct serial number. The number in question has been entered manually in a blank space in the typed document, which seems odd for a serial number; ordinarily serial numbers are sequential and form part of the typed document. It may be that Mr Perez has mistaken the handwritten number for the serial number when it is the printed number below ‘No. 689/PAL’ that he should have had regard to as the serial number. Alternatively, it may be that a simple human error that an extra number has been added in a moment of distraction. Without expert evidence, or Mr Perez being made available for cross examination, the Tribunal is not prepared to find that the certificate is not genuine solely because a handwritten number is said to be out of sequence with the reported expectations of an assistant grade clerk.
More importantly, the Tribunal finds that the Applicant reasonably believes the certificate to be genuine, that he obtained it through reasonable measures, and that he made appropriate efforts to comply with the request for a police certificate from Pakistan. It is therefore not open to the Tribunal to find that he has knowingly relied upon non-genuine information or intentionally tried to mislead the Department even if the certificate was to be ultimately proved non-genuine.
Is the absence of a genuine Pakistani penal clearance fatal to a finding that the Applicant is a person of good character?
The Citizenship Program requests overseas penal clearances to ensure that applicants who have spent time overseas are of good character for the time they spent offshore. The Policy states that to assist in making the character assessment, an applicant should be requested to provide an overseas penal clearance where the applicant has:
·lived or travelled outside Australia since turning 18; and
·the total time spent outside Australia added up to 12 months or more; and
·the time spent in any one country was an accumulated period of 90 days or more; or
·if requested to do so by the Department.
It is not in dispute that since the grant of the Applicant’s permanent Australian visa he has spent more than 12 months in total overseas and that he has spent more than 90 consecutive days in Pakistan, and therefore the Policy indicates that he should be requested to provide an overseas penal clearance.
Barriers to obtaining a police clearance
The Applicant says, and the Tribunal accepts, that there are a number of barriers to the Applicant obtaining a police clearance. His evidence in this regard is summarised in his Statutory Declaration dated 16 March 2023, in the following terms:[40]
I have contacted the Embassy in Pakistan to reissue a new police clearance as required however for the police clearance to be processed particular documentation are required that I no longer carry nor am I able to reobtain.
I have been requested to provide the contact details (names and address) of the gaurantors (sic) and indivdiuals (sic) whom I resided with in Pakistan. However, I have been contacting them many times and I have not received any response from them. Furthermore the process in obtaining a police clearance can take more than six month and even so there is no guarantee that a police clearance will be issued.
[40] R6, T15/94.
The Applicant has provided copies of correspondence with the Consular Section of the Pakistan High Commission in Canberra which confirms that he must provide proof of residence in Pakistan in order to obtain his police clearance, and that he must provide ‘documented proof to visit and stay in Pakistan’.[41] The correspondence specifies that proof of residence might include a hotel booking or, if he has stayed with a relative, an ‘affidavit from your host on stamp paper along with his/her CNIC copy’.[42]
[41] R6, T19 p104.
[42] R6, T17 p102.
The Applicant’s uncontradicted evidence during the hearing was that in order to obtain a visa to travel to Pakistan he contacted a ‘travel agent’ who helped with the requirement to ‘know someone Pakistani’ to be a guarantor. His travel agent had connections with people who were prepared to be ‘guarantors’ for a fee; the agent used their names and addresses on the Applicant’s behalf to apply for the visas. The Applicant did not actually stay with these ‘guarantors’ and has no record of who these people were or the addresses that he claimed to have stayed.
The Applicant also gave unchallenged evidence that he was unable to provide entry and exit stamps from his visits to Pakistan because the Australian government had retained his old travel documents when he applied for new ones. There is an email in evidence before the Tribunal by which the Applicant drew this to the attention of the Adelaide citizenship office and requested a copy of his old travel documents so that he could provide proof of his travel to the High Commission.[43] He does not appear to have received any reply.
[43] R6, T19 p104.
