WMJK and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 4255

WMJK and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4255 (15 November 2018)

Division:GENERAL DIVISION

File Number(s):2017/0209       

Re:WMJK   

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:15 November 2018

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

CITIZENSHIP – application for Australian citizenship – whether applicant of good character – number of false representations – non-disclosure – decision affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth) ss 21(2)(h), 24, 52

CASES

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

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

SECONDARY MATERIALS

Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016

REASONS FOR DECISION

Senior Member A Poljak

15 November 2018

1. Mr WMJK, the applicant, is a citizen of Iran who arrived in Australia on 9 December 2010 as the holder of a subclass 456 (Short Stay Business) visa (“business visa”). The business visa was cancelled on 9 December 2010, on the basis that the applicant was not a bona fide visitor. On 9 March 2011, the applicant was granted a subclass 866 (permanent) visa (a “Protection visa”).

2. On 25 July 2016, the applicant lodged an application for Australian Citizenship (“Citizenship application”) under section 21 of the Australian Citizenship Act 2007 (Cth) (“the Act”).

3. On 17 October 2016, a delegate of the Minister for Immigration and Border Protection (“Minister”) wrote to the applicant informing him that there was information before the Department indicating that he may not be of good character for the purposes of his citizenship application (“procedural fairness letter”). Specifically, the delegate wrote:

   “Departmental records show that you arrived in Australia on 9 December 2010 as the holder of a subclass 456 (Short Stay Business) visa. The visa was cancelled under section 11691 of the Migration Act 1958 on the basis that you were not a bona fide visitor. In an interview at the airport, you claim that you came to Australia for business. You later admitted that you had provided false information and the real reason was to claim protection. You stated that you had paid a broker 32 million rials and that the broker had bribed officials working in the Australian Embassy in Tehran”.

4. The applicant was invited to comment on the adverse information and to provide additional evidence that may assist his claim to be of good character. No response was received, and the procedural fairness letter was returned to sender.

5. On 15 December 2016, the applicant’s Citizenship application was refused. This decision was made on the basis that the Minister’s delegate could not be satisfied that the applicant was of good character for the purposes of subsection 24(1A) and 21(2)(h) of the Act (“the decision”). This is the decision under review in these proceedings.

6. The issue before the Tribunal is whether it is satisfied that the applicant is of good character in accordance with subsection 21(2)(h) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

7. Subsection 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen.

8. Subsection 24(1) of that Act provides that if a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming a Australian citizen. The Minister must not approve the person becoming an Australian citizen unless they are eligible under subsection 21(2): section 24(1A).

9. The Act relevantly provides, at subsection 21(2)(h), that a person is eligible to become an Australian citizen if the Minister “is satisfied that the person is of good character at the time of the Minister’s decision on the application”.

10. Section 52 permits a person to make an application to the Tribunal for review of the decision under section 24 to refuse to approve the person becoming an Australian citizen.

    DEFINITION OF ‘GOOD CHARACTER’

11. The term ‘good character’ is not defined in the Act. Guidance can be found in Chapter 11 of the Citizenship Policy, which came into force as of 1 June 2016 (“the Policy”). Further guidance is provided by the Australian Citizenship Instructions (“the ACIs”), dated 1 July 2014, which detail operational instructions and supplements the policy guidance provided in the Policy.

12. The role of the Policy is to offer guidance on the interpretation of the Act. Although I am not bound to strictly apply the Policy, it is government policy and should be considered if it is consistent with the Act and unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

13. As to the definition of good character, the Policy cites the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at [431]-[432]:

    “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. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion…”

14. The Policy states that the phrase “enduring moral qualities” encompasses characteristics which have been demonstrated over a very long period of time; distinguishing right from wrong; and behaving in an ethical manner, conforming to the rules and values of Australian society. Broadly speaking, the good character requirement looks at the essence of the applicant and their behaviour as being a manifestation of their essential characteristics.

15. The Policy sets out a ‘non-exhaustive’ list of characteristics of good character. Relevantly, a person of good character would, inter alia:  respect and abide by the law in Australia and be truthful and not practice deception or fraud in their dealings with the Australian government, or other governments and organisations, for example by providing false personal information (such as fraudulent work experience or qualification documents) or other material deception during visa and citizenship applications.

16. In Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8], Deputy President Breen discussed the requirement of character in citizenship applications:

    “The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home…The refusal to grant citizenship is not a second form of punishment, which is the domain of the Criminal Courts. It is simply the right of the Australian community to decide whom they wish to have included as fellow citizens, which is a function of State. The refusal does not deprive Mr Fenn of any rights he currently holds, nor does it prevent him applying for citizenship again in a few years’ time when he can demonstrate a longer period of positive contribution to the Australian community”. (Emphasis added)

    FALSE REPRESENTATIONS

17. The applicant made four false representations in his business visa application dated 9 October 2010 and repeated these false declarations to immigration officials on his arrival in Australia. The first false representation was that the applicant stated that he had worked for an animal feed development company in Iran for 2 years and 8 months. He repeated this claim to immigration officials on arrival in Australia but then later admitted that the claim was falsified. In his protection visa application, the applicant explained that he had been working in a metal-working factory.

