Waraich and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)
[2022] AATA 4232
•9 December 2022
Waraich and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship) [2022] AATA 4232 (9 December 2022)
Division:GENERAL DIVISION
File Number: 2018/0571
Re:Randeep Waraich
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Theodore Tavoularis
Date:9 December 2022
Place:Melbourne
Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision of the Respondent Minister dated 9 January 2018 revoking the Applicant’s Australian citizenship pursuant to s 34(2) of the Australian Citizenship Act 2007.
.........................[SGD]..................................
Senior Member Theodore Tavoularis
Catchwords
CITIZENSHIP – decision to refuse application for citizenship by conferral – good character test – convictions for false and misleading statement – public interest – decision set aside and substituted by the Tribunal in 2018 - Minister appeal upheld and Tribunal’s decision set aside - Matter remitted to the Tribunal - decision under review affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Migration Act 1958 (Cth)
Cases
Eidson and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1354
Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292
Minister for Home Affairs v Waraich [2020] FCA 1513
Waraich and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4524
Visa Cancellation Applicant v Minister for Immigration and Citizenship [2011] AATA 690Table of Contents
Introduction
Statutory framework
The Applicant’s immigration history
Issues
Consideration of the Evidence – Going to the Question of the Public Interest
Consideration of the Evidence – Going to the Question of Exercise of the Discretion
Summary of Findings and conclusion
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
9 December 2022
Introduction
The decision under review
On 9 January 2018, the Minister for Immigration, Citizenship and Multicultural Affairs[1] (‘the Respondent’ or ‘the Minister’) exercised his discretion under s 34 of the Australian Citizenship Act 2007 (Cth) (“the Act”) to revoke the Australian citizenship of the Applicant. Section 52(1)(f) of the Act facilitates review of the revocation decision by this Tribunal.
[1] The nomenclature then attributable to the Minister’s portfolio was ‘Minister for Home Affairs and Minister for Immigration and Border Protection’.
Identity of the Applicant
The Applicant was born in India on 25 September 1977. He contends that his birth name was ‘Amardeep Singh’ and, on 11 March 1997 he was issued with an Indian passport in that name bearing registration number A2782411.[2] The Applicant contends that he changed his name from ‘Amardeep Singh’ to ‘Randeep Singh’ while in India on a date that he cannot recall with any precision.[3] He received a fresh Indian passport, bearing registration number E4894324, in this new name.[4] On 13 July 2006 the Applicant was issued with an Indian Birth Certificate in this new name.[5]
[2] Remittal Bundle Part 2 (‘T2’), p 877.
[3] See generally, A2(a), p 3, paras [25]-[27].
[4] T2, p 689.
[5] T2, p 720.
There followed a further change of name ‘in approximately March 2009 from Randeep Singh to Randeep Singh Waraich through Births, Deaths and Marriages Victoria.’[6] There is a ready acceptance of this name being attributable to the Respondent by virtue of (1) its confirmed registration by Births, Deaths and Marriages Victoria; and (2) the recording of that name in the Applicant’s citizenship application.[7]
[6] Ibid, para [28]; see also T2, pp 756 and 835.
[7] R1, p 2, para [11] – in particular, footnote 11 thereto.
The Applicant married Preet Mohinder Guraya in India on 28 February 2004. The relevant marriage certificate records his name as ‘Randeep Singh’.[8]
[8] T2, p 516.
Procedural background
This matter was first ventilated in this Tribunal in 2018. On 5 December 2018, this Tribunal set aside the Respondent’s abovementioned decision under review and, in its place, substituted a decision that the Applicant was entitled to reversal of the decision to revoke his Australian citizenship.[9] There followed a Minister’s appeal against the Tribunal’s decision. On 21 October 2020 His Honour, Justice Anastassiou set aside the Tribunal’s decision and remitted the matter to this Tribunal for further consideration.[10]
[9] Waraich and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4524.
[10] Minister for Home Affairs v Waraich [2020] FCA 1513.
The Applicant appealed the remittal decision of Justice Anastassiou to the Full Court of the Federal Court. On 26 August 2021 the Full Court[11] did not disturb the decision of Justice Anastassiou and otherwise dismissed the Applicant’s appeal. The result of this unsuccessful appeal by the Applicant was that this matter will have its second ventilation in this Tribunal.
[11] Per their Honours, Bromberg, Katzmann and Cheeseman JJ. See: Waraich v Minister for Home Affairs [2021] FCAC 155.
This second ventilation of the matter proceeded before me on 16 and 17 August 2022. The Hearing received both written and oral evidence. Prior to the Hearing, I caused the written material to be particularised in an Exhibit List which was circulated to the parties. At the commencement of the Hearing I sought and obtained the approval of both parties in relation to this Exhibit List a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.[12] The Hearing received oral evidence from:
·the Applicant;
·the Applicant’s wife, Ms Preet Waraich;
·the Applicant’s daughter, Ms EK;
·the Applicant’s friend, Deshbir Singh;
·the Applicant’s friend, Mr Major Singh;
·the Applicant’s friend, Mr Phulvinderjit Singh Grewel; and
·the consultant psychologist, Mr Tim Watson-Munro.
[12] Transcript Day 1, p 2, lines 18-29.
Statutory framework
Section 34(2) of the Act confers a discretionary power upon the Minister to revoke a person’s citizenship if, inter alia, that person has been ‘convicted of a serious offence’.
It is pertinent to lay out sub-sections 34(2), (3), (4) , (5) and (6) of the Act.
Citizenship by conferral
(2) The Minister may, by writing, revoke a person’s Australian citizenship if:
(a)the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b)any of the following apply:
(i) the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;
(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);
(iii) the person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud within the meaning of subsection (6);
(iv) the person obtained the Minister’s approval to become an Australian citizen as a result of third‑party fraud within the meaning of subsection (8); and
(c)the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
(3)However, the Minister must not decide under subsection (2) to revoke a person’s Australian citizenship if:
(a) the Minister may revoke the person’s Australian citizenship under that subsection only because of the application of subparagraph (2)(b)(ii); and
(b) the Minister is satisfied that the person would, if the Minister were to revoke the person’s Australian citizenship, become a person who is not a national or citizen of any country.
Time citizenship ceases
(4)If the Minister revokes a person’s Australian citizenship, the person ceases to be an Australian citizen at the time of the revocation.
Note:A child of the person may also cease to be an Australian citizen: see section 36.
Serious offence
(5) For the purposes of this section, a person has been convicted of a serious offence if:
(a) the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and person became an Australian citizen.
