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Malekizad and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1271 (20 April 2018)

Last Updated: 17 May 2018

Malekizad and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1271 (20 April 2018)

Division: GENERAL DIVISION

File Number(s): 2017/1943

Re: Majid Malekizad

APPLICANT

And Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal: Robert Cameron, Senior Member

Date: 20 April 2018

Place: Melbourne

The Tribunal affirms the decision under review.

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

Robert Cameron, Senior Member

CITIZENSHIP – application for Australian citizenship by conferral – where applicant does not meet the good character test – failure to disclose existence of siblings living in Australia – making repeated false and misleading statements to the Department – failure to disclose identification documents – decision affirmed

Legislation

Australian Citizenship Act 2007

Cases
Irving v Minister for Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422

Re: Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Khorn v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 705

Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148

Re Dovey v Minister for Immigration and Multicultural Affairs [2001] AATA 935

Secondary Materials

Citizenship Policy


REASONS FOR DECISION


Robert Cameron, Senior Member

20 April 2018




INTRODUCTION.

  1. The Applicant (“Malekizad”) on 3 April 2017 made an application for a review of the decision of a Delegate of the Minister for Immigration and Border Protection (“the Minister”) refusing an application for Australian Citizenship by conferral under the Australian Citizenship Act 2007 (“the Act”) made on 8 March 2017,[1] (“the Decision”[2]).
  2. The Application for Australian Citizenship (dated 2 June 2015) was lodged by the Applicant with the Minister on 3 June 2015.[3]
  3. The Application was refused by the Minister on the grounds that the Applicant did not satisfy the good character requirement under section 21(2)(h) of the Act.[4]

THE RELEVANT PROVISIONS OF THE ACT

  1. The relevant sections of the Act are as follows:
  2. Section 21(1) provides:
(1) A person may make an application to the Minister to become an Australian citizen.
  1. Section 21(2) provides:
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.

  1. Section 24(1A) provides:

(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).

THE EVIDENCE

  1. The evidence consisted of the documentary material contained in the T Documents filed by the Minister under section 37 of the Administrative Appeals Tribunal Act 1975 which were received in evidence.[5]
  2. Additionally, there was the viva voce evidence of the Applicant, who was cross-examined by Ms Allan, who appeared on behalf of the Respondent.

SOME OBSERVATIONS ON THE BACKGROUND OF THE APPLICANT AND HIS DEMANOUR IN THE WITNESS BOX

  1. Some observations should be made concerning the background of the Applicant.
  2. He arrived at Christmas Island on 20 September 2010 as an irregular maritime arrival. He was born in Tehran in 1976 and is a Shia Kurd.
  3. Following the mid 2009 Iranian elections he became involved in the “Green Movement” demonstrations. As a result of his involvement with the Green Movement demonstrations he was arrested by the “Basij”.[6] At the time of the arrest the Basij beat his arms and legs with a baton, which led to him suffering a broken left arm near the elbow which required the insertion of a plate. He was also sprayed in the face with some chemical designed to subdue him which caused him to suffer facial burns. Following his arrest he was incarcerated in Evin Prison, situated in the northern suburbs of Tehran. During the course of his incarceration which lasted for eight days he was subjected to interrogation, blindfolding, intimidation and physical abuse.
  4. A fellow inmate with whom the Applicant became friendly during the period of incarceration that he endured in Evin Prison was subsequently summonsed to appear before a Revolutionary Court and was convicted and sentenced to 8 years imprisonment. The Applicant feared that the same fate awaited him.
  5. Following this event the Applicant arranged to leave Iran on false documents and made his way to Australia. Upon arrival in Australia he made a claim for refugee status which was accepted and he was granted a Protection Visa (subclass 866),[7] which he still holds. In accepting his claim for refugee status it was found that his fear of further harm should he return to Iran was not a remote risk and therefore well-founded.[8]
  6. Apparently, he had been educated at school to year six level in the Iranian school system.[9] Notwithstanding his limited education the Applicant impressed me as an intelligent and articulate individual. He demonstrated that he was very much alive to protecting and promoting his personal interests at all times. Overall he answered questions put to him candidly with considerable care and frequently made admissions and concessions where it was appropriate to do so. The Applicant did his best in the witness box. These observations as to his characteristics in the witness box during the course of his evidence assume some considerable importance in terms of an analysis of his previous conduct over some time. This was relied upon by the Respondent in its opposition to the Application in that his behaviour and demeanour in the witness box is at odds with his previous dishonesty with the Department of Immigration and Border Protection (“the Department”).[10]

