Ur Rehman and Minister for Home Affairs (Citizenship)
[2019] AATA 2344
•1 August 2019
Ur Rehman and Minister for Home Affairs (Citizenship) [2019] AATA 2344 (1 August 2019)
File Number: 2018/2567, 2018/2748, 2018/2746
Division:GENERAL DIVISION
File Number: 2018/2567
Re:Atiq Ur Rehman
APPLICANT
Minister for Home Affairs And
RESPONDENT
File Number: 2018/2748
Re:Ubayy Ur Soma
APPLICANT
Minister of Home Affairs And
RESPONDENT
File Number:2018/2746
Re:Muhammad Ur Rehman
APPLICANT
Minister for Home Affairs And
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:1 August 2019
Place:Sydney
The decision of the Minister’s Delegate dated 9 April 2018, refusing the Applicant’s application for Australian Citizenship by Conferral is set aside; and
The matters are remitted to the decision-maker for reconsideration with the following directions:
a)Mr Atiq Ur Rehman’s failure to disclose the nature of his relationship with Aleena Iftikhar Dar and Muhib Ur Rehman are not grounds for refusal under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth); and
b)the Application for Australian Citizenship by Conferral of Atiq Ur Rehman and contingent applications of Ubayy Ur Soma and Muhammad Ur Rehman are to be reconsidered having regard to direction (a) of this decision.
...........................[sgd].............................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – refusal – good character requirement – failure to disclose alleged wife and son in citizenship application – whether Applicant was obliged to disclose – decision set aside and remitted
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)
Migration Act 1958 (Cth)
CASES
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Commonwealth v Australian Capital Territory [2013] HCA 55
Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686
Ghalzai v Minister for Home Affairs [2019] AATA 74
Ghazel v Ghazel and Anor [2016] FamCAFC 31
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27
Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132
Mohammed v Minister for Immigration and Border Protection [2018] AATA 687
Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082
Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255
Zheng v Minister for Immigration and Citizenship [2011] AATA 304
SECONDARY MATERIALS
Australian Citizenship Policy, effective 1 June 2016
Human Rights Commission of Pakistan, HRCP Archive < Rights Commission of Pakistan: State of Human Rights in 2018
Jamila Hussain, Islamic Law and Society (Federation Press, Sydney, 1999)
United Kingdom, Hansard, House of Commons, 31 January 2017, volume 620 column 813 (Nusrat Ghani)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
1 August 2019
MULTIPLE APPLICANTS
This matter concerns an application by Mr Atiq Ur Rehman (the Applicant) to review a decision by a delegate of the Minister (the Respondent) to refuse his application for Australian citizenship by conferral.[1] In his application the Applicant included applications for citizenship by conferral on behalf of his two minor sons, Ubayy Ur Soma (born in 2012)[2] (the Second Applicant) and Muhammed Ur Rehman (born in 2013)[3] (the Third Applicant). Given that these three applications are inexorably linked and co-dependent the Tribunal deems it appropriate to consider and make a determination on each application in these written reasons.
[1] In these footnotes the Section 37 Tribunal documents related to the Ati Ur Rehman will be referenced as Tribunal Documents A; those related to Ubbay Ur Soma as Tribunal Documents B and those related to Muhammed Ur Rehman as Tribunal Documents C.
[2] Section 37 Tribunal Documents B at [126]. This child was originally registered in the name of Ubayy Ur Rehman: Section 37 Tribunal Documents Cat [164] in 2012 but his Family Name was changed to Soma, registered in 2016.
[3] Section 37 Tribunal Documents C at [168].
A MATTER OF HONESTY NOT MORALITY
Very properly, the Respondent in presenting their opening submission to the Tribunal stated that “This case is ultimately about honesty …. It is about whether Mr Ur Rehman has been truthful” in his citizenship application. As is so often the case the perennial question “what is truth?” does not necessarily admit of easy answer.[4]
[4] John 18:38.
The evidence before the Tribunal goes to a number of highly sensitive and personal matters involving a sexual relationship, the birth of a child and intimate family arrangements. The Tribunal is not concerned about any questions of morality, solely about what facts can be established and to what extent, if any, those facts were, or needed to be disclosed to the Department by the Applicant.
BACKGROUND
The Applicant was born in Pakistan in 1987 and is a citizen of that country. He originally arrived in Australia in October 2008 holding a subclass 572 visa (Vocational Education and Training Sector). In August 2011 he married Ms Yuka Soma who is a citizen of Japan holding Australian permanent residency.
On their marriage certificate both parties are listed as “student” and the detail headed “conjugal status” shows both as “Never Validly Married.”[5]
[5] Section 37 Tribunal Documents A at [105].
The Applicant lodged his application for citizenship by conferral on 15 June 2016 including his two children in that application.[6] On 3 November 2016 the Applicant passed the citizenship test as required under the Australian Citizenship Act 2007 (Cth) (the Act).
[6] The Applicant now has five children born in Australia.
On 9 April 2018 the Minister’s delegate refused the grant of citizenship on the basis that the Applicant had been found to not satisfy the Act’s requirement that he be of “good character”.[7]
[7] Australian Citizenship Act section 21(2) (h).
The Applicant lodged an appeal for a review of that decision by this Tribunal on 7 May 2018 and the matter was heard on 18 July 2019.
THE REVIEWABLE DECISION
The basis of the Delegate’s decision was that, after an investigation by Australian High Commission authorities in Pakistan (itself the consequence of information somehow conveyed to the High Commission), the Delegate determined that the Applicant was married to a woman named Aleena Iftikhar Dar[8] in Pakistan as well as being married to Ms Soma. Further, that this marriage had taken place some five years prior to the application in question and that there was a son[9] born of that marriage.
[8] Section 37 Tribunal Documents A at [54].
[9] Named Muhib (Muhib) Ur Rehman, Section 37 Tribunal Documents A at [14]. The Tribunal uses the spelling Muhib in preference as this is the spelling given in the Affidavit of the child’s mother, Ibid at [54].