Migration-related fraud
(6) For the purposes of this section, a person obtained the Minister's approval to become an Australian citizen as a result of migration-related fraud if and only if:
(a) at any time, the person was convicted of an offence against:
(i) section 234, 236 or 243, or former section 244 (as in force before its repeal by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws--General Law Reform) Act 2008), of the Migration Act 1958 ; or
(ii) section 134.1, 134.2, 135.1, 135.2, 135.4 or 136.1 of the Criminal Code ;
that the person committed at any time before the Minister gave the approval; and
(b) the act or omission that constituted the offence was connected with the person's entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia.
[Emphasis in original]
The Applicant’s immigration history
The Applicant first arrived in Australia on a Student Visa. The name appearing on that visa was ‘Amardeep Singh’. On 23 September 1998 his student visa was cancelled as a result of his commission of certain breaches of his work conditions.[13] These breaches saw him detained but eventually released on 9 October 1998 with a Bridging Visa. He then unsuccessfully applied for a Protection Visa.[14] His Bridging Visa ceased on 10 April 2002 and the Applicant thereafter remained in Australia unlawfully. Upon being located by the Respondent Minister’s department, the Applicant departed Australia as an unlawful non-citizen on 20 June 2002.[15]
[13] Remittal Bundle Part 1(‘T1’), p 20.
[14] Ibid.
[15] Ibid.
Following his abovementioned marriage to Preet Mohinder Guraya on 28 February 2004, the Applicant’s wife lodged an application for an Offshore Student Visa which was eventually granted to her.[16] Following the grant of the Student Visa to the Applicant’s wife, he accompanied her to Australia as a dependant Visa Holder on 2 October 2004. Upon entry to Australia the Applicant failed to declare that (1) he had resided here previously; (2) he had previously applied for other Australia visas; and (3) he voluntarily left Australia (in June 2002) to avoid being forcibly removed or deported.
[16] T2, p 482.
The Applicant’s wife did, on 8 September 2006, make an application for a General Skilled Migration Visa.[17] This application included the Applicant as a secondary applicant.[18] This visa was granted to his wife on 14 December 2006 but the Applicant again failed to disclose his previous name by which he was known in this country and his immigration history here.[19]
[17] T2, p 638.
[18] Ibid, p 640.
[19] Ibid, see Question 29.
On 8 May 2009 the Applicant successfully applied for Australian citizenship by conferral, which was granted to him on 14 November 2009.[20] Upon receipt of correspondence advising of the possible revocation of Australian citizenship in December 2013,[21] the Applicant retained legal representation and commenced a dialogue with the Respondent Minister’s department in response to the possible revocation of his citizenship.
[20] T2, p 757.
[21] T1, p 21-22.
There followed the abovementioned: (1) Respondent’s Minister’s revocation of the Applicant’s citizenship on 9 January 2018; (2) the Applicant’s filing of an application for review in this Tribunal on 7 February 2018; (3) the Minister’s appeal before Justice Anastassiou (21 October 2020); (4) the Full Court’s endorsement of Justice Anastassiou’s decision (26 October 2021); and (5) the remittal of the matter to this Tribunal for a second ventilation which comprises the instant proceeding.
Issues
There are two issues before the Tribunal. First, whether it would be contrary to the public interest for the Applicant to remain an Australian citizen. Second, if the Tribunal reaches a state of satisfaction such that it is in the public interest to revoke the Applicant’s citizenship, the resulting question becomes whether this Tribunal should exercise its discretion to in fact revoke that citizenship. These two elements are not mutually exclusive and they must be addressed sequentially.
With reference to the Tribunal’s decision-making framework, it is necessary to re-visit the terms of s 34(2) of the Act. This subsection facilitates the Minister’s revocation of a person’s citizenship in circumstances where the three elements appearing in s 34(2)(a)-(c) are met. Here, there is no question that at the relevant time the Applicant was an Australian citizen pursuant to s 34(2)(a) of the Act. Further, there seems no contest that one of the three sub-paragraphs of s 34(2)(b) of the Act have been met on the instant facts. The Applicant has been (pursuant to s 34(2)(b)(i) of the Act) convicted of one of those stipulated offences. The Applicant has (pursuant to s 34(2)(b)(iii) of the Act) also previously obtained the Respondent Minister’s approval to become an Australian citizen as a result of migration-related fraud within the meaning of s 34(6) of the Act.
The residual issue arising from paragraph s 34(2) of the Act is to be found in s 34(2)(c) and that involves a requirement for this Tribunal to reach a state of satisfaction that it would be contrary to the public interest for the Applicant to remain an Australian citizen. In addition, there is the discretionary test which derives from the terms of s 34(2) of the Act which allows for revocation.
Step 1: Determining Whether Something is in the Public Interest
The term ‘public interest’ is not defined in the Act. There is no fixed formula per se in terms of specific wording to be adopted in applying the public interest test. There is, for example, no difference in applying the test on the basis of whether (1) it is contrary to the public interest for an Applicant to hold or retain citizenship; or (2) whether it is in the public interest that such Applicant should not hold citizenship. As noted by His Honour, Mr Justice Gilmour in TRHL v Minister for Immigration and Border Protection (2016) 152 ALD 488:
‘In any event, in my opinion, in this statutory context, the expression of the public interest requirement under s 34(2)(c) as ultimately put on behalf of the Minister before the Tribunal as being "in the public interest that the appellant not continue to be an Australian citizen" is synonymous with the statutory language that "it would be contrary to the public interest for the appellant to remain an Australian citizen."’[22]
[22] At para [41].
The determination of whether something is in the public interest is, in the final analysis, to be ascertained from the material before the Tribunal including written and oral evidence at the Hearing together with respective submissions put on behalf of the parties. To the extent a weighing exercise is required in determining whether something is in the public interest, the Tribunal must weigh up the relevant advantages and disadvantages to the Australian community arising from the revocation of a person’s citizenship.[23]
[23] Prasad and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 292.
Step 2: Exercising the Necessary Discretion
The only limitation applying to the scope of the Tribunal’s discretion derives from the language and purpose of the Act. Again, it is necessary to have regard to the written and oral evidence before the Tribunal together with any submissions made on behalf of the parties. In the final analysis, the Tribunal informs itself about matters relevant to the exercise of the discretion prior to exercising it.