RELEVANT FACTS

  1. The facts relied on by the Respondent in finding that the Applicant did not satisfy the good character requirement under section 21(2)(h) of the Act were that over the years from his arrival in Australia in September 2010 until a Departmental interview on 5 December 2016 he deceived the Respondent on several occasions both orally and in writing, by failing to advise that he had four siblings who were citizens of Iran living in Australia. The details of these failures (which were admitted by the Applicant) will be canvassed later in these reasons.
  2. The Applicant had during the relevant period consistently stated to the Respondent that he only had two siblings who resided in Iran. Further he advised the Respondent that he did not know anyone in Australia. These statements were false.[11]
  3. Each of the relevant events relied upon by the Respondent, and the Applicant’s position with respect to them, will be chronologically referred to.
  4. On 27 September 2010 in his “DIAC unauthorised arrival interview”[12] in response to question 23 “DETAILS OF BROTHERS AND SISTERS” the Applicant stated that he had two siblings, a sister born in 1970 and a brother born in 1978 whose “Current location” was Tehran. He admitted at hearing that that statement was false.
  5. In response to question 30 of the “DIAC unauthorised arrival interview”[13] he answered “No” to questions asking if members of his family had ever applied for a visa to enter Australia and if he knew anyone who has applied for a visa to Australia including friends, acquaintances and people from his village. Once again he admitted this response was false.
  6. Further, with respect to the “DIAC unauthorised arrival interview” in cross-examination he candidly conceded that he had initialled the document on page 1[14] where it is stated as follows: “Do you understand what I have said? Answer: Yes” and “Do you understand the interpreter? Answer: Yes” both these sentences were initialled by both the Applicant and the interpreter.
  7. He also admitted that the interpreter probably, although he could not recall specifically, read to him the section of the interview document which stated as follows: “You are expected to give true and correct answers to the questions I ask. You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.” In cross-examination he sought to explain his uncertainty concerning this issue by reference to the fact that he was “not in a normal state after the sea trip”.[15]
  8. In response to question 28 “People in Australia (friends/relatives/other)” of the “DIAC unauthorised arrival interview”[16] he was asked the following questions:
  9. His response to each of these questions was “No”. Once again this answer was false.
  10. Question 25 of “Biodata (Persian)”[17] form signed by the Applicant asked for “Details of brothers and sisters” to which the Applicant again stated that he had a sister born in 1970 and a brother born in 1978. In response to a question from Ms Allen the Applicant conceded that it was a straightforward question and that he understood what it was asking. He admitted that the answer was false.
  11. Above the signature of the Applicant at the end of the Biodata form there is a printed statement in the following terms: “Client Statement: The information I have provided is true and correct to the best of my knowledge.” Additionally, in the final part of the form signed by the interpreter there is a further statement in the following terms: “Interpreter Statement: It is my professional opinion that this person has fully understood the questions presented in this form.” Underneath both the “Client Statement” and the “Interpreter Statement” there is the same statement written in Farsi. The Applicant in response to questions from Ms Allen conceded that those statements were correct and that he did sign the document.
  12. On 3 June 2015 the Applicant lodged an Application for Australian Citizenship.[18] “Part L – Declaration” of the Application for Australian Citizenship underneath which the signature of the Applicant appears contains, amongst other things, the following sentences:

WARNING: It is an offence under section 50 of the Australian Citizenship Act 2007 to deliberately make, or cause to make, a false or misleading statement, or conceal circumstances in relation to an application.