18. The second false representation in the business visa application is in response to the questions:

    Have you, or has any member of your family included in this application, ever

    ·been convicted of a crime or offence in your country…; and

    ·been charged with any offence that is currently awaiting legal action?

19. The applicant falsely answered no to both of these questions. During a Melbourne Airport Entry Interview on 9 December 2010 (“Entry Interview”), through the help of an interpreter, the applicant explained that in Iran he was arrested for his “writings” and explained that “it is considered to be a very big crime if you write against the government”. The applicant further explained that he had received two court orders. On one occasion he attended and was detained for one week in Karoom goal and released on bail with an undertaking. When he received the second court order, the applicant did not attend Court and he became a fugitive. The applicant claimed that he did not wish to return to Iran and explained, “definitely I am going to jail for 16 years because I have written things against the regime on my website. Website was reporting daily events and activities about executions and people who were in jail. Exposing the Iranian dictatorship”. The applicant reiterated these claims in his protection visa application, which was granted on 9 March 2011.

20. The third false representation that the applicant made in his business visa application was in regards to his relationship status. He falsely advised that he was married. The applicant reiterated this claim on his arrival in Australia. The transcript of the Entry Interview reveals that the applicant advised “I am married. My wife is in Iran, and…the Australian Embassy… my - proof of my wife, proof of my house, proof of my business…“. Later in the Entry Interview, the applicant accepted that the statement about his marital status was false and that he was not married.

21. The fourth false representation the applicant made in his business visa application was that the general purpose of his journey to Australia was for business. The applicant repeated this claim during his Entry Interview and stated that he was a production manager for a company making animal food. The applicant later admitted that the claim was falsified.

    Claim that the applicant was not involved in his Business Visa Application

22. There is some discrepancy in the evidence about the applicant’s involvement in the making of his business visa application. Contemporaneous documentary evidence indicates that the applicant was involved in applying for his business visa, namely, in the application form the applicant states that he had no assistance with the application; the application was signed by the applicant; and the payment invoice dated 6 October 2010, indicates that the applicant paid the fee for the visa application. During the Entry Interview the applicant said that he had paid an Iranian local broker named “MJ” to obtain an Australian visa for him. He claims he paid the broker “…about 32,000 Australian dollars or maybe a bit more” and the broker paid “officials” … “…Australian or another Australian staff member within…” to get his visa. He said, “I have been into the Embassy on four occasions in order to get my visa and give me my passport. I have been inside the embassy car park or the High Commission car park”. When advised about the potential cancellation of his business visa, the applicant said, inter alia:

    “Legally I tried to leave Iran. So because I was a website writer I was reporting about events in Iran and…through the broker. I contacted the embassy…and I went to get the visa because I was legally trying to leave Iran I had no choice”.

23. In a statutory declaration dated 20 April 2017, the applicant now claims that his father was involved in all dealings to do with his business visa application. He states:

    “I have always been truthful and never practiced fraud or deception in dealings with government.

    The delegate was inaccurate in incorrectly asserting that I had paid a broker 32 million rials to secure the initial visa. I played no part in the preparation and lodgement of that initial application.

    My father, fearful and anxious to secure me a safe haven from the persecutory threats that I faced at the time - as explained in my protection visa application - made all the arrangements with the person he names in his attached notarised statement. (I do not recall whether I even signed any application forms)”.

24. In a further statutory declaration dated 20 June 2017; the applicant claims that it was his father who paid money to secure his visa. He states,

    “…negotiating to secure the visa from the Australian Embassy in Tehran was not conducted by me. My father has already made a statutory declaration and made it precisely clear that it was him who dealt with the person and paid him the money to secure the visa”.

25. At hearing, the applicant reiterated that he did not complete his business visa application form and claimed that he only saw the form for the first time (approximately one hour before) an interview at the Embassy. He said that he did not know that the application was for a business visa and that he had “face-to-face” meetings with the broker to discuss the questions that would be asked by the Embassy and the broker gave him “set” answers to the questions. He says that his father organised everything. The applicant claimed that he didn’t look at the papers before signing them and despite being listed under ‘payer’s name’ on the invoice for the business visa application; he claims that he didn’t know anything about it.

26. The applicant’s father, Mr J WMJK, gave evidence in these proceedings orally at hearing and by way of a statutory declaration dated 13 April 2017, in which he states that all payments of expenses and contact with the broker were through him. He states, “…my son has not had any type of involvement in the affairs related to this, (Mr MJ’s), actions and Mr MJ has taken all the actions for securing the visa”. At hearing, this was again confirmed by Mr J WMJK.

