Balladraf v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2022-06-17|Before: Bromwich J

The appeal be dismissed.
The applicant pay the respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 The applicant, Mr Saleh Balladraf, applied for Australian citizenship under s 21 of the Australian Citizenship Act 2007 (Cth) in 2018. A delegate of the respondent Minister refused that application under s 24(1) in 2020. Mr Balladraf applied to the Administrative Appeals Tribunal for merits review of the delegate's decision. On 17 December 2021, the Tribunal affirmed the delegate's decision upon the basis of not being satisfied that Mr Balladraf met the citizenship eligibility criterion of being of good character. Mr Balladraf appeals from the Tribunal's decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). 2 Section 20 of the Citizenship Act provides that a person becomes an Australian citizen if the Minister decides under s 24(1) to approve the person becoming an Australian citizen (and, if required to do so, the person makes a pledge of commitment). Section 21(1) provides that a person may make an application to the Minister to become an Australian citizen. Section 21(2) to (8) deals with eligibility. 3 Section 24(1A) of the Citizenship Act provides that the Minister must not approve a person becoming a citizen unless eligible under s 21(2) to (8). Section 21(2) deals with general eligibility, requiring the Minister to be satisfied that the person meets all of the criteria in paragraphs (a) to (h). The last criterion in s 21(2)(h) is that the person "is of good character at the time of the Minister's decision on the application". In conducting merits review, the Tribunal steps into the Minister's shoes as the decision-maker: s 43(1), Administrative Appeals Tribunal Act; see also Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286, especially at [30]-[38] and [96]. Accordingly, in order for Mr Balladraf's application for citizenship to succeed, the Tribunal had to be satisfied that he was of good character at the time of its decision. The term "good character" is not defined in the Act, but has been the subject of numerous decisions of this Court and the High Court, as discussed below. 4 It was not in doubt that Mr Balladraf had engaged in conduct that was contrary to being of good character, including providing false information in his application for citizenship and in a prior application for a partner visa. However, his case before the Tribunal was that he had demonstrated positive personal characteristics that offset his past conduct such that he should be found now to be of good character. 5 Mr Balladraf's appeal from the Tribunal's decision advances two grounds: [1] The Tribunal erred in failing to consider whether the applicant was of good character, pursuant to section 21(2)(h) of the Australian Citizenship Act 2007, at the time of its decision. [2] The Tribunal failed to consider the applicant's submissions that despite his previous conduct he was of good character at the time of its decision. Those grounds of appeal are also reflected in parallel questions of law that are pleaded but do not need to be reproduced. 6 In his written submissions, maintained by his oral submissions, the issues Mr Balladraf identifies as being raised by his appeal are: (a) whether the Tribunal complied with its statutory obligation pursuant to s 21(2)(h) of the Citizenship Act [when read with s 43(1) of the Administrative Appeals Tribunal Act] to determine whether he was of good character at the time of its decision; and (b) whether the Tribunal considered submissions to the effect that, despite his previous conduct, he was of good character at the time of the Tribunal decision, in the sense of directing an active intellectual process towards that aspect of submissions made to it in writing and orally.