And at numbered paragraph 44 at the second dot point also states:

I declare that the information I have supplied in this form is complete, truthful and correct in every detail.

In his evidence the Applicant acknowledged the existence of these clauses, that he had signed them and understood their force and effect.

  1. A “Form 80 – Personal particulars for assessment including character assessment”[19] was signed by the Applicant on 25 November 2016.[20] Question 45 of this document specifically states: “Do you have siblings?” Once again, the Applicant’s response was to identify a sister by then deceased and a brother then residing in Iran. No reference was made to any other siblings residing then in Australia. “Part S – Declaration” has the following endorsement: “WARNING: Giving false or misleading information is a serious offence.” In response to questions put to him he admitted that it was a straightforward question and that the answer was incorrect and false. This response however was qualified by the Applicant who stated that: “Yes. Again there was nobody to translate every line of this, there was a case worker who helped me who was English speaking and I did sign it and I didn’t realise the importance of it.”
  2. The Applicant attended a citizenship Interview on 29 November 2016. The “Record of Citizenship Interview” and “Citizenship Interview Notes” were in evidence.[21] The Applicant conceded that at that interview he understood the interpreter and that the “PURPOSE” of the interview and the “CAUTION” were read aloud to him. The relevant paragraph under the heading “Purpose” states as follows:

Paragraph 21(2)(h) of the Australian Citizenship Act 2007 also requires that applicants must be of good character which means that in assessing your application, I will take into consideration a range of factors including your previous interactions and information you have provided to the Department, and the information discussed during the interview today. Citizenship policy states that an applicant of “good character” would be truthful, honest, and not practise deception or fraud in their dealings with the Australian government, or provide false personal information during visa and citizenship applications.

  1. The relevant paragraph under the heading “CAUTION” states as follows:

Under section 50 of the Australian Citizenship act 2007, it is an offence to make any false or misleading statements or conceal information, and can result in up to 12 months imprisonment. If you provide false or misleading information, your application may be refused.