27. Mr Craig Barnsley, a Senior Migration Officer based at the Australian Embassy in Tehran, states in an affidavit, affirmed 31 August 2017:

    “6. If Mr MJ had acted for the applicant, there would have been a record confirming his involvement…Based on my observations of Annexure CB-1 [the applicant’s application for the 456 visa], my experience of processing visas and documentary requirements, I am of the view that the applicant’s 456 visa application was submitted by him personally, and after paying the normal required fee, and no more. I also note the payer’s name and applicant’s name on the receipt provided from the application is in the name of [the applicant], meaning that he must have paid for the application in his own name and from his own bank account. If a third party, such as Mr MJ had paid for the visa application the receipt would name Mr MJ under ‘Payer’s name’.

    7. There is no indication that this 456 visa was processed differently to any other application. There is no evidence that Mr MJ was involved in this application, or for that matter, any other visa application”.

28. I accept the evidence of Mr Barnsley. Having specific regard to the contemporaneous evidence, I am satisfied that the applicant was involved in the preparation and lodgement of his business visa application. Specifically, that in the application form the applicant states that he had no assistance with the application; the applicant signed the application form; and the payment invoice indicates that the applicant paid the fee for the visa application. On the available evidence, I am unable to make any findings about the bribery claims concerning a government official within the Australian embassy.

    Citizenship Application

29. Most recently, in his application for citizenship dated 25 July 2016, the applicant again failed to disclose his arrest, detention and outstanding court orders in Iran. In response to questions under the heading ‘character declarations’ the applicant answered ‘no’ to all of the following questions:

    Has the applicant been convicted of, or found guilty of, any offences overseas or in Australia (include all traffic offences which went to court, including offences declared in your permanent resident application, and any ‘spent’ convictions)?

    Has the applicant been confined in a prison or in a psychiatric institution by order of the court made in connection with criminal proceedings overseas or in Australia?

    …

    Is the applicant aware of any proceedings pending against them overseas in Australia for an offence, including proceedings by way of appeal or review?

    …

    Has the applicant ever been charged with any offence overseas or in Australia that is currently awaiting legal action? [Emphasis added]

30. At hearing, the applicant said that he completed the Citizenship application form online. He claims that he answered ‘no’ to the character declaration questions because he didn’t believe that he had done anything wrong in his country, he didn’t know if the proceedings in Iran were still on foot, and he doesn’t believe he is a criminal or a guilty person.

    MITIGATING FACTORS

31. Since arriving in Australia the applicant has started a new brand of hairstyle business with a business partner and is looking to expand the business in the future. I accept that he is making a positive contribution. Also of significance is the fact that since arriving in Australia, the applicant has abided by the laws of Australia and has no disclosable Court outcomes in his National Police Certificate. These are factors which weigh in favour of a finding that the applicant is of good character.

32. The applicant relies on a number of character references in support of his application. All of which I have read and considered. The characteristics described in the references demonstrate qualities of someone with good character but I am not satisfied that they outweigh the applicant’s prior history of providing false declarations in his business visa application and to customs officials and his non-disclosure of his arrest, detention and outstanding court orders in Iran. Accordingly, the weight I give to the references provided is minimal.

    CONSIDERATION

33. The applicant contends that his ‘credibility and integrity’ was checked during his protection visa application. This submission conflates the test for the grant of a protection visa and the issues considered in his protection visa application. An application for a protection visa may be refused on character grounds under section 501 of the Migration Act 1958 (Cth). However, consideration of an applicant’s character is only enlivened if the applicant fails to pass the prescriptive character test. The applicant was not found to fail the character test and as such his character was not assessed as part of the protection visa application. Additionally, making false declarations or failing to disclose past criminal conduct is not relevant to his protection visa application. In other words the false declarations made by the applicant in his business visa application and the false claims made to immigration officials on his arrival in Australia were not taken into consideration. As such, the applicant’s successful protection visa application does not automatically mean that the applicant is of good character in regards to his Citizenship application.

34. As already stated, I find the applicant has abided by the laws of Australia since his arrival and he has made a positive contribution. His character references demonstrate that he is seen as a valued member of the community. However, his past history of making false declarations on his business visa application and to immigration officials on his arrival in Australia weighs against a finding of good character. A person of good character would be truthful and not practice deception or fraud in their dealings with the Australian government, or other governments and organisations.

1. The applicant’s non-disclosure in his citizenship application of his arrest, detainment and outstanding court orders in Iran is fairly recent. The applicant applied for Australian citizenship in July 2016. I do not accept the applicant’s explanation about why he did not disclose this history as he would plainly have been aware of the significance of these events through his previous dealings with the Australian government. Whether or not he believes he has done anything wrong or is guilty or a crime is irrelevant.

   DECISION

2. In considering all of the relevant circumstances and weighing the available evidence, I am not satisfied that the applicant is a person of good character within the meaning of subsection 21(2)(h) of the Act. Accordingly, he is not eligible for Australian citizenship.  

3. The applicant is able to make a fresh application for Australian citizenship in the future.

4. The decision under review is affirmed.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 15 November 2018

Date(s) of hearing:	5 February 2018
Solicitors for the Applicant:	A Farazdaghi, Australian Migration Network Pty Ltd
Solicitors for the Respondent:	J Hutton, Australian Government Solicitor