The Tribunal's decision 7 The Tribunal described the issues for determination as follows: [6] The primary issue for determination is whether the Tribunal can be satisfied that the Applicant is a person of good character for the purposes of s.21(2)(h) of the Australian Citizenship Act 2007 (Cth) (the Act). [7] In addressing that issue, it is relevant to consider the Applicant's conduct over a number of years particularly in relation to visa matters in relation to his stays in Australia and other countries. 8 The Tribunal then considered key parts of the legislation referred to above, noting the absence of a definition of "good character" and referring to Departmental guidance materials for decision-makers, being the Australian Citizenship Policy Statement and the revised Citizenship Procedural Instruction (CPI). Some weight is placed by Mr Balladraf upon the Tribunal referring to the terms of s 21(2)(h) of the Citizenship Act to support the argument that regard was had, incorrectly, to the time of the delegate's decision in 2020, rather than at the time of the Tribunal's decision on 17 December 2021. I reject that as providing any sound basis, even in part, for that conclusion, especially when regard is had to the express terms of [6] reproduced above. 9 The Tribunal referred to CPI 15 in relation to the assessing good character under the Citizenship Act and its application in a prior Tribunal decision, which neither party suggested was an incorrect approach: [11] CPI 15 is entitled "Assessing Good Character under the Citizenship Act". According to the instructions, good character refers to the enduring moral qualities of a person. It does not mean that a person must be of perfect character. In Zheng v Minister for Immigration and Citizenship [2011] AATA 304, DP Forgie considered that the values a person holds are not to be assessed in the abstract but are measured "in part by what a person says, in part by what a person does and in part by what a person is heard to say and seen to do." [12] In CPI 15.4, reference is made to the proposition that a person of good character would not practice deception or fraud in dealing with the Australian Government. In CPI 15.6, reference is made to the citizenship character assessment as being informed by the Applicant's conduct prior to applying for a visa and during their time in Australia. 10 The above reference to "enduring moral qualities" can be sourced in the Full Court decision in Irving v Minister for Immigration (1996) 68 FCR 422 at 431 per Lee J (endorsed by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [65]), albeit in relation to good character for the purposes of the Migration Act 1958 (Cth), not the Citizenship Act: 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. 11 Lee J in Irving went on to characterise the ordinary meaning of "good character" as entailing an objective assessment apt to be proved as a fact, rather than a mere subjective public opinion. That approach is equally apposite for the assessment of good character for the purposes of the Citizenship Act, especially given the absence of any definition or other legislative guidance. 12 The Tribunal later made the following comments as to additional principles guiding the character assessment process, which again neither party suggested was erroneous: [34] As stated by DP Breen in Fenn v Minister for Immigration and Multicultural Affairs [2000] AATA 931, at [8]:-. The grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community. [35] There is reference in the Policy CPI 15 - 3.3 to the Federal Court and the Tribunal adopting by the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422; at 431-432 where the Court stated:- the words "good character" should be taken to be read in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and the good standing, fame or respect of that person in the community. [36] The Policy goes on to state that:- The phrase 'enduring moral qualities' encompasses the following concept: • Characteristics which have endured over a long period of time; • Distinguishing right from wrong; and • Behaving in an ethical manner, confirming to the rules and values of the Australian society. [37] In terms of determining whether the Tribunal is, or is not, satisfied that a person is of "good character" for the purposes of the legislation involves the exercise of a value judgment (Irving). 