  1. Underneath this warning the Applicant circled the word “Yes” when asked if he understood what had just been outlined and further agreed that he would answer the questions truthfully and provide as much information as possible. On page 49 of the T documents on the third line there is a question which asks: “Have you answered all questions truthfully and not withheld information?” The Applicant circled the word “Yes”.[22]
  2. On page 51 of the T documents, in the Interview Notes the interviewer has recorded that the Applicant responded with a statement that he had one brother and one sister. When asked if he had any other siblings he responded: “No”. Later at page 55, the handwritten interview notes indicate he was asked “Did you know anyone in Australia before getting on the boat to Australia?” His response was: “No”. Further, on page 56 of the notes he was questioned again about siblings and reiterated that he only had one brother and one sister. At this point the interviewer (Marisa) advised the Applicant that this was his opportunity to be honest and apparently asked about other siblings and put names to him that it was believed he had not provided. His response was that in his home town many families had the same or similar names. A further question was put to him about others that were suspected to be family connections. This was denied by the Applicant and he said further that the connection might have been made by reason of his transferring funds to his mother. He conceded at hearing that the notes were an accurate account of the questions put to him and his response thereto. The responses he gave were false.
  3. The interviewing officer Marisa subsequently put a question to the Applicant in terms of: “Have you been truthful to us about your family?” His response was that he only had a brother and a sister. Once again he conceded that this note contained an accurate record of what occurred at the interview. Whilst admitting these statements were false he sought to justify his conduct in the following terms: “At that moment I was really scared that this might cause trouble to my family in the last few years I had some guesses about the case for my family in Australia and I was afraid that it was going to bring trouble to them.”
  4. A further citizenship interview took place on 5 December 2016. A “Record of Citizenship Interview” was in evidence.[23] During this interview he apologised for withholding information at the previous interview and stated he was scared. He then stated that he had five brothers in his family and two sisters.[24] Once again he readily conceded that the notes of the interviewer accurately recorded what occurred. He further stated when asked why he didn’t disclose the family members previously that he didn’t want to cause any problems for his siblings.[25]
  5. Another aspect of the Applicant’s conduct which was placed under scrutiny by the Respondent and which was the subject of evidence at the hearing of this application concerned the Applicant’s provision of several identification documents.[26] These documents consisted of an Iranian “National ID Card”, Iranian birth certificate, Iranian driver’s licence and an Iranian “Compulsory Military Service Discharge Card”. It should be noted that certified translations of each identity document accompanied the Iranian version. The birth certificate and the Compulsory Military Service Discharge Card state that they were translated on 27 November 2016, which is of course well after the application for Australian citizenship was made by the Applicant, yet the driver’s licence translation is said to have taken place on 8 June 2011. This discrepancy in the dates that each document was translated was not explored in evidence.
  6. However, it does appear that such identity documentation was furnished to the Respondent well after the application for citizenship was lodged. It should be noted that in a Statutory Declaration made by the Applicant on 15 May 2015 (“the May 2015 Statutory Declaration”)[27] he states that he did not have any original identity documentation from Iran. The Applicant did give evidence that he had always had the Iranian driver’s licence but didn’t think of showing it because the immigration authorities wanted the birth certificate “and so on”.[28] As mentioned above, the Iranian driver’s licence was translated on 8 June 2011[29] yet the other identity documents translated over five years later, presumably when he had retrieved them from Iran.
  7. The note of the departmental interview conducted on 29 November 2016 shows that the Applicant produced the identity documents. He was asked by the interviewing officers why they weren’t provided earlier to which he responded his mother was elderly, it was also dangerous to get them and they could get lost. When asked how he got them he stated that an “Afghani guy named Majid who travelled to Iran and collected them from his mother”. He stated that he was not sure of this man’s family name but had met him at the Dandenong market and became acquainted with him and was friendly with him but had subsequently lost contact with him. A similar version of the events was given in cross-examination by the Applicant which was then further amplified in his re-examination when he stated that he had met Majid many times when he went to the Dandenong market as they spoke the same language. He stated that Majid was going to a city in Iran called Mashhad as there were many Afghani people or people of Afghani descent living there and he was visiting. When asked whether he was prepared to trust Majid with these important documents he replied: “Yes I trusted him, he was a friend”. It seems unlikely that one would trust someone, such as Majid, whose surname the Applicant did not seem to know,[30] with retrieving such vital personal identity documents in Iran and bringing them to Australia. The consequences for the Applicant if they were lost in the process are obvious, in that he would have little or no prospect of replacing them and would thereby place himself at some considerable disadvantage in his dealings with authorities in the future. The evidentiary value of such documents to him in support of his application for the conferral of Australian citizenship was extremely strong and would tend to justify careful steps being undertaken to have them retrieved and transmitted to Australia, which did not occur in this case.