The Delegate concluded, after notifying the Applicant[10] of this adverse information held against him, and considering his response to that notification, that his failure to declare this alleged marriage in Pakistan, and the birth of a child from that marriage on his citizenship application meant that he had not been honest with his dealings with the Department and could not be considered to be a person of “good character” as required under the Act.
[10] Ibid at [101-102]. Notification dated 9 February 2018.
In their formal statement of reasons for rejection of the application, the Delegate also wrote:
“While I accept that you have not been charged or convicted under any Act in Australia in relation to this behaviour, your behaviour/conduct of involving in bigamy or polygamous relationship does not conform to the values of Australian society and is against the Australian law. Therefore I am taking this information into consideration in my assessment.”[11]
…
“While you are married to Yuka Soma in Australia, you are also married to another person in Pakistan under religious ceremony and/or local customs and also had a child out of the relationship. I acknowledge that you have not been prosecuted or charged in relation to this behaviour under an Australian law, I am however satisfied that this behaviour does not conform to the values of Australian society and is against an Australian law.”[12]
[11] Ibid at [14].
[12] Idem.
The Tribunal will return to this aspect of the Delegate’s decision, namely the issue of bigamy/polygamy, in due course. The Delegate is of course correct to state that committing bigamy is an offence under section 94 of the Marriage Act 1961 (Cth), however there are certain circumstances in which polygamous marriages have been and may be recognised in Australia.
Finally, the Delegate stated:
“Departmental records also indicate that you have never declared your spousal relationship with Aleena an the birth of your son out of that marriage throughout the process of your subclass 485 and 189 visa applications, in which you applied as a dependent of Yuka Soma even though you were not in a mutual exclusion relationship with Yuka Soma. You have not been honest or truthful in your dealings with the department. You deliberately concealed information and provided incomplete/false information about your personal circumstances during your visa applications to achieve a more favourable migration outcome for yourself, in particular, to secure a permanent visa in Australia.”[13]
[13] Idem.
LEGISLATIVE FRAMEWORK
The Act contains several sections relevant to the Tribunal's considerations in this matter.
Section 20 establishes requirements for becoming a citizen by conferral which require Ministerial approval and the making of the pledge of commitment.
(1) A person becomes an Australian citizen under this Subdivision if:
(a) the Minister decides under subsection 24(1) to approve the person becoming an Australian citizen; and
(b) if the person is required to make a pledge of commitment to become an Australian citizen--the person makes that pledge.
Section 21 lists a series of qualifications which applicants must meet and, in particular requires that they be a person of “good character” at the time of the Minister making his/her decision on their application.
Application and eligibility for citizenship
(1) A person may make an application to the Minister to become an Australian citizen.
General eligibility
(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application; and
(c) satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and
(d) understands the nature of an application under subsection (1); and
(e) possesses a basic knowledge of the English language; and
(f) has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; and
(g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister's decision on the application.
Section 24 mandates that the Minister must make a decision, either to grant or refuse an application.
Minister's decision
(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.
Section 50 of the Act addresses the question of making false statements or representations in support of various citizenship proceedings.
False statements or representations
(1) A person commits an offence if:
(a) the person makes, or causes or permits to be made, a representation or statement; and
(b) the person does so knowing that the representation or statement is false or misleading in a material particular; and
(c) the person does so for a purpose of or in relation to this Act.
Penalty: Imprisonment for 12 months.
(2) A person commits an offence if:
(a) the person conceals, or causes or permits to be concealed, a material circumstance; and
(b) the person does so for a purpose of or in relation to this Act.
Penalty: Imprisonment for 12 months.
The matter of false documentation is also dealt with under the Migration Act 1958 (Cth) which, in section 234 provides:
False documents and false or misleading information etc. relating to non-citizens
(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia:
(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person's knowledge, is false or misleading in a material particular; or
(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
(2) A person shall not transfer or part with possession of a document:
(a) with intent that the document be used to help a person, being a person not entitled to use it, to gain entry, or to remain in, Australia or to be immigration cleared; or
(b) where the person has reason to suspect that the document may be so used.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
GOOD CHARACTER
The Tribunal needs to take into account not just the law on this matter but also the clear statement of the Policy which underpins the administration of that law. One of the requirements for citizenship by conferral (the origin of the Applicant’s citizenship) is that a person should be a person of good character.[14]
[14]Australian Citizenship Act 2007 section 21(2)(h).
In determining what constitutes “good character”, the Tribunal is bound by the decisions of the Courts and assisted by the statement of government policy which is contained in the Australian Citizenship Policy (the Policy) of June 2016.
The Act itself contains no definition of what constitutes “good character”, nor indeed does the Policy.
In Irving v Minister for Immigration, Local Government and Ethnic Affairs, the Full Federal Court stated:
“Unless the terms of the Act and regulations require some other meaning be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. [15]
[15] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 at [85].
The courts have also elaborated by holding that it is further accepted that there should also be some evidence that what a person says, does or what they are heard to say or seen to do should be taken as evidence of their acceptance of the values and norms to which they are expected to adhere and be loyal.[16]
[16] Zheng v Minister for Immigration and Citizenship [2011] AATA 304 at [120].
The Federal Court has distilled the meaning of “good character” in the following terms:
The following principles can be distilled from the authorities about the meaning of the expression “good character” in s 21(2)(h) of the Act. First, it refers to the enduring moral qualities of a person and not to the good standing, fame or repute of that person in the community, although the latter may provide evidence of the former. The expression is not concerned with the physical or intellectual attributes or abilities of a person. Second, the expression does not have a fixed and precise content. Like other broad statutory standards, such as whether an entity is a fit and proper person to hold a statutory licence or whether a decision is in the public interest, the expression imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statutory provisions (cf O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 348 per Mason CJ and 380-382 per Toohey and Gaudron JJ. Third, and as a corollary of the second point, the expression requires a judgment as to whether any proved deficiencies in the moral qualities of a person are sufficient to deny the person citizenship.[17]
[17] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [51] per O’Bryan J.