Consideration of the Evidence – Going to the Question of the Public Interest
The Nature of the Applicant’s Offending
The starting point of any review of the Applicant’s conduct referrable to the public interest test derives from the seriousness of his offending. There can be no question that his conduct has involved a theme of him dishonestly interacting with lawful authority. His convicted offending must be surely regarded as serious. The deliberate withholding or misreporting of information to from an Australian government department having a lawful right to acquire such information is offending of a serious nature.[24]
[24] Eidson and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1354.
At the Hearing, the Applicant readily accepted that he made and furnished false declarations in 2004, 2006 and 2009.[25] Those declarations formed a fundamental part of his interactions with lawful authority which he knew to be false at the time he made and furnished them. These falsities were propounded over an extended period of time and only coincidentally came to light as a result of an investigation conducted by VicRoads which, in turn, notified the Respondent Minister’s department.[26] The Applicant does not, therefore, come to this Hearing with ‘clean hands’ because he did not voluntarily disclose his previous provision of false information to the Respondent Minister’s department.
[25] Transcript, p 14 lines 38-40; p 37 lines 40-42.
[26] T2, p 760-770.
One of the elements in which the Applicant seeks refuge as a means of explaining his fraudulent conduct was to suggest that he created and propounded these falsities as a means of protecting his family. The fatal difficulty with that contention is that he had adopted a position of providing deliberately false information to lawful authority well before he and his now-wife had their children. For the Applicant to now suggest he adopted and maintained these falsehoods as a means of protecting his family is a contention with little or no merit.
The Failed Protection Visa Application and Resulting Circumstances
The Applicant’s tendency towards adopting deliberately false positions as a means of securing an advantage for himself can also be found in his application for a protection visa. At the previous iteration of this matter before this Tribunal, the Applicant freely admitted his protection visa application was not – as it needed to be – grounded upon any fear of harm he would experience upon a return to India. Rather, he conceded that the primary purpose behind his protection visa application was to secure more time for himself in Australia. His provision of fraudulent information to obtain a protection visa is all the more concerning when viewed in the light of him taking almost 20 years to concede that he had lied in his application for that visa.
As things transpired, the protection visa was refused by the Respondent Minister’s department.[27] The Applicant sought to distance himself from this refusal decision by seeking to suggest his then-appointed migration agent had failed to notify him of the protection visa refusal decision and, further, that the same migration agent had caused him – without his knowledge – to become an unlawful citizen of this country. This is what the Applicant said in his statement made on 8 June 2018 at the first ventilation of this matter before this Tribunal:
‘On 30 December 1999 I lodged an application for a protection visa. This application was subsequently refused. I was not advised by agent of the refusal decision. My agent appears to have lodged an application to the Tribunal on my behalf without notifying me, and I also did not receive a copy of that decision. Further, it appears my agent also lodged a request for Ministerial Intervention, which was also refused.
My bridging visa expired as a result of these unsuccessful decisions. However, as I had not received the decisions from my agent, I was not aware that my bridging visa had expired or that I was unlawful.’[28]
[27] T2, p 940-951.
[28] T2, p 985, paras [21]-[22].
As I told the parties at the Hearing, I will not entertain any unilaterally made contention about the conduct of a previously appointed professional person having done or omitted to do something which is now sought to be relied upon by an Applicant before this Tribunal. By all accounts, the subject migration agent is a reputable practitioner with a well-established migration agency business. That practitioner was not afforded the opportunity of giving evidence to explain his/her position in terms of (1) notification of the protection visa refusal decision to the Applicant and/or (2) notification about whether or not the Applicant’s bridging visa consequently expired.
Further, there is nothing from the migration agent’s file before the Tribunal such as to demonstrate any of the matters now unfairly alleged by the Applicant against that practitioner. In those circumstances, I entirely reject the Applicant’s evidence about (1) notification of the protection visa decision; and (2) notification of the expiration of his bridging visa that resulted him being in Australia unlawfully. The Applicant ultimately accepted that the position he had previously taken against his then-appointed migration agent was false.[29]
[29] Transcript, p 14-15, lines 38-47;1-4.
As noted by the Respondent’s representative (with whom I agree) the Applicant’s conduct arising from what he said in his statement made on 8 June 2018 is of concern for two fundamental reasons.[30] The first is that he was knowingly providing false information to Australian government[31] in a formal proceeding tasked with determining whether or not he should retain or lose his citizenship as a result of his past conduct relating to the provision of false information. Second, he had little or no hesitation in falsely attributing blame for the position in which he found himself at the feet of his then-appointed migration agent. This latter evidence could have, on its own, resulted in serious repercussions for that migration agent.
[30] R1 [49].
[31] The Tribunal is, of course, part of the Commonwealth Government Executive.
The position the Applicant took in his statement made on 8 June 2018 was, for all intents and purposes, repeated and relied upon in a later statement made on 27 January 2022. In the latter statement, the Applicant’s claimed agnosticism about his refused protection visa application was subtly re-cast such that he was not able to recall seeing any such refusal decision. To be clear, in the 2018 statement, he said that the migration agent did not tell him about these things. In the 2022 statement, he says:
‘On 30 December 1999 I lodged an application for a protection visa. This application was subsequently refused. I do not recall being advised by agent of the refusal decision and I do not recall seeing a copy of the refusal decision. I cannot recall whether I instructed my agent to lodge an application to the Tribunal with respect to the refusal of my protection visa. I am also not aware that my matter has been referred to the Minister for consideration Ministerial Intervention.’[32]
[32] Exhibit 2, p 1276, para [30].
What is all the more curious, is that while the Applicant in the latter statement propounds an inability to recall things or a lack of awareness of whether something happened (or did not happen) with specific reference to his protection visa application, what he says about the lapsing of his bridging visa and his consequent unlawfulness in Australia is identically worded to what he said in the earlier statement made in 2018. So the subtly changed basis of his agnosticism about his protection visa appearing in his 2022 statement did not find its way into the position he took with regard to the lapse of his bridging visa.
At the Hearing before me, the Applicant sought to propound a position of not being able to recall or particularise something from his past because at that time, he was said to be experiencing some sort of ‘black period’ or ‘black time’ in his life and that this claimed melancholia was the reason for his now-asserted inability to recall certain things.[33] The difficulty with that contention is that the claimed melancholia lacks contemporaneity with the Applicant’s past evidence and previously taken positions. The first basis on which to reject the melancholia contention of those is that there is little or nothing to cavil with the reality that he received written acknowledgement (on 11 July 2000) of the Refugee Review Tribunal’s (‘RRT’) receipt of his application to review the initial refusal decision for his protection visa and, further, that by letter dated 1 March 2002 the Applicant was notified of the RRT’s decision to again refuse the protection visa.