  8. The contention of the Respondent was that this explanation on the part of the Applicant as to how the identity documents were recovered from Iran was implausible. Further, there is a reference in the decision of the Respondent that the Afghani person from the Dandenong market had gone to Iran from Iraq.[31] It does not emerge from any of the documentary evidence where this came from but the Applicant was adamant in cross-examination that he had never suggested to the Respondent that the person concerned was travelling to Iran via Iraq.
  9. I agree with the view of the Delegate of the Respondent that the Applicant’s explanation as to how he obtained these identity documents is implausible and tainted with an air of unreality. It is also puzzling that the May 2015 Statutory Declaration would not perhaps have referred to the fact that such documents could have been recovered from Iran in appropriate circumstances as they were in the custody of his mother. Further, the May 2015 Statutory Declaration does not refer to the existence of the Iranian driver’s licence which the Applicant on his own admission said he had in his possession on the date that such Statutory Declaration was made. Given the fact that it was the only official document from Iran in his possession at that time, it does not reflect well on him that it was not referred to. One has to repeat the observations earlier that given the awareness that the Applicant demonstrated of furthering his interests at all relevant times, it seems unusual that he did not see fit to refer to it and immediately produce it to the Respondent at the earliest opportunity including on his arrival in Australia.
  10. Once the Applicant had admitted the existence of all his siblings in the interview on 5 December 2016 the Department sent him a letter on 20 December 2016 inviting him to comment on the admission.[32] The Applicant’s response included a Statutory Declaration made by him on 18 January 2017 (“the Statutory Declaration”).[33]
  11. Disturbingly, the Applicant in his evidence stated that the Statutory Declaration was not completely accurate in that where he declares in the first paragraph that “...as my family had advised me before my arrival that they had not disclosed me on their application to Australia” it was a “mistake”. He stated that the sentence was read to him by an interpreter on the phone before he signed it and then speculated that maybe it was read to him in English and he didn’t really understand. However, when pressed he stated: “Yes it was read to me.” In response to a question from me about whether before he signed it, he understood what the word “perjury” meant he stated: “Yes, I understood that I should write down the truth.” He further reiterated: “You should believe me that this is a mistake and perhaps the caseworker really didn’t understand what I said.” This response is at the very least troubling given, as was observed above, the Applicant at all times in the witness box showed a propensity to be very much alive to protecting his own interests and give his evidence with considerable care. This all the more puzzling given his acknowledgement of the seriousness of a Statutory Declaration which was being made by way of an explanation of his conduct after he had admitted the previous nondisclosure of the existence of some of his siblings. One would have expected him to have exercised extreme care in the making of such Statutory Declaration.
  12. Finally, mention should be made that in cross-examination the Applicant was taken to his application filed in this Tribunal on 3 April 2017. In the relevant area of the application under the heading of: “Why do you claim the decision is wrong?” he states, amongst other things that it was because of some misunderstanding on “the department’s side” as well as from his “side”. When asked to explain what misunderstanding there was on the part of the Department he ultimately conceded that it did not do anything wrong and that he had not been truthful to it on the relevant occasions identified above. The attempt to blame the Department in this way is disappointing conduct on the part of the Applicant.
  13. The sum total was of course that he conceded he had not told the truth about his siblings when he applied for the protection visa, his Australian citizenship and during the first Departmental interview. It was also asserted by the Respondent in the Decision that the Applicant voluntarily confessed the previous false declarations concerning the existence of his siblings for two reasons. Firstly, it occurred more than three years after his arrival in Australia. Secondly, it took place in the context of an application for citizenship therefore it was reasonable to draw the inference that the confession was motivated more by a motivation to be successful with his application for citizenship rather than a genuine intention to be truthful with the department and bring his conduct into line with community standards. It is the contention of the Respondent that in the circumstances where the matters above have been established, the Applicant did not satisfy the good character requirement for the conferral of Australian citizenship under section 21(2)(h) of the Act.