The Policy itself then goes on from this to outline what the characteristics of good character might amount to. These are set out at some length as expecting that applicants would (inter alia):
·respect and abide by the law in Australia and other countries
·not be violent, involved in drugs or unlawful sexual activity, and not cause harm to others through their conduct (for example recklessness exhibited by negligent or drink driving, excessive speeding or driving without licence or insurance)
·not be associated with others who are involved in anti-social or criminal behaviour, or others who do not uphold and obey the laws of Australia[18]
[18] Citizenship Policy page 147.
The Policy elaborates by attaching to the phrase “enduring moral qualities” the further qualifications, namely:
·“characteristics which have been demonstrated over a very long period of time
·distinguishing right from wrong
·behaving in an ethical manner, conforming to the rules and values of Australian society.” [19]
[19] Ibid page 145.
The good character requirement looks at the essence of the applicant. Their behaviour is a manifestation of their essential characteristics.
Further, the Policy makes clear:[20]
an applicant of good character would:
·be truthful and not practise deception or fraud in their dealings with the Australian Government, or other governments and organisations, for example:
·providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications
·involvement in bogus marriage
·concealment of convictions that could lead to the cancellation or refusal of a visa or citizenship.”
[20] Ibid page 147.
Where an Applicant has any sort of criminal conviction, including convictions in his/her country of origin, these must be disclosed and will be taken into account in assessment of good character.[21] It is important to note that the Applicant does not have any criminal record and there is nothing against him in this regard. The Applicant has provided some character references which speak to his status as an honest, hardworking and contributing member of his community.[22]
[21] Kakar v Minister for Immigration and Multicultural Affairs [2002] AATA 132 at [14].
[22] Section 37 Tribunal Documents A at [58]; [59] and [60].
In relation to the provision of false or misleading information, this Tribunal has set out clearly its view about the provision of false or misleading information to the Department in migration/citizenship matters:
Many of the provisions of the section [i.e. in the Migration Act] are reflected in the regulations, particularly in schedule 4 which sets out the public interest criteria. For present purposes, however, it is important to note that emphasis is given in the first sub-section to the giving of false information, the use of bogus documents and the making of false or misleading statements. These are overall requirements important in the administration of immigration procedures. 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 exercises in visa applications when dealing with the many reasons for coming to Australia.[23]
[23] Jill Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27 at [35].
More recently, that statement has been quoted again with the Tribunal going further to add:
I believe that this principle also adheres when an eligible non-citizen is applying for Australian citizenship. There is a reasonable expectation of the Australian people that a non-citizen will obey Australia’s laws and tell the truth to immigration officials.[24]
[24] Mohammed v Minister for Immigration and Border Protection [2018] AATA 687 at [39].
In Taradel Senior Member McCabe observed:
“I agree that dishonesty in dealings with the department is a very serious matter. The integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history. The department is not in a position to know what the applicants know, after all. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly.”[25]
[25] Taradel and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1255 at [23],
In relation to the provision of false or misleading information to the Australian authorities, I wrote in Nguyen[26]
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.
83. Citizenship cannot be awarded on the basis of false statements. There are no excuses for making false statements in this regard.
84. Equally, it is a hallmark of citizenship to take personal responsibility for one’s own actions and not cast them off onto the shoulders of others.
[26] Nguyen and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1082.
I also said that truthfulness in the completion of government documents, such as applications for visas or citizenship, “is an absolute requirement” and it is the responsibility of a visa or citizenship applicant to ensure that information submitted on their behalf is truthful.[27]
[27] Fang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3686 at [97].
THE RESPONDENT’S EVIDENCE RE A MARRIAGE IN PAKISTAN
On 19 January 2017 two officers of the Australian High Commission in Islamabad, Pakistan made a visit to the Applicant’s birthplace, Rawalpindi to investigate allegations that the Applicant had a wife and child there. The result of their investigations are contained in a formal Site Report.
The officers made contact with two of the Applicant’s brothers (Aziz Ur Rehman and Muneeb Ur Rehman) and the Applicant’s maternal grandfather (Mohammed Sharif). All three agreed that they knew the Applicant (whom they also identified from his photograph produced by the Officers) and agreed to tell the Officers what they knew of the alleged marriage.
The witnesses confirmed that they knew the Applicant was resident in Australia and that he made regular trips back to his local home where he occupied “his old room”. It is necessary to set out in full the subsequent findings of this Site Visit. They are as follows:
“We then asked the parties where the applicant’s wife was. They all answered that she was not at this address but in the other building down the road (where the applicant’s old room is located). I also asked if the applicant had any children and they advised that there was a son with the mother. They advised that the name of the applicant’s wife was Alina Iftahar Dar and his son’s name is Muhib Ur Rehman. The applicant’s family demonstrated no knowledge of the applicant’s claimed wife and children in Australia.
The applicant married Alina four years ago and his son is one year old. The applicant’s mother Aqala Bibi (Alina’s mother-in-law) cares for the applicant’s wife and child. At the time Aqala was in hospital owing to diabetes.
It was confirmed that the applicant regularly sends money home to support his wife and son. This was one through transfers to his mother’s bank account through United Bank Limited (UBL Bank).
We inquired whether there were any photos of the married couple or the applicant and his son. We were then advised that only Aqala would know where these photos were and unfortunately she is still in hospital.
We were offered the opportunity to meet the applicant’s son (no mention was made of the wife) however this offer was declined as the SMO (Senior Migration Officer) considered that I would not assist any further in verifying the allegation.
As an observation, the information that was volunteered largely appeared to come from Mohammed (the grandfather). The applicant’s brothers appeared cagey and reluctant to share information at times.
Findings: The allegation is verified as true. The applicant has a wife and son in Pakistan. The parties interviewed are related to the applicant, know him well and had no reason to mislead us as to the information they provided.”[28]
[28] Site Report: Attachment to Respondent’s Statement of Facts, Issues and Contentions.
The Delegate in their statement of reasons further states:
“Based on this information you would have been married to Alina, who is also your cousin, in around 2013, at that time when you were already married to Yuka Soma in Australia.”[29]
THE APPLICANT’S STATEMENT RE A MARRIAGE IN PAKISTAN [30]
[29] Section 37 Tribunal Documents A at [15].