The Tribunal is aware that Afghan refugees have had issues in Pakistan. The Tribunal directed both parties to the following relevant information, accessed by the Tribunal on 18 June 2024:
·PAKISTAN SITUTATION OF AFGHAN REFUGEES (europa.eu)
·Pakistan must halt unlawful deportation of Afghan refugees (amnesty.org)
·Pakistan: Widespread Abuses Force Afghans to Leave | Human Rights Watch (hrw.org)
·Afghan refugees forced to leave Pakistan say they have nothing (bbc.com)
·The New Humanitarian | Pakistan threatens new wave of Afghan deportations
·Anti-migrant raids push millions of Afghans into hiding in Pakistan | AP News
The articles confirm that Pakistani authorities are hostile to Afghan refugees and are targeting the mechanisms previously used for them to reside in and visit Pakistan. Authorities are also hostile to their relocation to third countries. Human Rights Watch reports that Pakistani authorities have charged exit fees of US$830 on leaving Pakistan for any destination other than Afghanistan.[44]
[44] Pakistan: Widespread Abuses Force Afghans to Leave | Human Rights Watch (hrw.org).
The Tribunal accepts that the Applicant cannot travel to Pakistan personally to obtain a police clearance at this time. The Tribunal further accepts that the Applicant’s reliance on his travel agent bribing guarantors to speak for him was necessary for the Applicant to see his family, and that it does not reflect poorly on the Applicant’s character any more than his illegal entry into Australia to claim refugee status does.
Probative value of a Pakistani police clearance
It is not clear in any event what reliance the Tribunal could possibly place on a clearance certificate from the Pakistani local police.

The 2022 Country Information Report for Pakistan produced by the Department of Foreign Affairs and Trade (DFAT) indicates that police capacity and effectiveness in Pakistan is limited by a lack of resources, poor training and competing pressures from superiors, political actors, security forces and the judiciary.[45] It further reports that police work in Pakistan is poorly paid and dangers, and that individual police officers augment their salaries with bribes.[46]
[45] DFAT Report at [5.9].
[46] DFAT Report at [5.10].
The DFAT Report includes the following passage at [5.50]:
Police issue documentation containing information about a person’s criminal record. Officials typically check with local police from the applicant’s district before issuing the certificate, but Pakistan has no centralised criminal database, so these documents are not reliable.[47]
(Emphasis added.)
The Tribunal is satisfied that a Pakistani police clearance certificate would have little or no probative value in an assessment of the Applicant’s character. If it indicated that he had committed no offence, the DFAT Report suggests that this would not be reliable because of the lack of a centralised criminal database and the potentially limited communications between districts. If it returned an offence on the Applicant’s record then the Tribunal would have reasonable doubts about the accuracy of that record arising from the discrimination against Afghan refugees in Pakistan, the hostility of the Pakistani authorities to Afghan refugees settled in third countries, and the corruption identified in the Pakistani police force.
[47] DFAT Report at [5.50].
Attachment A to the Penal Checking Handbook
The above information is consistent with that which is relied upon by the Department in its policy and procedures with respect to visa applications from Afghans resident in Pakistan. Section 8.1 of CPI 15 is headed ‘How to request overseas penal clearances’. It states that the ‘Department’s Instruction about requesting overseas police clearances is available at Penal Checking Handbook – PI (VM-1002).’ It contains a link to a government intranet page. Section 8.1 states that Attachment A of the Penal Checking Handbook (PCH) provides country-specific information on the utility of penal clearances from other countries for Departmental purposes, including those countries where penal clearances have no utility and should not be requested or where a waiver should be sought from post.
The PCH and its attachments were not put before the Tribunal, notwithstanding the Respondent’s obligation pursuant to the Practice Directions to provide all relevant documents. The Tribunal requested information relevant to Pakistan contained in Attachment A and the Respondent, after some delay, provided two copies of it to the Tribunal; one current at the time of the decision and the version that is presently covered (collectively Attachment A). At the date of this decision the Respondent has not provided a copy to the Applicant and has sought a confidentiality order pursuant to s 35(4) of the AAT Act.