[33] (n 29).
The second reason to reject the ‘black period’ or ‘black time’ contention is that at the previous ventilation of this matter before this Tribunal he was clearly asked whether he lodged an application to the RRT for review of the initial decision refusing his protection visa. The Applicant gave firm and clear answers which in no way could now be construed as him not being able to recall what his then-appointed migration agent did or did not tell him. This is what he said at the previous hearing:
‘MS JACKSON: You lodged the application for review?
APPLICANT: Yes.
MS JACKSON: In your declaration to this tribunal, you say at paragraph 21 that you were not advised by your agent of the refusal decision. That's not correct, is it?
APPLICANT: No.
MS JACKSON: So you signed a false stat dec in this tribunal proceeding?
APPLICANT: Yes.
MS JACKSON: It also says your agent lodged an application to the tribunal on your behalf without notifying you. That's not correct, either?
APPLICANT: Yes, that's right.’[34]
[34] Remittal Bundle (Exhibit 2), p 1123, lines 25-31.
The third reason to reject the ‘black period’ or ‘black time’ contention is on the basis that there is no doubt he received the refusal decision in March 2002. This is because the address appearing in the abovementioned notification from the RRT (in July 2000) that it had received his application for review of the initial protection visa refusal decision, was the same address to which the RRT’s decision (from March 2002) was sent to the Applicant. He conceded as much at the previous ventilation of this matter before this Tribunal:
‘MS JACKSON: So when the application was refused, your agent told you that it was refused?
SENIOR MEMBER: You need to speak up and answer the question?
APPLICANT: Yes, I don't remember.
MS JACKSON: You don't remember - - -?
APPLICANT: Yes.
MS JACKSON: - - - whether he told you?
APPLICANT: Yes.
MS JACKSON: If you turn in that bundle to page 953, this is a fax from the tribunal to the department telling the department about a new review application - - -?
APPLICANT: M'mm.
MS JACKSON: - - - for a protection visa which has been lodged in your name. It says your name there halfway down the page, and your address, still the same address as we just looked at before, Burnett Street in Nunawading?[35]
APPLICANT: That's right.
MS JACKSON: So you applied for a review to the tribunal at that time in 2000?
APPLICANT: Yes.’[36]
[35] Note: this is a mis-transcription of the Applicant’s address. The Applicant’s address appearing in both the RRT’s written acknowledgement of receipt of the application for review (12 July 2000) is the same as the address appearing in the RRT’s notification letter (1 March 2002). That address is ‘3/21 Burnt Street, Nunawading, Vic, 3131.’ I am satisfied that the refence to ‘Burnett Street in Nunawading’ in the Transcript of the first Tribunal hearing is a reference to ‘Burnt Street Nunawading’.
[36] Remittal Bundle (Exhibit 2), p 1123, lines 4-21.
The fourth difficulty with the ‘black period’ or ‘black time’ contention is that it has minimal support from a clinical perspective. The Applicant sought to rely on the evidence of consultant psychologist Mr Tim Watson-Munro. Mr Watson-Munro’s report (dated 14 February 2022) appears in the material.[37] Mr Watson-Munro’s views seem predicated on the present and the future. Where he does talk about the past, it is with reference to the motivation behind, and circumstances around, the Applicant’s change of name together with the Applicant’s attitude towards his past convictions, including any remorse he may now have.[38] But there is nothing in the written report pointing to or otherwise explaining how, if at all, the Applicant’s past claimed ‘black period’ or ‘black time’ either (1) then caused him to do certain things or (2) now cause him to not be able to recall things.
[37] Exhibit 8.
[38] Ibid, p 12, para [1] and [2].
The position on this issue with Mr Watson-Munro’s evidence did not improve in the course of his oral evidence before me. In his evidence-in-chief Mr Watson-Munro was taken to his views about the reliability of memory. This question was not put on the basis of a past psychological condition impacting on a person’s capacity to recall things, but more in the conventional sense of whether someone can recall something that happened a fair while ago:
‘MR POYNDER: Thank you. Yesterday we heard evidence from Mr Waraich and his wife about events which occurred essentially between 18 and 23 years ago including the nature of some forms provided to the Department of Immigration and events surrounding visa applications made 18 to 23 years ago. I want to ask you a general question. Is it possible, generally, to make a comment on how reliable memory is, or would be, in relation to events which occurred 18 to 23 years ago?
MR WATSON-MUNRO: I’m not an expert on memory, however the literature suggests that memory is fluid, that it can be affected by external factors. Some research suggests that rehearsing the memory can lead to contamination and what can happen is that if there are gaps in memory people endeavour to make it logical by filling the gaps, as it were. And so this is described as retrieval enhanced suggestibility. I see it a lot in clinical practice where the reliability of eyewitness testimony, for example, can be impacted by fluid memory and, of course, the longer the effluxion of time the less memory - the less reliable memory can become.
MR POYNDER: That term, retrieval enhanced suggestibility, is that what we sometimes refer to in court as reconstruction or is that a different thing?
MR WATSON-MUNRO: It’s part of that process. It’s when the person is trying to make sense of what they remember, and there may be gaps, and so that they will - they can become suggestible to extraneous influences. So, someone may prompt them and say well, well it wasn’t a black car, it was a white car, for example, if it’s an eyewitness account of something that happened, and they may adopt that as their memory.’[39]
[39] Transcript (Day 2), p 4, lines 17-40.
In cross-examination Mr Watson-Munro was questioned about whether he had conducted any sort of memory test on the Applicant. In addition, he was asked about whether he had reached any kind of opinion or outlook as to the Applicant’s memory. There was no mention in his oral evidence about the impact of any ‘black period’ or ‘black time’ in the Applicant’s life that can now be said to be impacting on his ability to recall past events:
‘MR SYPOTT: And just lastly in terms of the tele-health consultation you had, you didn’t administer any kind of memory test?
MR WATSON-MUNRO: No. I didn’t. I didn’t administer any test for reasons I’ve discussed.
MR SYPOTT: And you didn’t reach any opinion as to Mr Waraich’s memory?
MR WATSON-MUNRO: Well, he - as I said, he seemed to be a reliable historian. He certainly had, you know, articulated his background history in the Punjab in coming to Australia and so on. There’s no suggestion of organic brain damage or a head injury that may have affected his memory in a dramatic way so I didn’t test his - - - ‘[40]
[40] Ibid, p 13, lines 11-19.