[30] Applicant’s response to Department’s Notification of 9 February 2018 provided as Applicant’s Submission to the Tribunal dated 25 July 2018.
The Applicant informed the Tribunal that some time, apparently shortly after his birth, (in 1987), his father had discussed with a relative the prospect of his son (the Applicant) being married to the relative’s daughter whose name was Shaheen. The arrangement of such marriages in this fashion is an accepted part of the culture of the Applicant. His father died sometime in 2008, the same year that the Applicant came to Australia on a student visa.
The Applicant met Ms Soma early in his study period in Australia while both were students. He suggests that this was in 2009 or 2010. The Applicant married Ms Soma in August 2011. The Applicant says that he informed his mother (over the phone) of his developing relationship with Ms Soma and that they intended to marry, although he says this was not until sometime in 2011/2012. He told the Tribunal that this was in a period of “tension” within the family, apparently related to the question of whether or not the Applicant’s marriage to Shaheen was going ahead and some other long-standing inert-community issues.
Travel records show that the Applicant made return visits to Pakistan in 2011 (22 November to 25 December); 2012 (1 August to 20 September); 2013 (4 September to 26 September); 2014 (7 April to 29 April); 2015 (21 February to 3 March) and 2016 (27 March to 8 May).
The Applicant readily admits that he met Aleena[31] during one of these frequent return visits to Pakistan and that he had sexual intercourse with her. He says that they had intercourse twice in the one night; that the event took place in one of the family homes and that he used contraception to prevent Aleena becoming pregnant. Nevertheless, Aleena fell pregnant and in September 2015 gave birth to a son (Muhib).[32]
[31] This spelling is used in preference to Alina as it is the spelling given in the Affidavit of the woman in question which appears in Section 37 Tribunal Documents A at [54].
[32] Section 37 Tribunal Documents A at [54].
He stated that he has no continuing relationship with her. He further states that this event occurred when he returned to Pakistan to attend a wedding of his cousin which took place on or about 21 February 2015. He states that this wedding was important because it marked some sort of reconciliation of some of the long-standing family disputes.
He denies that he and Aleena were ever married.
He denies that she is his cousin, if defined as the child of an uncle or aunt, but states that she is a member of his grandfather’s family. In written testimony he stated that Aleena is a member of his grandfather’s brother’s family[33] and in his oral evidence that she was the daughter of his grandfather’s sister.
[33] Applicant’s response to Department’s Notification of 9 February 2018 provided as Applicant’s Submission to the Tribunal dated 25 July 2018 at page [6].
He denies that the child in question is his.
What he states is that when Aleena became pregnant her family confronted her as to who the father of the child might be and she identified the Applicant. Her family then confronted the Applicant’s family and some sort of agreement was reached that Aleena would be taken in by the Applicant’s family and cared for by them.
These details are corroborated by an Affidavit which appears to have been signed by Aleena Iftikhar Dar although the document is undated.[34] They are further confirmed in an Affidavit of the Applicant’s brother (Aziz Ur Rehman).[35]
[34] Section 37 Tribunal Documents A at [54].
[35] Ibid at [52].
The Tribunal also notes that the Applicant appears to have shared some of these details with a colleague of his, Aftab Ahmed who has provided a Statutory Declaration in support of the claims made by the Applicant about his family situation in Pakistan.[36]
[36] Ibid at [56].
The Applicant explains that the threat to women in Pakistan when they are perceived as having had illicit sexual intercourse outside marriage is that they will be subject to the possibility of “honour killing” by members of their family or the community. This may be even more likely if there is an illegitimate child involved.
In order to avoid this possibility the Applicant’s family agreed to give support and shelter to Aleena.
However this arrangement proved stressful for the Applicant’s family and that, as a result, he states that Aleena has now “been taken back by her family.”
The Applicant also states that he has taken his son Ubayy to Pakistan on two occasions, in April 2014 and March-May 2016 (and has provided confirmatory flight tickets); that members of the family have had video calls involving his son and his wife (Yuka) and that he has photographs showing him with his son and one of his brothers and cousins.[37] He hence challenges the Officer’s assertions that his Pakistan family has no knowledge of his Australian wife and child.
OTHER EVIDENCE REGARDING A PAKISTAN MARRIAGE
[37] Applicant’s response to Department’s Notification of 9 February 2018 provided as Applicant’s Submission to the Tribunal dated 25 July 2018.
Ms Yuka Soma
The Applicant provided a Statutory Declaration dated 17 July 2019 signed by his wife (Yuka Soma) in which she states that her husband had gone to Pakistan to attend a family marriage (she does not state the date) and that once he returned he “told me slowly what had happened” in terms of the affair he had with a woman he met on that occasion. The Applicant’s wife details her response to this information but confirms that despite this event occasioning her some difficulties and concerns, she and her husband remain together and now have care and custody of five children.[38] Other aspects of Ms Soma’s evidence will be considered below.
[38] Yuka Soma: Statutory Declaration 17 July 2019.
At some stage in 2012 it appears that Ms Soma was contemplating a divorce from the Applicant, although in her oral testimony to the Tribunal she asserted that she could not now remember many of the details of her thinking at the time. Nevertheless there was an email exchange with the Department in which this matter was canvassed. On 7 January 2013 the Department sought further advice from Ms Soma about her intentions. She replied on 23 January 2013 to address what she characterised as a “misunderstanding” which had apparently led to her initial consideration of initiating a divorce.
She wrote:
“I saw some messages from my husband’s female cousin on his mobile at the end of last year. Thus I talked to her secretly and then surprisingly, she said that she was his wife. Therefore I talked to many of his relatives and everyone said this was not true. I was not 100% sure at this stage as this was a great shock. However I am 100% sure now that she was not my husband’s wife because she just told me that she was only telling a lie as she likes my husband.”[39]
[39] Emails of 7 January 2013; 23 January 2013 and 24 January 2013 attached to the Respondent’s Statement of Facts Issues and Contentions.