GOOD CHARACTER

  1. The Act does not contain a definition of either good or bad character. The concept however, is well known in the context of immigration law let alone the general law. Frequently, the statement of such a concept of Lee J in the Full Federal Court decision of Irving v Minister of State for Immigration, Local Government and Ethnic Affairs[34] is cited quite properly as an accurate statement of the law. His Honour observed as follows:

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 while the latter is a review of subjective public opinion: see Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25; (1994) 117 FLR 455 per Miles CJ at FLR 459-460; Plato Films Ltd v Speidel [1961] AC 1090 per Lord Radcliffe 1128-9, Lord Denning at 1138. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character: see Re Davis [1947] HCA 53; (1947) 75 CLR 409 per Latham CJ at 416; Clearihan per Miles CJ at 461. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.

  1. Additionally, there is of course the guidance offered by the definition of “good character” contained in the current Citizenship Policy, Department of Immigration and Border Protection (“the Citizenship Policy”).[35] Generally, the Delegate of the Minister will apply the Citizenship Policy in the absence of good reasons for not doing so.[36] He is free to adopt such a policy in order to guide him in the exercise of the statutory discretion, provided the policy is consistent with the statute. Chapter 11 of the Citizenship Policy “Character” is referred to in its entirety for its full force and effect.[37] However, some aspects of the Citizenship Policy warrant reference. The phrase “good character”, which Lee J identified above as a reference to “enduring moral qualities”, encompasses concepts which include:[38]

It prescribes that for a decision-maker to be satisfied that an applicant is of good character he or she must demonstrate “good enduring/lasting moral qualities that are evident before their visa application and throughout their migration and citizenship process.”[39] (Emphasis added)

  1. Further characteristics of good character referred to in the Citizenship Policy include that an applicant of good character would:
  2. It is noted in the Citizenship Policy under the heading “Weighing up the character decision” that when an assessment about whether an applicant is of good character is being undertaken it requires the consideration of an aggregate of qualities. A decision-maker must apply “community standards” and ask themselves the following questions:

...

  1. It is then observed that a decision-maker needs to look holistically at an applicant’s behaviour over a lasting or enduring period of time. It is stated that in most cases this excursion into the history of the applicant’s behaviour will commence at a point prior to any visa application being made.[41]
  2. The obligation of truth and candour (often also referred to as “honesty and integrity”) as being of paramount importance in the immigration process has been emphasised in many cases before this Tribunal. Naturally, an obligation of truth and candour in dealing with decision-makers in the course of the migration process (where the truth is known only to the person making the statement, or likely to be known only to them) is of fundamental importance. It ensures the proper control which this country exercises in citizenship applications, and indeed the overall integrity of the immigration regime that the legislature has put in place. Providing false information or making false and misleading statements, together with incorrect or incomplete statutory declarations, and making allegations about the Department misunderstanding, must of necessity therefore, be regarded as serious misconduct on the part of any applicant whether they apply for citizenship, a visa or any other right under the relevant migration legislation.[42]

CONSIDERATION

  1. Thus, in this context it is possible that an Applicant might be a person otherwise considered to be of good character and in other aspects of his or her life conduct themselves in a way that would be recognised as good, but still be classified or identified as of bad character and therefore unsuccessful in their application in an immigration sense.[43] It should be noted that the Applicant did furnish to the Respondent, in further support of his application after he admitted that he had made false statements as to the existence of his siblings in Australia, no less than nine personal references from various persons as to his qualities.[44] Such personal references included two references from legally qualified medical practitioners and the manager of the Migrant Information Centre all of whom he had readily informed that he had not disclosed the existence of his siblings to the immigration authorities. Six other referees who had either lived with him or known him over some time did not reveal that they were aware of his failure to disclose the existence of his siblings but simply made general observations as to his personal qualities and characteristics.[45] These references, to borrow the terminology of Lee J in Irving, are used in the sense of establishing the good standing, fame or repute of the Applicant in the community, not his enduring moral qualities as contemplated by the authorities referred to above and the Citizenship Policy.[46] Someone is perfectly capable of having good standing, fame or repute in the community but still making false or misleading statements to the migration authorities over a long time span, as was the case with the Applicant in this instance.
  2. In this setting the provision of false information or making false and misleading statements in a visa application and subsequently an Application for Citizenship has been held to assume a special relevance with respect to the character test applicable under the Act and similar other migration legislation.[47]
  3. The Tribunal is concerned that there has been a pattern of behaviour over many years on the part of the Applicant consisting of the following facts or matters:
  4. This pattern of behaviour does not reflect well upon the Applicant particularly given his candid admissions that he knew this behaviour was wrong; that he knew he was lying to the Department and the fact that despite his limited education he was at all times very much alive to protecting his interests. He knew what he did on each occasion was wrong.
  5. One can accept that given his previous experiences during his arrest and period of custody as outlined above, the Applicant held a genuine fear of what might have occurred to him in the event that he was returned to Iran. However, he did not explain, nor does it seem possible, for anyone to rationally assert that there was any proper reason for failing to disclose at the earliest possible opportunity the existence of his siblings in Australia. Indeed quite the contrary, one would have thought it logical and rational for someone in his position to have made this disclosure. It hardly seems the sort of thing that warrants being covered up or otherwise concealed from the relevant authorities as it was.
  6. This concealment is all the more puzzling given the time that lapsed between the initial interviews and provision of information by the Applicant to relevant immigration officials shortly after his arrival in Australian territory and the filing of his Application for Australian Citizenship dated 2 June 2016. If it needs to be said this is a period just short of six years after his arrival. It is not at all clear why after that lapse of time he had not carefully considered the question of whether to tell the truth when making the application. Presumably, having considered the question after having resided in Australia for some years, it should have been apparent to him of the necessity to be truthful.[49]
  7. On an objective assessment of the conduct described above, which is conceded by the Applicant, it does not reflect well on his enduring moral qualities and character as identified in the authorities and the Citizenship Policy. This is notwithstanding the evidence that he gave that he now follows the rule of law as applied in this country. A person of good character would not have behaved in the way that the Applicant did at the relevant time, and to adopt the language of the Citizenship Policy looking at each of the individual facts relied on by the Respondent; his behaviour holistically over more than six years (including only admitting his wrongdoing after applying for Australian Citizenship) reflects badly on him.
  8. Further, it is submitted that this conduct does not meet the expectations of the Australian community and in such a setting the Australian community would expect given the proven and admitted misconduct on the part of the Applicant that citizenship would not be conferred upon the Applicant at this time.
  9. The Tribunal should note that the Applicant can apply for Australian Citizenship in the future. As observed by Lee J in Irving a person who has been found to be of bad character may nonetheless show that he or she has reformed and become a person of good character.
  10. Accordingly, the Tribunal affirms the Decision.