13 The Tribunal concisely outlined the material before it going to adverse aspects of Mr Balladraf's character and then discussed that material and the material that was before it going to good character. Because the grounds of appeal as developed are said by Mr Balladraf to turn on the words used by the Tribunal in the relatively small number of later paragraphs containing the ultimate conclusion reached, it is necessary to reproduce rather than summarise what was said (omitting headings and immaterial details of adverse aspects that were not found to be made out): [13] The Minister's office wrote to the Applicant in respect of his application for citizenship in relation to various matters of concern. These concerns included the Applicant's previous time in the United States. After a second marriage in the US, there had not been a divorce, suggesting that when he married Ms B in Australia, it was a bigamous marriage. A concern was also raised that the Applicant initially arrived in Australia on a tourist visa when it appeared that he came to pursue a relationship with Ms B. There were also concerns regarding the Applicant's stay in the US. [14] In the Applicant's application for citizenship, details were provided as to where he resided at various times. For instance, in his application it was indicated that he had lived in India between April 2003 and September 2008 and between September 2008 and October 2009, when in fact the Applicant was living in the US. In his application the Applicant had said he had visited the US on business between November 2002 and April 2003. [15] The Applicant's general response was that his partner, Ms B, who is an accountant, completed his application for citizenship and he had merely signed it, trusting that the details were correct and indicating that paperwork was not one of his strengths. [16] With regard to his second marriage in the US, the Applicant's evidence was that he believed that the paperwork to obtain a divorce was attended to by his second spouse in the US just as it had been attended to by his first spouse, also in the US, in relation to his second marriage. [17] The information provided in the application for citizenship [note: this was in fact in the personal particulars form] in relation to past employment was that the Applicant had worked as a sales manager in India between 1994 and 2010. There was no mention of him working in the US which he had for many years. The Applicant indicated in the application that he had lived in India, New Zealand and Australia with no mention of the US. [18] The Applicant had lived and worked in the US after he had been granted a ten year visa with there to be no one stay in that ten year period for more than 6 months during that ten year period. At one point he was taken into immigration detention in the US for overstaying in that ten year period and charged accordingly. However, it appears that the matter was resolved and the Applicant's continued stay in the US was regularised. Nonetheless, there was no disclosure of this charge in the Applicant's application for citizenship in Australia. [19] Furthermore, details of past employment supplied by the Applicant in his application for citizenship was incorrect. [20] The Applicant and Ms B have now separated. In the Applicant's application for a partner visa on 6 April 2013, it was stated that he had not been married or in a defacto relationship with any other person than Ms B. In a Queensland Marriage Certificate relating to the Applicant's marriage to Ms B, the Applicant's marital status was stated to be "Never Validly Married" as opposed to "never married". In the case of Ms B, it was "never married". [21] In a Statutory Declaration made on 6 July 2020 the Applicant states:- The decision made by the delegate of the Minister, reflects the disappointment about the non-disclosure of my marriage and life in the US. I did not intentionally conceal that information. My circumstances, fear, trauma and disappointment in life, I was undergoing at that time period pressurized me with a tremendous stress to accommodate any way to apply for residency. I sincerely apologise for my mistakes in my life for giving such information without full disclosure. [22] There is a letter in evidence dated June 12, 2022 from the Applicant's second wife in the US. In that letter she states that their marriage ended in 2009. She goes on to state that she was to arrange for the divorce but the process was difficult for her and she lacked the funds to see it through. A further matter she had considered was that, as the Applicant had left the country, it probably wasn't necessary in any event. The letter also states that after ten years she was contacted by the Applicant and the Applicant was helping financially to have the matter finalised. It appears that this action on the part of the Applicant was prevented by the problems he was having with his citizenship application. [23] During the hearing it was put to the Applicant by the Respondent that the Applicant should not have simply left it to his wife in the US without following the matter up earlier. It is clear that the Applicant was able to contact his wife in the US once it had become a problem for him. It might be that the Applicant neglected to ascertain that the divorce had gone through particularly when he had gone through a previous divorce from his first wife in the US, which she had attended to, and of which he had been made aware. DISCUSSION [24] In Australia, the applicant appears to have assimilated well. During his time with Ms B from whom he is now separated, he was very supportive of her and in particular with regard to her ill-health for several years. This had previously been indicated by her in support of a partner visa application. … [28] One can only speculate what information Ms B had at the time she filled out the