In oral evidence to the Tribunal Ms Soma, unprompted, volunteered that this conversation took place with a cousin of the Applicant named Shaheen. When pressed by counsel for the Respondent as to why she had volunteered this name, given that she otherwise claimed faint recollection of the emails, it transpired that Ms Soma had discussed details of this correspondence with the Applicant during a break in the Tribunal’s proceedings despite clear direction by the Tribunal to the Applicant that he was not to discuss the evidence he had previously given with his wife prior to her being called as a witness.
This causes the Tribunal to give less credence to the testimony of Ms Soma than it might otherwise have done and it calls into question the reliability of her evidence on a critical point dealing with the possible relationship between the Applicant and his cousin Shaheen.
The Tribunal is also concerned about the veracity of this email for the following reasons:
·The Applicant gave evidence that text messages on his phone were in the Urdu language (using English/Latin script) and Ms Soma cannot read or speak Urdu – hence it is difficult to comprehend how she saw messages and identified their source;
·Because she cannot speak Urdu and the Applicant’s family members cannot speak English it is hard to determine how Ms Soma would have managed to “talk to many of his relatives” after somehow obtaining their telephone numbers in Pakistan;
·How these communications could have been undertaken “secretly” without the immediate or subsequent knowledge of the Applicant is unclear.
Ms Aleena Dar
There is an Affidavit from Aleena Dar, the veracity of which was not called into question before the Tribunal. It is necessary to quote it in extenso:
“I Aleena Iftikhar Dar (address and date of birth given), had a child Muhib born (date of birth given) I meet Atiq at a function and we had a sexual interaction that very same night. I feel very ashamed to say this. We did not have any relationship I did not even have his phone number. I did not meet Atiq after this encounter. After a few weeks I started feeling unwell and began vomiting. My mother suspected something and took me to our doctor. The doctor told my Mum I am pregnant. My Mum nearly fainted and could not stop crying. I also was so upset and I was so scared from my Dad in what he would do with me. That day itself my dad threw me out of the house. I told him it was because of a guy at the function called Atiq. My parent went to his home after speaking to Atiq’s family he said that that I can only live there and nowhere else. I was lucky that Atiq’s family let me into the house and let me stay. In the beginning Atiq did not believe but he accepted that we had sex. I was very cared (sic) that I will be killed by members of the community. As I have known of situations where poor girls have been killed due to the family’s honour and respect. I am fully aware of the situation that Atiq is married and have 4 children from Yuka and he is residing in Australia. I am lucky of mine and my kid’s life that we have a shelter.”[40]
[40] Section 37 Tribunal Documents A at [54].
Mr Aziz Ur Rehman
The Tribunal also needs to quote extensively from the Affidavit of the Applicant’s brother Aziz, a document which again was not challenged as to veracity by the Respondent. He writes:
“It is with great regret that I would like to share that my brother has illegitimate relations with a women that may have resulted in a child. We do not exactly know if this child is his, however we do know that my brother has a sexual interaction with Aleena who is the mother of this child. Aleena’s parent had come to our family home and started abusing my family that my brother could do such disrespect to their family and our family out of shame and some of family educated member’s pressures we were forced to shelter the girl and child to our home. As, we do not want the issue to go to court or the police. We told the woman’s parent that we will look after the girl in Pakistan the community principles and religious beliefs make it very hard to easily overcome small issues. We still don’t know if the woman is telling the truth, but to save our family from possible court procedure and the police investigation we took it upon ourselves to give her shelter. I felt very bad for the women as well, as she would have been serious trouble from her family for having sexual relations and child out of marriage, sadly, in our community the general punishment that occurs by community member’s is honour killings. I do not want to see this poor woman to die just because my brother had a sexual encounter with her. For Aleena and her son Muhib’s safety we do not talk to everyone about what happened. Most of or elder’s don’t know a bit this issue because we ae scared if they find out about this issue they may cause trouble for Aleena and Muhib. I would like to repeat the fact that we truly do not know if the child is my brother’s son or not.”[41]
[41] Section 37 Tribunal Documents A at [52].
TWO MATTERS FOR CONSIDERATION
There are two matters which have come to the attention of the Tribunal in considering the nature of the evidence before it in terms of written material presented to it.
a) Polygamy
As noted above, the Delegate in making their assessment, has referred, on more than one occasion to the question of the possibility that the Applicant may have entered into a polygamous or bigamous marriage and that this has been a significant factor taken into account by the Delegate is assessing whether or not the Applicant is a person of good character.
The implication in the Delegate’s determination that polygamy is, in all circumstances, contrary to the law in Australia and can never be recognised is not entirely correct. This matter was addressed by the Tribunal in Ghalzai[42]where I was dealing with a citizenship application for a child whose father had genuinely entered into two marriages (both according to Islamic law and custom). I stated
[42] Ghalzai v Minister for Home Affairs [2019] AATA 74.
(49) It is of course, unusual for the Tribunal to be dealing with a case where the wife is a second wife and where there are, at the moment, two separate families consisting of wife and children, one in Australia and one in Pakistan. As father to both, Mr Ghalzai naturally cannot be in two places at once and he can only effectively work in one place at a time to generate the income needed to support two families.
(50) Lest any objection be raised on the basis that acceptance of the citizenship of the child would be giving recognition, within Australia, to a polygamous marriage, the Tribunal points out that this matter was commented upon by the High Court itself in the following terms[43]:
“(32) … statements made in cases like Hyde v Hyde, suggesting that a potentially polygamous marriage could never be recognised in English law, were later qualified both by judge-made law and statute to the point where in both England and Australia the law now recognises polygamous marriage for many purposes.
(33) Once it is accepted that ‘marriage’ can include polygamous marriages, it becomes evident that the juristic concept of ‘marriage’ cannot be confined to a union having the characteristics described in Hyde v Hyde[44] and other nineteenth century cases.”
(51) There are also clear provisions in the Family Law Act 1975 which provide:
“6 Polygamous marriages
For the purposes of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.”