  1. I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Robert Cameron, Senior Member



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

Associate

Dated: 20 April 2018

Date of hearing:
7 February 2018
Applicant:
In person
Advocate for the Respondent:
Ms Ashleigh Allen
Solicitors for the Respondent:
Sparke Helmore

[1] The Application is document T13 of the T Documents (Exhibit R1).

[2] The Decision is document T2 of the T Documents. “ATTACHMENT C – DECISION RECORD” contains the reasons and evidence relied on.

[3] Document T13 of the T Documents, pages 106 to 115.

[4] The last paragraph of the Decision, document T2 of the T Documents, “DELEGATE’S DECISION”.

[5] The Applicant was invited to tender any further documentary evidence that he wished to rely on but did not accept such invitation.

[6] Apparently an Iranian internal security volunteer militia force.

[7] See paragraph 3 of the Decision, document T2 of the T Documents, page 12. At page 145 of the T documents this was described as “1st year Junior High (1 year only).”

[8] See page 8 of Part 5 “Reasoning” of the “REFUGEE STATUS ASSESSMENT RECORD” of Document T18 of the T Documents, page 131.

[9] See paragraph 13 "Educational History" of Document T19 of the T Documents “BIODATA” signed by the Applicant on 21 September 2010.

[10] The Applicant did seek to explain this apparent contradiction during the course of his cross-examination wherein he stated: "I come from a country that is lawless and no one is expected to follow the law; and the last few years I have learned to follow a country that follows the rule of law. I have learned a lot about a country that is run by the rule of law."

[11] In both evidence-in-chief and cross-examination he consistently gave evidence such as: “Yes, I agree that I didn’t reveal in four dates that I had siblings in Australia. Yes I agree.”

[12] Document T20 of the T documents, page 147.

[13] T documents, page 149.

[14] T documents, page 142.

[15] One should observe the interview took place some seven days after his arrival.

[16] T documents, page 148.

[17] The "Biodata (Persian)” form commences at page 133 of the T documents and question 25 is to be found at page 138. It should be noted that in the index to the T documents document T19 "Biodata" is dated 29 October 2010 but an examination of the final page of that document at page 140 of the T documents indicates that it was signed by the Applicant and the interpreter on 21 September 2010. For the purposes of this chronological analysis the date contained in the index to the T documents has been followed. However, nothing really turns upon this issue for the purposes of this decision.

[18] Document T13 of the T documents.