In re-examination Mr Watson-Munro was eventually asked about whether these ‘black phases’ may now have somehow skewed or rendered the Applicant’s memory opaque. Mr Watson-Munro introduced (for the first time in relation to the Applicant) a reference to the concept of ‘cognitive intrusion’:
‘MR POYNDER: The applicant struggled to remember some of the circumstances of that and some of the circumstances of his subsequent application for a protection visa and review of that decision. Is it of an accurate thing to say that a person who suffers from black phases of his life, particularly 20 years ago, may have his memory skewed and made opaque because of this?
MR WATSON-MUNRO: Yes. It is. I mean, there’s a phenomenon known as cognitive intrusion where anxiety, depression and so on, and trauma can impact upon the laying down of memory or the retention and recall of memory and that can happen, you know, in recent times. But you’re talking about episodes that occurred, as I understand you, in excess of two decades ago. So, even in the absence of anxiety, depression, trauma and so on people are hard pressed to, I think, to accurately recall events that may have occurred in excess of two decades ago.’[41]
[41] Ibid, p 17, lines 39-47; p 18, lines 1-3.
I found Mr Watson-Munro to be of little assistance as a means of explaining how the so-called ‘black period’ or ‘black time’ in the Applicant’s earlier life somehow now predisposes him to not be able to recall certain things about the circumstances surrounding his protection visa refusal, the lapsing of his bridging visa and what his then-appointed migration agent did or did not tell him about those things. Put plainly, Mr Watson-Munro said general things about the nature of memory and how it may evolve with the passage of time. He did not conduct a memory test on this Applicant nor did he form any concluded opinion on the capacity of the Applicant to recall things. The reference to ‘cognitive intrusion’ was made during re-examination after it had been established that Mr Watson-Munro’s evidence was deficient on the specific issue of the Applicant’s capacity to recall things from the past.
Detection of the Applicant’s True Status by VicRoads
In short, the Applicant failed to disclose his previous identity when applying for a driver license with VicRoads. He made the Application using his second identity and specifically did not tell VicRoads about his first identity because when his first identity did hold a driver license it had been the subject of a suspension period as a result of the accumulation of too many demerit points. The Applicant obtained a renewal of his license under his second identity in 2007 and, in addition, obtained a heavy vehicle license in 2009 under that second identity.[42]
[42] T2, pages 763-761.
In oral submissions made on his behalf, the Applicant’s conduct towards VicRoads was put thus:
‘…He could admit to his migration misconduct but possibly sabotage his wife’s dream or he could just stay quiet and hope that he didn’t get caught - and he chose the latter course - and he almost got away with it. But he didn’t because of the Vic Roads problem.
But he didn’t set out to engage in course of dishonesty from the get-go. He felt - unjustifiably of course, that he felt that he had little choice because he didn’t want to destroy his wife’s dream.
And once in Australia of course, he had to keep his new identity. He couldn’t tell anyone about it - including Preet. So this leads to the 2006 failure to disclose his former name and 2009 in the Skilled visa application, all because he wished to remain in Australia with his wife and children.
VicRoads is the same, or as the children came along, VicRoads is the same. He had to maintain the fiction that he had not previously held a licence in a different name. His evidence was he did this simply out of fear of being caught. So there really was, in my submission, one course of conduct and the Minister put this to the applicant - the Minister put it to the applicant in cross examination, “You had to keep up the story with all the government departments” and that’s true. The applicant agreed with that. You have to keep up the story with all the government departments and that’s why the applicant maintained this fiction.’[43]
[43] Transcript (Day 2), p 30, lines 18-40.
With respect, much of this submission appears misconceived. It is incorrect to now suggest the Applicant’s ‘migration misconduct’ can now be explained by an intention not to interfere with his wife’s aspirations. It is likewise incorrect to say that he could have kept it all quiet and to hope he was never detected. In terms of his entitlement to citizenship of this country, his primary obligation is to the country that grants him that citizenship and to no one else.[44] If he wanted citizenship of this country he should have voluntarily told this country (via its lawful instrumentalities) about his ‘migration misconduct’ and not run the gauntlet of that conduct never being detected.
[44] See Generally: Preamble to the Act.
Likewise, it is both incorrect and disingenuous to suggest that because he did not ‘set out to engage in a course of dishonesty from the get-go’, that such delay is somehow now exculpatory of his ‘migration misconduct’. Clearly, it is not. The reality that VicRoads chanced upon the Applicant’s concealed previous identity completely removes any exculpatory factor from the Applicant’s conduct involving provision of false information to government.
The Impact of the Applicant’s Migration Fraud
There is little or nothing to cavil with the proposition that much, if not all, of the Applicant’s offending conduct under review was committed for the purpose of achieving a specific migration outcome. There are definable elements to his conduct amounting to migration fraud:
·on 20 June 2002, the Applicant departed Australia following his unsuccessful application for a protection visa, the lapsing of his bridging visa and his resulting status of being in Australia unlawfully. This conduct resulted in the imposition of a three year bar upon him again being eligible for the grant of any visa to re-enter Australia;[45]
·on 2 October 2004, the Applicant secured his re-entry into Australia by virtue of him being a dependant to his wife’s student visa application. He achieved this outcome by failing to declare his change of name and migration history to the Respondent Minister’s department;
·on 14 December 2006, the Applicant’s wife’s application for a permanent skilled visa was granted to her. The Applicant was able to be included on his wife’s permanent skilled visa application by virtue of (1) him being a dependant on his wife’s student visa and (2), once again, failing to declare his change of name and migration history to the Minister’s department; and
·by virtue of the Applicant’s residence in Australia for four years, including one year as a permanent resident (via his wife’s permanent skilled visa), he was able to subsequently apply for citizenship by conferral.
[45] Except in compelling circumstances stated in Public Interest Criterion 4014(1)(b) as: that affects the interests of Australia; or compassionate or compelling circumstances that affect interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; justify the granting of the visa within 3 years after the departure.
It can therefore safely be found that the Applicant’s conduct involving the deliberately propounded falsehoods around his earlier identity and migration history saw him receive two visas and a grant of citizenship in circumstances where he was plainly not entitled to those things. I agree with the Respondent’s contention: ‘such conduct undermines the administration of the Migration Act and it is contrary to the public interest for the applicant to hold citizenship as a result of that residence.’[46]
[46] Transcript (Day 2), p 51, lines 41-23.
Has the Applicant’s Conduct Undermined the Objects of the Citizenship Act?