[43] Commonwealth v Australian Capital Territory [2013] HCA 55.
[44] In Hyde v Hyde and Woodmansee [1866] LR 1 P & D, 130, Lord Penzance established the classic formulation of marriage in the following terms: “I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”
In Ghazel v Ghazel the Family Court discussed at length the question of what it termed “potentially polygamous marriage” involving a marriage contracted under Islamic law in Iran and subsequently subject to family law proceedings in Australia. In that instance the Court upheld a submission made by the Solicitor-General on behalf of the Commonwealth that “a potentially polygamous marriage is a marriage that can still be recognised as valid under Part VA of the Marriage Act notwithstanding the 2004 amendments.”[45]
[45] Ghazel v Ghazel and Anor [2016] FamCAFC 31 at [50]. The reference to the 2004 amendments relates to the insertion into the Marriage Act 1961 of a definition of the term “marriage” drawn from Lord Penzance formulation (see preceding footnote) including the words “to the exclusion of all others”.
Leaving aside, for the moment, the question of whether or not there was a first marriage in Pakistan, it was, in the opinion of the Tribunal, wrong for the Delegate to draw adverse inferences about the Applicant’s character simply on the basis that he may have entered into a polygamous marriage.
While concealing evidence of such a marriage would be a highly relevant consideration, the fact of it, in circumstances related to Islamic practice, would not necessarily be so, and hence perhaps should not have been weighed as prominently as the Delegate’s statement of reasons exposes or suggests.
b) Zina and honour killings
The Islamic offence of zina is a serious offence which includes “rape, adultery and fornication between unmarried persons”.[46]
[46] Jamila Hussain, Islamic Law and Society (Federation Press, Sydney, 1999) page 136.
In Islamic law there is some disagreement among jurists as to the penalty for zina which must be applied equally to both men and women.
The Qur’an prescribes 100 lashes, but the majority of the jurists agree that, on the authority of hadith, that the proper punishment for married adulterers is stoning to death, and the unmarried should be awarded 100 lashes.”[47]
[47] Ibid pages 136-137.
There are standards of proof in Islamic jurisprudence to prove zina which must be established by the testimony of four trustworthy Muslim males who must have actually witnessed the act of fornication or sexual intercourse. Zina may also be proved by confession (again with strict standards requiring four instances of confession) or, according to some, but not all jurists, by the birth of an illegitimate child.
However, while, given these hurdles, the juridical proof of zina may be difficult; there is ample evidence of those women (in particular) who are suspected of having committed the offence being punished by their own families or by their communities. So-called “honour killings” are particularly prevalent in countries such as Pakistan and Bangla Desh (formerly East Pakistan).
The Applicant provided to the Delegate, in response to the Notification letter of 9 February 2018 numerous reports and extract from reports dealing with the level of honour killings in Pakistan. The rate of such killings, on the basis of the relationship having brought shame to the family with Pakistan having the highest rate of such killings in the world and accounting for one-fifth of such instances.
The Human Rights Commission of Pakistan lists 460 cases of reported honour killings in 2017, with 194 males and 376 females as victims. Of these killings, 253 were sparked by disapproval of illicit relations and 73 by disapproval of marriage choice. Additionally, out of the known suspect relationship with victims, over 93% were family relationships.[48]
[48] Human Rights Commission of Pakistan, HRCP Archive < See also Human Rights Commission of Pakistan: State of Human Rights in 2018 at pages 71-74 and 179-182.
Concerns about the translation of honour killings from Pakistan (in particular) into the United Kingdom has promoted serious debate in that country and led in January 2017 to a parliamentary debate around the proposed Crime (Aggravated Murder of and Violence against Women) Bill designed to address aspects of this problem.[49]
[49] United Kingdom, Hansard, House of Commons, 31 January 2017, volume 620 column 813 (Nusrat Ghani).
The Delegate, in their statement of reasons stated:
“You claim your family accept this woman and her child into your family because you fear of their wellbeing and safety in Pakistan as you lack confidence in the legal system over there and the honour killings still taking place regularly in Pakistan. As evidence, you provided a number of media articles about occurrences of those tragedies.”[50]
[50] Section 37 Tribunal Documents a at [15].
There is no evidence that the Delegate then gave this matter any attention or consideration. In the opinion of the Tribunal this matter should not have been so lightly dismissed or ignored as it appeared to be.
THE RESPONDENT’S CONTENTIONS
In essence this is what the Respondent puts to the Tribunal:
1.At some stage when the Applicant was a child his father arranged that he should be married to the daughter of a relative – this was most likely the Applicant’s cousin Shaheen but conceivably could have been the more distant relative Aleena (who was born in 1995);
2.In 2012/2013 the Applicant returned to Pakistan, at that stage being married in Australia to Ms Soma, where he consolidated this relationship which had its origins many years before;
3.In February 2015 the Applicant again returned to Pakistan where he had sexual intercourse with Aleena who subsequently gave birth to a child which the Respondent asserts was his child, his own denials notwithstanding;
4.The Applicant’s family in Pakistan when confronted by Aleena’s family with the accusation that the Applicant had fathered a child upon Aleena agreed to give her (and the child) shelter in order to avoid the social shame and stigma and possible severe legal and possibly physical consequences which could result for all parties if they did not;
5.The Applicant’s family has consistently portrayed the Applicant and Aleena as being married and has maintained a confected presentation to this effect within their local community; and
6.The Applicant acknowledged his responsibilities in this matter by making regular financial remittances to his mother in Pakistan, such remittances being used, at least in part, to support Aleena and Muhib.
It is important to note that the Applicant himself had left Pakistan only a few days after the sexual encounter and hence was not at the family home when the accusatory parent arrived and there is no evidence that he was himself directly or immediately involved in making the decision to give shelter to Aleena and Muhib. The Tribunal accepts the proposition put to it by the Applicant that, in circumstances such as this, in the absence of the accused (in this case himself), members of his family might be detained by the police or subject to community punishment in substitution for his presence and hence would have been anxious to make immediate arrangement to protect themselves from any such eventuality.