Section 35(4) of the AAT Act provides that the Tribunal may give directions prohibiting or restricting the publication or other disclosure of information that relates to a proceeding, including to some or all of the parties. In considering whether to make directions the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
The Respondent seeks the order on the basis that ‘the Respondent is concerned that wider distribution of the document would give the broader public insight into the Department’s decision-making process’. The document in question is expressly referred to in CPI 15, which the Respondent submits the Tribunal should be guided by. There is nothing in CPI 15 to suggest that Attachment A to the Penal Checking Handbook is a confidential document – the reference to it is in inviting and open terms. CPI 15 is not a policy document that is available to the general public however and the copy of Attachment A provided to the Tribunal has been marked confidential. The information contained in Attachment A is broadly consistent with the country information that appears above, and this aspect of the applicant’s case is established without reference to Attachment A. The Tribunal has therefore erred on the side of caution and made a direction pursuant to 35(4) that Attachment A not be provided to the Applicant.
No requirement for a police clearance from Pakistan
The Tribunal is not bound by policy, even where it is imperative, if there are good reasons to depart from it. In this instance, the Tribunal is of the view that there are three good reasons to depart from the policy. First, the provision of a police clearance from Pakistan would be unduly onerous to obtain. Secondly, the Tribunal considers that a police clearance from Pakistan would not materially assist the Tribunal in its deliberation on the Applicant’s character. Thirdly, there are circumstances provided for within the policy in which a police clearance is not required, specified in Attachment A. Without descending into detail, Attachment A states that delegates are not required to request a police clearance from Pakistan for Afghan residents residing in Pakistan at present. The context makes it clear that this is because of the difficulties in obtaining the certificate, and not because of any immediate risk of harm arising from the application. Although, as the Respondent points out, the Applicant is currently a resident of Australia and therefore this waiver does not strictly apply to him, it is an acknowledgement that circumstances do arise that justify waiving the need for a certificate for Afghanis. Attachment A is silent as to Afghan visitors to Pakistan who are unable to prove their residential address for the period of their stay.
For these reasons, the Tribunal gives no weight to the Applicant’s inability to provide a genuine, current police clearance from Pakistan.
There is no evidence to suggest that the Applicant has committed any serious offence whilst in Pakistan, and the Applicant’s movement record indicates that he has not been abroad for a long enough period to have served a prison sentence overseas.
The Tribunal notes for completeness that the Applicant has also travelled into Afghanistan since becoming an Australian resident and that he has spent more than 90 days in Afghanistan. However, the Applicant left Afghanistan as a refugee and has not been back since the Taliban took back control of the government. The Tribunal accepts that it would be difficult if not impossible for the Applicant to obtain a police clearance from Taliban controlled Afghanistan, and that such a clearance would be of little probative value to the Tribunal, given the Applicant’s history.
Is the Applicant a person of good character?
The Applicant has satisfied the Tribunal that the barriers to a finding that he is a person of good character pressed by the Respondent are without merit. The Tribunal is satisfied that the Applicant has not intentionally provided false information, and that there are reasonable grounds for dispensing with the requirement for him to provide a police clearance for Pakistan. The Tribunal turns, then, to considering whether there is sufficient evidence to form the affirmative view that the Applicant is a person of good character.
Positive evidence of good character
The Tribunal formed a favourable impression of the Applicant, who presented as honest, appreciative of Australian values, and cognizant of the great privilege it would be to obtain Australian citizenship. He was respectful and forthright in all his dealings with the Tribunal.
The Tribunal has the benefit of a letter from Mr Mohamad Hamed Sediqi, Geotechnical Engineer at BHB Ltd, dated 27 February 2024, who says that he has known the Applicant since 2012 and that he is pleased to provide the Applicant with an immigration reference in support of his application for Australian citizenship.[48] Mr Sediqi reports that he has found the Applicant to be honest, reliable, responsible and a person of good character. He confirms that the Applicant’s children attend [public school name omitted] senior high school, and that he meets the Applicant regularly out in the community and playing social sports. He says that the Applicant ‘is a hard-working individual who always contribute (sic) to the Australian wider community’.
[48] A3.
The Tribunal has also had the benefit of a character statement from Mr Najibullah Atayee dated 28 April 2024.[49] It is written under the letterhead of the Noorulhuda Islamic Association. It is marked for the attention of the Minister and is headed ‘Character Reference’. It warrants repeating in its entirety:
This letter is to confirm that Mijiburrehman SHAHZAD is an exceptional individual whom I believe is of good character. I have known the applicant for several years.