citizenship form on the Applicant's behalf, or whether she simply acted on limited information supplied to her by the Applicant. The Applicant does say, however, that he gave Ms B his passport. Whatever the case, the Applicant signed the application and declared that the information supplied was true and correct which it clearly was not. At the very least, the Applicant did not responsibly check the information contained in the application. That the Applicant deliberately presented false information is speculative. What is clear is that the Applicant did not demonstrate an appreciation of the need to provide clear and accurate information as a necessary part of an application for citizenship. [29] Since being in Australia, the Applicant has established a successful metal recycling business which expanded into the repair of white goods. This is certainly to his credit. In India he completed high school. He retains an accountant to assist with the accounting aspects of the business. [30] The Applicant called witnesses in relation to his character. Mr Mohamed Yaghi gave evidence of his friendship with the Applicant. Mr Yaghi is an accountant and has been a neighbour of the Applicant for many years. He said he regarded the Applicant as a man of his word and was also as a charitable man. Mr Yaghi would see the Applicant at the mosque and sometimes they would have coffee together. Mr Yaghi had made a Statutory Declaration dated 22 January 2020. [31] Mr Mohamed Nadvi gave oral evidence. Mr Nadvi read prayers at various mosques and had come to know the Applicant. He said that over the last couple of years he would see the Applicant once or twice a month and regards the Applicant a generous and charitable man of good standing in the community. Mr Nadvi agreed that it was someone else who prepared the Statutory Declaration and although he signed it, his English was not good and it may have contained some errors including that he had known the Applicant for more years than was in fact the case. [32] Mr Khobor Jaghbir gave oral evidence and had made a Statutory Declaration dated 23 January 2020. Mr Jaghbir said he was a mobile mechanic. He said he had known the Applicant for many years and was a close friend. He would [see] the Applicant several times a week. Mr Jaghbir said that the Applicant told him of the application for citizenship which the Applicant had made and that the application form was completed by Ms B. He also attested to the Applicant's charitable nature. Further, he said how the Applicant was remorseful for not checking his application. [33] Whatever might be said regarding the Applicant's feeling of remorse, he had wanted to keep thing simple and avoid complications with the application and that was the suggestion made to him by Ms B. The Applicant let the application proceed as it was and did not take the responsibility to ensure that the information in the application was true and correct such that there was a disregard for the process which a responsible member of the community would consider to be of upmost importance especially in dealing with government and when the privilege of citizenship was being sought. 14 The Tribunal's conclusions were as follows: [38] At the hearing the Applicant presented himself in a genuine way. He detailed how he had built a successful business and in that has contributed in a positive way to society, employing people and paying taxes. Although there was the infraction in the US that saw him before a Court, there is no record that the Applicant has any criminal convictions and no history of violence. He has brought evidence from witnesses who described his charitable nature and involvement in the local community. The Applicant has also regularised his immigration status in Australia and is the holder of a permanent visa. [39] Despite those positive matters there is a history of transgressions in relation to immigration to provide information that was not false in his application for citizenship when dealing with government authority. In particular, his application for citizenship was based on information that was incorrect and misleading. [40] Whilst the Applicant sought to attribute blame for this to Ms B, it does not excuse his personal responsibility to provide accurate information to government. This is the very government from whom he sought the conferral of citizenship. As previously outlined, there have been a number of times where the Applicant has not complied with government requirements. [41] Such requirements are not simply matters of government but go to a standard of conduct existing in the community. In my view the necessity of acting responsibly, particularly with regard to official matters, is the expectation for a person showing moral qualities required of a person of good character. [42] In respect of the current application for citizenship and on the evidence, I am not satisfied that the Applicant is a person good character within the meaning of and as required by the legislation. This does not mean that the Applicant is any way precluded from making a fresh application for citizenship in the future.