[19] Document T9 of the T documents.

[20] The Applicant’s signature and the date appear at page 74 of the T documents. Of course the applicant readily acknowledged that he had signed the document and provided it in support of his application for citizenship.

[21] Document T8 of the T documents.

[22] There is a question immediately before this question which asked: “Is there anything else that you think is important for me to know that we have not discussed today?” This question did not have the response “YES/NO” to be circled. There is what appears to be a tick in ink on the left hand margin of the page next to this question. One infers that there was no response by the Applicant to the question or he answered no. Certainly, he conceded in his evidence that he did not draw to the attention of the interviewers the existence of his siblings in Australia.

[23] Document T7 of the T documents.

[24] T documents, page 43.

[25] T documents, page 44.

[26] The documents concerned are described as "Applicant's identification documents" in the index and make up document T11 of the T documents, pages 87 to 102.

[27] Document T14 of the T documents, page 117.

[28] I inferred from his evidence that he had this document with him upon arrival in Australia but for whatever reason it was not produced to the immigration authorities immediately upon his arrival.

[29] The stamp on the document at page 95 of the T documents, which states "Official Certified Translation" “Date” then recorded in handwriting “08/06/11”. This is puzzling.

[30] Indeed in the Statutory Declaration of 8 January 2017 he does not refer to the surname of Majid.

[31] See the second paragraph of document T2 in the T documents, page 15.

[32] Document T6 of the T documents.

[33] Document T3 of the T documents.

[34] [1996] FCA 663; (1996) 68 FCR 422 at 431. This case is apposite in that, although it is a visa refusal case under the Migration Act 1958, that Act contained a reference to “good character” and was decided before the 1998 amendments which removed such reference and substituted the “character test”.

[35] The current version commenced on 1 June 2016.

[36] See Re: Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J.

[37] It is found in document T 22 from page 202 of the T documents.

[38] Citizenship Policy, page 145.

[39] Citizenship Policy, page 146.

[40] Citizenship Policy, page 147.

[41] Citizenship Policy, pages 149-150.

[42] By way of example reference is made to the decision of DP Handley in Khorn and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 705 and DP McMahon in Lachmaiya v Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148.

[43] Dovey and Minister for Immigration and Multicultural Affairs [2001] AATA 935 at [27].

[44] These references described as "Letters in support of applicant" are in evidence in document T4 of the T documents, pages 22 to 31. They have been read and considered by the Tribunal.

[45] The Applicant was described by the writers of the references in terms of “friendly and peaceful” (document T4 of the T documents, page 26), "very good and quiet person to live in some units with" (document T4 of the T documents, page 27), "friendly, peaceful and I feel very safe and don't worry about him causing trouble" (document T4 of the T documents page 28), "peaceful, quiet man he never caused any problems to our community" (document T4 of the T documents, page) and "appears to be a pleasant man with a good character" (document T4 of the T documents, page 30). Little weight can be placed on these references where the authors of them have not been informed of the failure to disclose the existence of the Applicant's siblings in Australia and, in such circumstances, what effect this might have on the referee's assessment of the Applicant's character.

[46] All of these references have been considered by the Tribunal in its deliberations in this matter.

[47] Wati and Minister for Immigration and Multicultural Affairs [2000] AATA 984 at [48].

[48] Including when he was in one interview advised that it was the opportunity for him to be truthful.

[49] On several occasions during both his evidence and in final submissions the Applicant did offer an apology in the following terms:

“At the end I want to apologise it is more like something as a misunderstanding and not that I wanted to deceive them.” “Then on that day when they were telling me and a few of them standing around me I was scared. There were three people from immigration.” “The meeting was such that I was scared of immigration. The way the questioning was going I was afraid they were going to cause trouble for my family. I regret it.” (This reference was made by the Applicant to his actions in initially failing to disclose the existence of his siblings in Australia when he first arrived here.)

He later stated:

“Finally, I would like to apologise for this and I am not such a person to deceive it was a result of fear, fear and fear.”

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