Mijiburrehman has been self-employed as a fence installer and has assisted in building a safe neighborhood (sic) throughout Western Australia. He is hard working and maintains professionalism with every job he completes. Furthermore, Mujiburrehman is known to assist people in the Afghan community by repairing pool fences of corner homes on main streets which are often damaged by external community members.
In addition to working full time Mujiburrehman is an active family orientated father of seven who encourages his children to be part of the Afghan community and the wider Australian community. He has purposely chosen for his children to attend public schools ensuring that they adopt the Australian lifestyle as young citizens. Mujiburrehman takes his son, [name omitted], for training at [club name omitted] Junior Cricket Club and club name omitted Cricket Club whilst his other son, [name omitted], is an apprentice at United Energy Group, showcasing his dedication to integrate within the Australian community. As his wife is learning to speak English, Mujiburrehman ensures that he attends his children’s parent teacher meetings and doctor appointments in addition to ensuring he meets his fatherly duties towards his wife and newborn baby.
Mujiburrehman has been accused of providing a non-genuine documentation and thus considered not of good character resulting in his inability to apply for Australian Citizenship at this current time. This is out of character of him, and I can testify that Mijiburrehman is an honest and reliable community member.
We ask that you take into consideration this character reference in your decision.
[49] A2.
The character statement from Mr Atayee is detailed and specific. The Applicant has clearly shared with him the issue arising from the non-genuine documentation, and whilst Mr Atayee does not pretend to have anything to contribute about the genuineness of the document, he asserts that presenting a non-genuine document is out of character for the Applicant.
The Tribunal finds the character reference persuasive. It fits with the evidence of the Applicant that he is a committed father who has made significant efforts and taken significant risks to be with his family, and to bring them from Afghanistan to Australia. The Applicant’s commitment to his cultural heritage whilst also taking steps to integrate (and ensure his children integrate) with the language, culture and values of the Australian community is exemplary.
The Tribunal accepts the evidence of the Applicant’s referees and finds that they weigh heavily in favour of a finding that the Applicant is a person of good character.
CONCLUSION
For the reasons outlined above, the Tribunal is satisfied that the Applicant is of good character for the purpose of s 21(2)(h) of the Act.
There is still the outstanding question of s 21(2)(g) of the Act, which provides that the Applicant is ‘likely to…continue to reside in Australia’. It is, however, abundantly clear on the evidence before the Tribunal that the Applicant intends to continue residing in Australia for the foreseeable future. He has brought his family here at considerable cost, his evidence is that he respects the opportunity he has been given to reside in Australia and wants it to continue, and both his evidence and that of his witnesses is that he is putting down secure and longstanding roots in the local Australian community for himself and his family. The Tribunal is satisfied that the Applicant meets the criteria in s 21(2)(g) of the Act.
The decision under review is the decision to refuse the application for citizenship. The Tribunal finds that the basis for the Respondent’s refusal, that the Applicant does not meet the criteria of s 21(2) of the Act, is misplaced and sets it aside. However, it is not, in the Tribunal’s respectful view, for the Tribunal to substitute a decision that citizenship be granted. The granting of citizenship is still subject to a Ministerial discretion pursuant to section 24(2). The Tribunal will only go so far as to make a direction that the Applicant meets the criteria in s 21(2) of the Act and is eligible to become a citizen.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 7 September 2023 to refuse the Applicant’s application for citizenship by conferral, is set aside and remitted for reconsideration with the direction that the Applicant satisfies s 21(2) of the Act and is eligible to become an Australian citizen.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of J Henderson, Member

......................[Sgd]..................................................
Associate:
Dated: 18 September 2024

Date(s) of hearing: 5 June 2024

Applicant: Self-represented

Solicitors for the Respondent: Ms Daphne Jones-Bolla, Sparke Helmore

Date(s) of hearing:	5 June 2024
Applicant:	Self-represented
Solicitors for the Respondent:	Ms Daphne Jones-Bolla, Sparke Helmore