Ground 1 15 Mr Balladraf submits that because the Tribunal did not make a finding as to Ms B's part in providing the false information in his visa and citizenship application forms and in his Queensland marriage certificate, and did not make a finding as to whether he deliberately presented false information in those documents, the consideration of the Tribunal's decision should be confined to the reasons at [39]-[41]. Those paragraphs are characterised as being to the effect that, despite the matters that went to his credit, he did not discharge his responsibility to provide accurate information to the government. This was relevant to adjudging the moral qualities required of a person of good character. It is said to entail looking to the past and not to the future (more accurately, the present), and a failure to consider whether, despite his past conduct, he was a person of good character by the time of the Tribunal decision. He submits this entailed a failure by the Tribunal to address the requirements of s 21(2)(h) of the Citizenship Act, going so far as to amount, in effect, to a failure to complete the exercise of its jurisdiction. 16 I am unable to accept those submissions. 17 First, it is plain from the Tribunal's reasons at [6], [37] and [42] that the correct test was stated as to the timing of the state of mind required by s 21(2)(h) of the Citizenship Act. Viewed in this way, Mr Balladraf faces a steep hurdle in demonstrating that the Tribunal, having at the outset and subsequently stated the correct test, then by implication and choice of words failed to apply it. Any mere infelicity of language will not suffice to make good that proposition, and it is not apparent that even such infelicity is present in the Tribunal's reasons. 18 Secondly, I do not consider that the Tribunal's conclusions at [39]-[41] can or should be considered in isolation from the rest of the reasons. Rather, they should be considered and understood in that overall context, and in particular in the context of the portions reproduced above as to the principles to be applied in assessing character where the material going positively and negatively as to character was considered and discussed. When that is done, it is clear that the Tribunal was assessing the past events and their relevance to the present state of affairs as pertinent to Mr Balladraf's current character. 19 Thirdly, read fairly and without even resort even to the required beneficial reading, I am unable to accept that the Tribunal was doing anything other than weighing the adverse material in considering his past actions. This was especially so with respect to the false information provided in Mr Balladraf's visa and citizenship applications, including his attitude towards that conduct in, to at least some extent, shirking responsibility for what he had done. This was weighed against the positive material standing to his credit. The Tribunal was ultimately not satisfied that the latter went far enough to outweigh the former. Thus, as at the time of the Tribunal's decision, it was not satisfied that Mr Balladraf was of good character as required, having regard to his past conduct, even with the benefit of considerations standing to his credit. 20 It follows that ground 1 must fail.

Ground 2 21 This ground turns on particular language used in both written and oral submissions to the Tribunal. Specifically (emphasis added): (a) in the concluding sentence of 21 paragraphs of closing written submissions over just over six pages, it is stated "Despite his imperfections I respectfully submit that the Tribunal should be satisfied that he is now of good character"; (b) in the last substantive sentence of closing oral submissions over 10 pages of transcript, it was said "So, reputation doesn't equate to good character but may be indicative of it, and in my submission that despite his imperfections and the flaws in his character, the tribunal should be satisfied that he is now of good character". 22 The asserted vice is that the Tribunal did not overtly adopt the concept embodied in the use of the word "now" by using such language itself, and thus, it is said, did not focus as required upon the state of Mr Balladraf's character as at the time of the decision to be made. However, as with the submission in relation to ground 1 that the conclusions should be read in isolation, this in substance suggests an exercise in taking the words used in submissions out of context and has the effect of suggesting that artificial precision in the use of language by way of repetition of the exact words used in submissions if required, rather than having regard to the substance of what was being said by the Tribunal. 23 The reference to "now" was, in context, a summary way of referring in conclusion to the burden of the preceding submissions, both written and oral. The substance of both forms of submissions was that the Tribunal should give greater weight to the material reflecting positively on Mr Balladraf's character as better reflecting the sort of person he was by that time. Those submissions correspondingly sought to downplay the significance of the false information that had been provided. Reading both sets of submissions and considering how the substance of what was advanced was addressed by the Tribunal shows that no material and substantive part of what was being advanced was overlooked, as opposed to merely departing from the way in which it was expressed and some aspects of the detail. 24 The Tribunal ultimately did not regard the positive material identified and relied upon as outweighing the negative material by way of false information provided so as to be satisfied that Mr Balladraf was of good character at that time. In doing so, the Tribunal expressly pointed out that Mr Balladraf could apply for citizenship again in the future, which clearly enough indicates that the Tribunal was having regard to Mr Balladraf's character in that particular moment in time and that this assessment could change in the future. The Tribunal did not have to adopt any particular language in what was being put to it or address it in any particular way to adequately address the substance of what was being advanced. There was no error as alleged in the approach taken by the Tribunal to the submissions that were before it. 25 It follows that ground 2 must also fail.

Conclusion 26 As both grounds of appeal have failed, the appeal must be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.

Australian Citizenship Act 2007(Cth)ss 20, 21(1), 21(2)

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