The basic proposition must be that if the Applicant’s ‘migration misconduct’ been known at the time of his application for citizenship, then such application would, in all likelihood, have been refused on at least one of the grounds appearing in s 21(2) of the Act. The further difficulty for the Applicant would have been that the deliberate concealment of his identity for a prolonged period may have given rise to misgivings and concerns in the mind of the Respondent Minister in terms of the identity of the Applicant for the purposes of a grant of citizenship.
It is not at all a stretch of the evidence to suggest (and find) that had the Applicant’s ‘migration misconduct’ been known to the Respondent Minister’s department at the time of his application for citizenship, it is very unlikely he would have acquired such citizenship. It is plainly not in the public interest for the Respondent Minister’s department to be deliberately mislead on issues of such fundamental importance as a person’s identity and character in any application for citizenship. The stark reality for the Applicant is that had his ‘migration misconduct’ been known by the Respondent Minister’s department, he would not only have been denied citizenship, he would most likely never have been allowed to re-enter Australia in 2004 as a dependent on his wife’s then-visa.
Respectfully, the Respondent’s submission is the correct one: ‘…[such conduct] would undermine the purposes of the Citizenship Act, and therefore be contrary to the public interest, for the Applicant’s citizenship not to be revoked.’[47] I so find.
[47] Exhibit 3, p 9, para [41].
The Integrity of the Immigration System
In a previous decision[48] I noted that:
‘[34] To my mind, (1) matters of dishonesty in relation to a person’s identity, and (2) the deliberate perpetuation and deployment of that conduct in dealings with government entities are, indeed, very serious. They are serious for three reasons.
The conduct unnecessarily imperils and frustrates the integrity of the immigration system and, in turn, lowers levels of public confidence in that system… this has become a serious consideration for governments everywhere in the context of the dynamic and dangerous state of the global geo-political climate;
Identity theft and derivative fraudulent conduct costs the community – in terms of total direct and indirect costs to prevent it – something in the order of $2.6 billion per annum. While I accept that perhaps the majority of duly detected identity fraud relates to unlawful attempts by people to induce payment of government benefits to a greater extent than they would otherwise be entitled, I nevertheless cannot discount the seriousness of this Applicant’s conduct. There is no question that her conduct in not disclosing her true identity necessarily gave rise to a deficit in the information paradigm upon which the Department relied. She squarely placed the burden of detecting, proving and actioning the consequences of that deficit on the Department. The cost of that administrative burden was borne by the public;
As touched upon above, the global geo-political situation has radically altered since the turn of the new millennium. It is not pessimistic to imagine and be convinced of an inexorable worsening of this situation. Governments are now charged with a heightened responsibility to protect the citizens whose safety they have undertaken to protect. Like it or not, we live in an age where governments’ surveillance of their populations will intensify as a means of pre-empting and, ultimately, circumventing heinous and catastrophic attacks. Foremost in this endeavour is the capacity of government to properly identify those who reside within, or temporarily visit, its sovereign territory. Any fraudulent conduct that deliberately results in the frustration of that objective and thus in a consequential deficit in the government’s essential field of knowledge for this purpose, is undoubtedly very serious.’[49]
[Internal references omitted]
[48] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354.
[49] Eidson v Minister for Immigration and Border Protection [2017] AATA 1354, pp 10-11, para [34].
I have no hesitation in applying these comments to the Applicant’s conduct now before this Tribunal. It is surely beyond argument that it serves the public interest for government to deter prospective visa applicants from attempting to ‘game the system’ in the way this Applicant has done. The integrity of the immigration system and public confidence in that system are at the forefront of its proper administration. The public is entitled to have confidence in its immigration system and how it is administered. It follows that it is in the public interest to revoke this Applicant’s citizenship on the basis of the extent to which his conduct has directly challenged both the integrity and administration of this country’s immigration system.
Personal Intervention by the Minister
It is, to my mind, no small matter that the Respondent Minister has personally made the decision that it is in the public interest for this Applicant’s citizenship to be revoked. The Respondent has pointed to the views of his Honour Justice Downes in Visa Cancellation Applicant v Minister for Immigration and Citizenship.[50] In that case, Justice Downes was dealing with a visa cancellation pursuant to s 501A of the Migration Act 1958 (Cth) which involved the Respondent Minister’s power to overturn decisions of this Tribunal if, in the Respondent Minister’s opinion, it was ‘in the national interest’ to do so. The Respondent contends that the respective concepts of ‘in the national interest’ and ‘in the public interest’ are broadly analogous.[51] I agree.
[50] [2011] AATA 690.
[51] See Exhibit 3, p 10, para 47.
Justice Downes noted that:
‘…the Minister, where he has the right to make the final decision, has formed the opinion that community values or standards have pointed in favour of cancelling visas when the Tribunal has come to a different conclusion. These are matters which the Tribunal should take into account for the future in assessing in similar cases what “is in the national interest” and what is required by community values or standards.
…
The opinion of a Minister on a matter of discretion and any supporting reasons should accordingly be carefully considered and evaluated by the Tribunal before it comes to a different decision.’[52]
[52] Visa Cancellation Applicant v Minister for Immigration and Citizenship [2011] AATA 690, paras [86] and [90].
I am satisfied that this Tribunal can safely have regard to the opinion of the Respondent Minister to exercise a discretion to revoke the Applicant’s citizenship as a basis of now finding that it is contrary to the public interest for this Applicant to remain an Australian citizen. While this is a consideration that the Tribunal can take into account it is not, in and of itself, a determinative consideration.
Residual Factors
There are several residual factors which I will address purely out of an abundance of caution and not out of any determinative compulsion. First, to the extent the Applicant purports to rely on his recidivist risk assessment as assessed by Mr Watson-Munro, I am
hard-pressed to comprehend the utility of any such risk assessment in terms of this Tribunal now forming a view about whether it is, or is not, in the public interest for this Applicant to remain an Australian citizen. The present exercise to be conducted by the Tribunal is, by definition, a retrospective one. The question is whether, as a result of his past conduct, the public interest is best served by him not remaining an Australian citizen.It is the historical elements of the Applicant’s conduct which talk to that exercise. Future prognostications do not speak to that exercise. Therefore, whatever risk assessment of Mr Watson-Munro the Applicant now purports to rely on is of little or no relevance to that exercise. The Applicant’s conduct has involved identity fraud and false representations to government over a prolonged period. Even a low or low-medium finding of recidivist risk relating to the commission of similar conduct in future does not assist the Applicant. Even the glimmer of the perpetration of such conduct in the future would lead this Tribunal to a finding that it is not in the public interest for him to remain an Australian citizen.