The Respondent then goes on, in relation to the citizenship (and to a lesser extent, previous visa) application to assert that the Applicant was obliged to declare both his “marriage” with Aleena and his parenthood of Muhib on his application and that failure to do so constituted a deliberate misleading of the Department leading to a decision that the Applicant was not a person of good character and hence his citizenship application should be refused.
CONSIDERATION OF THE EVIDENCE
The Site Visit
The Delegate’s decision rests upon their acceptance of the details of the Site Report from the Senior Migration Officer in the High Commission in Islamabad. The Tribunal has serious concerns about that evidence to the extent it is reflected in the report quoted above. Its concerns are:
1.It does not appear that any attempt was made to speak to the alleged wife of the Applicant. The SMO was told that the woman in question was “in the other building down the road” but apparently she was not visited or interviewed. This was unfortunate as her clarification of matters would have been of value.
2.The same might also be said about the failure to contact the Applicant’s mother with whom he says he shared details of his Australian marriage, but this is understandable given her apparent hospitalisation at the time.
3.No attempt appears to have been made to obtain any documentary evidence of such a marriage during the site visit, or, if it were, then it was obviously not successful. This could have been done via inquiries made to the local civil authorities, registration bodies or to the local Imam or community religious leader(s). The Respondent concedes that there was no formal ceremony of marriage and hence no documentary proof of such could be forthcoming.
4.There does not appear to be anything in the SMO report which establishes that Aleena is the “cousin” of the Applicant despite this conclusion being drawn later by the Delegate.
5.The Tribunal notes the comment of the SMO that most of the evidence was provided by the maternal grandfather (age and state of acuity not stated) while the brothers were “cagey and reluctant to share evidence at times”. The Applicant states that his grandfather is some 85-90 years old and of a highly conservative religious character. Hence he urges that the Tribunal should be cautious about reliance upon his memory and understanding of the complexities of the Applicant’s situation.
Financial transfers
The schedule of financial transfers from the Applicant to his mother (Aqla Bibi) which was before the Tribunal shows payments commencing in May 2012. The payments are at a varying level both in terms of timing (spasmodic) and quantum – from as low as $A230 (02/07/14) to a high of $A1872 (15/12/14).
They then spike suddenly to figures of $A3500 on 12 January 2017 to two payments of $A4500 on 18 January 2017.[51] In oral testimony the Applicant says that these latter transfers were not his money but rather money sent by other relatives of his in Australia who did not have access to money transfer facilities of their own and sent this money back to Pakistan, via the Applicant’s mother, but intended for the use of other persons. The Tribunal sees no reason to disbelieve this.
[51] Schedule of payments per Aussie Forex and Finance, remittance History dated 12 February 2019 attached to Applicant’s Submission.
There appears to be no particular correlation of unusual or increased payments related to putative dates of the Applicant’s wedding or birth of his son. The Applicant states that these payments were not specifically to assist Aleena but were more generally for matters of “family support”.
The financial transfers appear to have commenced in May 2012 midway between two of the Applicant’s return visits to Pakistan. That date does not appear to correlate with any specific activity otherwise recorded in the evidence.
These payments have now apparently ceased, as of November 2016, which the Tribunal does not find surprising given that the Applicant now has five young children in Australia; derives his income (which he gives as $500-$750 per week) solely from taxi driving and that his wife receives no income other than social welfare payments.
Parenthood: Mater semper certa est, pater semper incertus est
There is no doubt that Aleena and her family believe that the Applicant is the father of Muhib and while members of the Applicant’s family continue to express doubts about this they nevertheless have actively promoted, within their local community, the proposition that this is the case. The Applicant continues to deny parenthood on the basis that he practiced contraception on the two occasions on which he admits to sexual intercourse.
While the intimate activities of an application for citizenship are not matters of concern for the Tribunal, the Respondent presses the point that having a child is a matter which an applicant needs to declare, not least reason being that it potentially grants rights to that child under Australian law. If this is the case the Respondent further presses the point that the Applicant had a duty to disclose the fact of parenthood and that failure to do so should count against him.
For this reason alone the Tribunal needs to form its own conclusion.
In recounting the circumstances of the occasion that the Applicant and Aleena had what the Respondent characterised as their “tryst”, or what might more popularly be referred to as a one-night stand, the Applicant says that this took place in one of the family homes and he used contraception.
The Tribunal is not inclined to believe his account.
The Tribunal pressed for a description of the accommodation arrangements during the Applicant’s visit to attend the cousin’s wedding in February 2015. It was told that members of the Applicant’s family lived in either one of three adjacent houses, each themselves of three stories and owned by various family members, or in a house “down the road” owned and occupied by the Applicant’s mother where he usually stayed on his return visits. Each of the houses is inhabited by numerous family members and, it seems improbable to the Tribunal that, in a traditional Pakistani/Islamic community or family an unmarried couple would be able to share a room in any of those houses without arousing serious concerns by other family members.
This may not however have been the case were the couple in question to have been accepted by the family members as being in some sort of approved relationship – the earlier possible betrothal.
Similarly the Tribunal is asked to accept that the Applicant, who claims that this sexual encounter was unplanned and spontaneous just happened to be carrying contraception which he had immediately available and which he thoughtfully used.
Finally the Tribunal notes, and the Respondent pressed the point, that the Applicant has never sought to avail himself of the opportunity to establish or irrefutably disprove paternity by undertaking a DNA test. Such tests are readily available in Pakistan as was evident in proceedings before this Tribunal in Ghalzai, although there is absolutely no obligation on the Applicant to prove this matter one way or another.
In the absence of such proof, all the Tribunal can state is that on the balance of probability it believes that Muhib is the son of Atiq Ur Rehman.
Marriage
The Respondent accepts that there was no formal marriage between the Applicant and Aleena but that the parties in question confected an arrangement to persuade members of their local community that such an arrangement existed.
The Tribunal agrees that the Applicant and Aleena are not legally married and moreover that they are not in a “spousal relationship” as referenced by the Delegate in the reviewable decision.