A similar finding can be made about whatever Mr Watson-Munro had to say about the Applicant’s levels of remorse. The fatal difficulty with that evidence is that the Applicant had plenty of time to truly express such remorse by voluntarily disclosing his ‘migration misconduct’ to the appropriate authorities at a time that he knew they did not know about it. But he never did so . He maintained the fraud and deception and said nothing to anyone until his conduct was incidentally detected by VicRoads. Retrospectively expressed remorse must always be received with extreme caution, especially in a case like this where the Applicant had ample time to put such remorse into practical effect by telling the authorities about his misdeeds before they detected them.
It follows that Mr Watson-Munro’s identified ‘protective factors’ militating against the Applicant’s level of recidivist risk are of little moment and speak little, if at all, to any narrative around the public interest insofar as it relates to the Applicant’s continued maintenance of Australian citizenship. Those factors were said to be the Applicant’s engagement in lawful remunerative employment, the support of his wife and family together with an absence of any issues relating to substance abuse. What the Applicant has done – ‘migration misconduct’ – has been done. Only the circumstances of that past conduct can now inform this Tribunal on the specific question of what is/is not in the public interest. Claimed protective factors against future recidivist risk are not informative about this public interest element. At a more fundamental level he had lawful employment at the time he applied for citizenship and has maintained it on a more or less consistent basis since then.
Second, the Tribunal has before it evidence from the Applicant’s wife. As I understood her evidence, it is best dealt with on the basis of significant caution. The Respondent goes so far as to suggest that she purported to ‘mislead the tribunal’[53] but that would be an unfair characterization of her evidence. She is an educated and contemporary lady who has proved to be a very loving and loyal wife of the Applicant and obviously competent mother of their children. She is aware of the stress and uncertainty that this matter has caused her family and, quite understandably, she wants it to go away and preferably on the basis of restoration of her husband’s Australian citizenship status.
[53] Transcript [Day 2], p 57, line 1.
While not necessarily misleading, her evidence was nevertheless intended to assist her husband/the Applicant. In so doing, there was resulting opaqueness and inconsistency in what she said about several things. In both her evidence and that of the Applicant, they told the Tribunal that she had met his siblings at the time of their marriage in India. She was shown a photograph from the material which was taken on the day they celebrated their marriage.[54] The photograph contains (from left to right) images of (1) her brother-in-law; (2) the Applicant (groom of the day); (3) the Applicant’s brother; (4) herself as the bride; (5) her sister; and (6) one of her female relatives.[55] Yet in the form relating to her application for a student (temporary) visa (subclass 570) made on 23 June 2004[56] she:
·fails to identify any siblings of the Applicant – despite being photographed next to at least one of them on the day of her wedding;[57]
·fails to disclose that the Applicant had previously applied for another type of visa in Australia;[58]
·fails to disclose that the Applicant had been (on his own volition) ‘removed or deported from any country (including Australia)’ or ‘left any country to avoid being removed or deported’;[59]
·unconvincingly purported to suggest that any incorrect or inconsistent answers now appearing in this Form were attributable to a third party migration agent who the Applicant engaged to complete the form.
[54] Exhibit 2, p 582.
[55] There are also two children in the foreground of the photograph identified as her niece and nephew.
[56] Exhibit 2, pp 478-499.
[57] Ibid, p 499.
[58] Ibid, p 484 – see ‘no’ answer to question 26.
[59] Ibid, p 491 – see respective ‘no’ answers to question 58.
In her oral evidence she also purported to suggest she knew nothing about the Applicant having used a different name in Australia and that the first she heard about this was when the VicRoads investigator materialised at her house looking into the matter:
‘MR SYPOTT: And so he didn’t tell you anything at that time about the fact that he used to have a different name?
MS WARAICH: We didn’t even talk about anything.
MR SYPOTT: So you only found out about him having been to Australia before 2004 and him having had a different name when VicRoads turned up at your house?
MS WARAICH: That’s right, yes.
MR SYPOTT Were you upset that he’d hidden this from you?
MS WARAICH: Yes, I was. When I came to know, it was like the whole roof crashed on me, the world is ending, I’m going to die.’[60]
[60] Transcript (Day 1), p 47, lines 6-15.
I will not go so far as to suggest (or find) that Ms Waraich’s evidence was intended to be deliberately misleading nor that she would say virtually anything to assist the Applicant. Rather, any fault or deficiency to be found in her evidence is attributable to the Applicant’s lack of candour towards her during the earlier phases of their relationship. It seems more likely than not that he did not tell her about (1) the circumstances of his necessitated removal (on his own violation) from Australia and (2) the real purpose behind his use of a different name in Australia when he returned to this country after marrying her in India. Ms Waraich’s evidence is given by her as a victim of those circumstances. Ultimately, it does not assist this Tribunal in forming any view about whether or not it is in the public interest for the Applicant to be a citizen of this country.
Third, the Hearing received evidence from a number of additional witnesses who comprised (1) Ms EK the Applicant’s 15-year-old daughter;[61] (2) Mr Deshbir Singh;[62] and (3) Major Singh;[63] and (4) Phulvinder Singh Grewal.[64] The evidence of the daughter went no higher than a plea to this Tribunal to grant citizenship to the Applicant as a means of resolving uncertainty and discomfort in the family:
‘SENIOR MEMBER: What do you mean by, “we want everything to work out”? What do you want to work out?
MS EK: We want our father to be able to get his citizenship back so he can be happy and we can go on, like, family trips together. So he can be secure and we don’t need to worry about him being deported, potentially, or anything like that, because we really love our father and if he was ever to leave us, we don’t know what we’d do. So we just hope things can work out so we can be secure as a family again.’[65]
[61] See statement made on 27 January 2022 comprising Exhibit 7.
[62] See statement made on 21 April 2022 comprising Exhibit 10.
[63] See statement made on 21 April 2022 comprising Exhibit 11.
[64] See statement made on 23 April 2022 comprising Exhibit 12
[65] Transcript, p 58, lines 9-15.
The remaining abovementioned witnesses are friends and colleagues of the Applicant whose evidence contains a consistent theme of the Applicant being deserving of Australian citizenship based on their respective assessments of the quality of person they say the Applicant is. Well-intended the evidence of these four witnesses may have been, it does not assist this Tribunal in determining whether it is in the public interest for this Applicant to hold Australian citizenship.