The Tribunal further believes that the evidence leads to a conclusion that while the Applicant may have been betrothed at an early age it would have been to Shaheen and that he only met Aleena, as he describes, for the first time in 2015 at his cousin’s wedding.
The Tribunal finds it hard to accept that, had the Applicant had a relationship with Aleena as far back as 2012/2013, especially one that can be characterised as having some sort of quality of “marriage” attached to it, that Aleena would not have had a pregnancy prior to 2015 given the Applicant’s return visits to Pakistan in 2012, 2103 and 2014.
The conclusion reached by the Tribunal on review of the evidence is that the Applicant had a single “tryst” with Aleena which resulted in her giving birth to his son but that he was not married to her in any formal sense and that they are not, and never were, in a spousal relationship.
OBLIGATIONS TO DECLARE
This leads to a more difficult question namely: if the Applicant was not married to Aleena (nor in a spousal relationship) and if he believed that he was not the father of a child, what was it that he had to declare to the Department on either his visa or citizenship applications?
It seems to the Tribunal that the answer to that question is – nothing.
The Respondent advances the proposition that when the Applicant completed his Form 80[52] declaration giving personal details for assessment, including character assessment he was obliged to declare both the nature of his relationship with Aleena and the existence of his son. The declaration was signed on 24 August 2016.
[52] Section 37 Tribunal Documents A at [110].
In particular the Respondent states that in answer to question 42,[53] “Do you have a partner?” the Applicant was required to give details of his relationship with Aleena. The term partner includes “wife, husband, fiancé, boyfriend, girlfriend, significant other and de facto.” It does not seem to the Tribunal that any of those terms are appropriate to describe the relationship of the Applicant and Aleena. On his form the Applicant has given details of his relationship with Yuka Soma. Apart from a reference to possibly being widowed, there is nothing on the form to require a declaration of any other relationship other than that of “partner” as defined.
[53] Ibid at [120].
Question 43[54] asks: “Do you have children?” They are defined as including “biological or adopted, children from a current or previous marriage, all step-children and deceased children.” Again, the Applicant has given details of the children which, at that stage, he had with Yuka Soma. Given that he does not acknowledge Muhib as his child it is hardly surprising that he did not declare him, and even if he had so acknowledged it would have been open to him to assert that the child was not “a child from a previous marriage.” The form does not ask for details of ex-nuptial children.
[54] Idem.
Omission of relevant material on official forms is a serious matter, but can only be taken into account as misleading when it is clear that the information being sought must be provided and that it is clear exactly what that information is.
If asked about a partner (as defined) and one does not have such a partner (as defined) it is not the responsibility of an applicant to provide details of other, non-partner, relationships.
If asked about children and an applicant denies having children and there is no legal proof of such parenthood, it is not the responsibility of an applicant to give details of anything else.
CONCLUSION
Since the Tribunal has concluded that the Applicant was not married to, or in a spousal relationship with Aleena at the time of lodging his citizenship application and since the Applicant denies being the father of an ex-nuptial child (and there is nothing which legally establishes the contrary in either case) it cannot be found that he wilfully or deliberately misled the Department by failing to declare either a marriage or a child on his application.
As such, the basis for the Delegate’s decision that the Applicant is not a person of good character cannot be sustained.
IN THE MATTER OF UBBAY UR SOMA AND MUHAMMED UR REHMAN
The application for citizenship submitted by the Applicant included his (then) two minor children, the second and third Applicants.[55]
[55] Since that date there have been three further children born to the Applicant and Ms Soma.
Applications for grants of citizenship by minors are dealt with under section 21(5) of the Act which provides:
Person aged under 18
(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged under 18 at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister's decision on the application.
The second and third Applicants satisfy this requirement.
Were the Applicant’s application to fail in its own right, his children would be able to apply for citizenship themselves but would be subject to the Policy requirements set out in Chapter 7. It provides:
Children under 16 applying individually in their own right
Children under 16 applying individually in their own right would usually not be approved under s24 unless they are permanent residents at the time of application and decision and under policy also are:
·under 16 when applying and living with a responsible parent who is an Australian citizen and who consents to the application or
·usually resident in Australia with a permanent resident responsible parent who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country or
·under 16 when applying, living with a responsible parent who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage (refer to Significant hardship or disadvantage / detriment) or
·an unaccompanied humanitarian minor who falls under the Minister’s guardianship and a delegated guardian has consented to the or
·an unaccompanied humanitarian minor who does not fall under the Minister’s guardianship and their responsible carer has consented to the application.
Without going into detail, the rejection of the applications by the second[56] and third Applicants[57] was contingent upon the failure of their father’s sponsoring application and thereafter upon their lacking the qualification of living with a responsible parent who is an Australian citizen.[58]
[56] Section 37 Tribunal Documents B at [25].
[57] Section 37 Tribunal Documents C at [22].
[58] Their other parent, Ms Soma is a Japanese citizen.
The Respondent agrees that the decision in relation to the Applicant will determine the outcome of the applications for each of the children and that no further determination then needs to be made. One follows immediately upon the other.
DECISION
The Tribunal decides:
The decision of the Minister’s Delegate dated 9 April 2018 refusing the Applicant’s application for citizenship by conferral is set aside; and
The matters are remitted to the decision-maker for reconsideration with the following directions:
a)Mr Atiq Ur Rehman’s failure to disclose the nature of his relationship with Aleena Iftikhar Dar and Muhib Ur Rehman are not grounds for refusal under section 21(2)(h) of the Australian Citizenship Act 2007 (Cth); and
b)the Applications for Australian Citizenship by Conferral of Atiq Ur Rehman and contingent applications of Ubayy Ur Soma and Muhammad Ur Rehman are to be reconsidered having regard to direction (a) of this decision.
I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.........................[sgd]...............................................
Associate
Dated: 1 August 2019
Date(s) of hearing: 18 July 2019 Advocate for the Applicant: Mr J Sharma, Global Visa Help Solicitors for the Respondent: Mr A Keevers, Sparke Helmore Lawyers
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