Having regard to the evidence going to the public interest question, I am of the view (and I find) that it would be contrary to the public interest for the Applicant to remain an Australian citizen. Being so satisfied, I will now turn my mind to whether this Tribunal should exercise its discretion to revoke the Applicant’s Australian citizenship.
Consideration of the Evidence – Going to the Question of Exercise of the Discretion
There is little to cavil with the following propositions:
(a)the Applicant’s past offending giving rise to his self-professed ‘migration misconduct’ does constitute serious conduct;
(b)this conduct was knowingly propounded for the specific purpose of maintaining a fiction about his identity as a means of protecting (initially) his visa status to be here and (latterly) his citizenship status of this country;
(c)there is a requirement for general deterrence of such serious conduct in relation to identity fraud that strikes at the heart of this country’s migration system and the objects of the legislation that governs it;
(d)the conduct was of such a nature that it caused the Minister of the day to personally intervene and make a decision that it was in the public interest for the Applicant to no longer hold citizenship of this country;
(e)the Applicant’s acceptance that much of his conduct was fraudulent and serious;
(f)the still-maintained implausibility around other aspects of his evidence such as being caused by his mother to change his name because of unprovable astrological reasons; and
(g)his attempts to sanitize or re-cast his evidence on the basis of a now-claimed inability to adequately recall or explain aspects of his evidence on the basis of past ‘black phases’ or ‘black periods’ in his life which has no support in any contemporaneous clinical finding.
I respectfully agree with the Respondent’s contention made during closing submissions: ‘…ultimately [it] comes down to the applicant not being allowed to bare the fruits of his crimes.’[66] I accordingly exercise this Tribunal’s discretion to revoke the Applicant’s Australian citizenship.
[66] Transcript (Day 2), p 57, lines 39-40.
While of little or no moment with reference to either the question of the (1) public interest or (2) the exercise of the discretion, I will mention and dispose of the following elements for the sake of completeness:
·does the Applicant’s remorse and asserted exemplary behaviour[67] assist him? The short answer is ‘no’. His admission of the inherent falsity of his past conduct only came to light at the previous Tribunal Hearing and, such claimed remorse and exemplary behaviour must be tempered against the remaining inherent implausibility in much of his evidence (and that of his wife);
·does this decision render the Applicant stateless? The short answer is ‘no’. There is nothing in the material to suggest that revocation of his Indian citizenship. He will retain the same entitlement to work and live in Australia as is attributable to any permanent resident of this country;
·does the Applicant risk deportation as a result of the cancellation of his currently-held visa? The short answer is ‘no’. While such a scenario remains a technical possibility, the question goes no higher than speculation. It would be unsafe to allocate any level of determinative weight to a matter of speculation;
·does any adverse impact on the best interests of the Applicant’s two minor children arising from revocation of his Australian citizenship assist him? The short answer is ‘no’. As the Applicant will have the right to remain in Australia on a visa, the current parental bond between him and his children will remain unchanged. The revocation of the Applicant’s Australian citizenship will not impact the Australian citizenship of his wife[68] or that of his children who hold Australian citizenship due to their respective births in Australia;[69]
·it is open to the Applicant to make a future application for Australian citizenship. This will require determination of any such application having regard to the Applicant’s previous conduct.
[67] See, for example, Exhibit 2, pp 787-787.
[68] Exhibit 1, p 280.
[69] Ibid, pp 278-279.
None of the dot-pointed factors in the immediately preceding paragraph support or militate any finding different to my respective findings relating to (1) the public interest question; and (2) the exercise of the relevant discretion.
Summary of Findings and conclusion
Issue 1: Public Interest – section 34(2)(c) of the Act
With reference to the factors informing a decision-maker about whether it is contrary to the public interest for the Applicant to remain an Australian citizen I have made findings about:
(i)the seriousness of the Applicant’s offending; and
(ii)how it now militates in favour of a finding that it is contrary to the public interest for him to remain an Australian citizen;
Issue 2: Exercise of the discretionary power in section 34(2) of the Act
(i)I have found that the factors weighing in favour of exercising the discretion to revoke the Applicant’s Australian citizenship outweigh the factors against doing so; and
(ii)Accordingly, I do exercise the relevant discretion to revoke the Applicant’s Australian citizenship.
Decision
Pursuant to section 43(1) of the Administrative Appeals Tribunal Act (1975) Act, I affirm the decision of the Respondent Minister dated 9 January 2018 revoking the Applicant’s Australian citizenship pursuant to s 34(2) of the Act.
I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.......................[SGD]............................................
Associate
Dated: 9 December 2022
Dates of hearing: 16 and 17 August 2022 Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: Ms C Wong (Senior Lawyer) Solicitors for the Applicant: FCG Lawyers Solicitor for the Respondent: Mr K Sypott (Senior Lawyer) Solicitors for the Respondent: Australian Government Solicitor Annexure A – Exhibit Register
Binder
Index Number
Description of Documents
Date Received
Exhibit Number
1
Hearing Tender Bundle 1 Remittal Bundle Part 1 (pages 1 to 770) 26 OCT 21 2
2 Remittal Bundle Part 2 (pages 771 to 1273) Applicant’s Evidentiary Material 3 Statement of the Applicant dated 27 January 2022 (with attachments) 28 JAN 22 4 Witness Statement of Preet Waraich dated 27 January 2022 28 JAN 22 5 Letter from Ms EK (Applicant’s daughter) dated 27 January 2022 28 JAN 22 6 Report of Tim Watson-Munro dated 14 February 2022 (with CV) 18 FEB 22 7 Letter from Jasvinder Sidhu (Let’s Feed) dated 13 April 2022 27 APR 22 8 Witness Statement of Deshbir Singh dated 21 April 2022 27 APR 22 9 Witness Statement of Major Singh dated 21 April 2022 27 APR 22 10 Witness Statement of Phulvinderjit Singh Grewal dated 23 April 2022 27 APR 22 List of witnesses and evidence 11 Applicant’s Updated List of Witnesses and Evidence 12 AUG 22 Applicant’s Submissions 12 Applicant’s Statement of Facts, Issues and Contentions dated 9 December 2021 9 DEC 21 Respondent’s Submissions 13 Respondent’s Statement of Facts, Issues and Contentions dated 14 January 2022 14 JAN 22 Tribunal material 14 Directions made on 12 October 2021, 30 November 2021, 2 February 2022, 13 April 2022 n/a n/a 15 Confidentiality Order made on 2 February 2022 n/a n/a
1
4
0